Patent for catering services. Registration of catering on a patent Patent for catering services

According to paragraph 2 of Article 346.26 tax code Russian Federation (hereinafter referred to as the Code) the taxation system in the form of a single tax on imputed income for certain types activities can be applied by decisions of representative bodies municipal districts, urban districts, legislative (representative) bodies state power the federal cities of Moscow and St. Petersburg, in particular, in relation to the provision of catering services through catering facilities that do not have a customer service hall.

Article 346.27 of the Code determines that public catering services are services for the manufacture of culinary products and (or) confectionery, creating conditions for the consumption and (or) sale of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities. Public catering services do not include services for the production and sale of excisable goods specified in subparagraphs 3 and 4 of paragraph 1 of Article 181 of the Code.

At the same time, a public catering facility that does not have a customer service hall is 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.

In accordance with the Classification of public catering establishments (GOST R 50762-2007), approved by order of Rostekhregulirovanie No. 475-st dated December 27, 2007 (hereinafter referred to as the Classification), a buffet is a public catering establishment located in residential and public buildings, selling with consumption on the spot a limited range of catering products from semi-finished products of a high degree of readiness, including cold dishes, snacks, hot, sweet dishes of simple preparation, flour culinary, bakery and confectionery products and purchased goods.

According to paragraph 4.1. of this Classification, buffets belong to enterprises organizing the sale of public catering products (with possible consumption on the spot) along with culinary shops, cafeterias, small retail enterprises trading network.

In this regard, for the purposes of Chapter 26.3 of the Code, entrepreneurial activity in the manufacture and sale of culinary products own production through a buffet, bar counter, etc. is recognized as a public catering service carried out through public catering facilities that do not have a customer service hall, and can be transferred to the payment of a single tax on imputed income for certain types of activities.

In this case, to calculate the amount of a single tax on imputed income for certain types of activities, the physical indicator “Number of employees, including an individual entrepreneur” is used with a base income of 4,500 rubles per month.

Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of the Russian Federation S.V. Razgulin

Expert comment

UTII: sale of culinary products through a catering facility

The payment of UTII transfers activities for the manufacture and sale of culinary products of own production through a buffet, a bar counter, that is through a catering facility.

Interestingly, the sale of culinary products of our own production includes the sale of soups and drinks. But if we are talking about the sale of soups made from dry ingredients and water through vending machines, then such activity is recognized as the provision of catering services, which is carried out through public catering facilities that do not have a customer service hall (letter of the Federal Tax Service of Russia dated 04.22.2008 No. ShS-6-3/305).

So, when qualifying culinary products for their own production, judges indicate that the goods being sold must have their original properties changed, that is, signs of culinary processing(Resolution of the Federal Antimonopoly Service of the Moscow District of August 16, 2011 No. А41-24446/10).

Also, the sale of culinary products includes the sale of purchased food products in the cooking room. This is also stated in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 23, 2009 No. 17123/08. The judges issued a verdict that the retail sale of culinary products and other food products through a catering facility is a catering service activity.

The sale of products in a specially designated dining room is not regarded as an independent type of activity - retail trade.

In addition, “taxable” activities in the provision of catering services include:

• activities related to the production (manufacturing) and retail sale of confectionery products, hot and cold drinks through a production and sales point located in mall and does not have a visitor service hall (letter of the Ministry of Finance of Russia dated February 24, 2012 No. 03-11-06 / 3/15);
• activities in the field of production and sale soft drinks and cocktails (milk, sour-milk, fruit) obtained by mixing the relevant ingredients by a catering employee immediately before use in catering facilities that have and do not have visitor service halls.

However, activities for the manufacture and sale of oxygen cocktails carried out through retail facilities are not transferred to the payment of UTII (letter of the Ministry of Finance of Russia dated February 22, 2012 No. 03-11-06 / 3/13 *), if:

• services are provided through leased pavilion with dedicated visitor service hall(but not more than 150 sq. m.), then such activity should be considered as entrepreneurial in the field of catering services, carried out through a catering facility that has a visitor service hall;
• the provision of services is carried out through a pavilion in which a visitor service room is not allocated, then such activity can be attributed to entrepreneurial in the field of catering services, carried out through a catering facility that does not have a customer service hall (letter of the Ministry of Finance of Russia dated 10.01.2012 No. 03-11-11 / 337).

In their letter No. 03-11-11/10 dated 23.01.2012, the specialists of the Ministry of Finance noted that the activities of a catering facility, both with a customer service hall and without a service hall, regardless of its location and type, always provide for the organization of consumption of purchased products on site.

Entrepreneurs cannot pay UTII in relation to services for the preparation and delivery of catering products to their homes, since they are not related to the use of public catering facilities (letter of the Ministry of Finance of Russia of December 10, 2010 No. 03-11-06 / 3/166).

Need to create the necessary conditions for consumption

In order to have the right to apply the taxation system in the form of UTII in relation to the sale of culinary products through catering facilities, it is necessary to comply with the established requirements. One of these requirements is the creation of conditions for the consumption and sale of finished culinary products.

Often, payers are mistaken that they have created such conditions for the possibility of consuming culinary products. So it was in the decision of the Federal Antimonopoly Service of the Urals District dated January 30, 2012 No. F09-9298 / 11.

The Company provided municipal educational institutions with services for catering for schoolchildren. Culinary products were prepared by staff in accordance with the requests of institutions, and their consumption by students took place in canteens.

Schools did not transfer to the society the premises necessary for catering for students. He was provided only with the equipment necessary for heating semi-finished products.

In this case, the arbitrators insist that, for the purposes of taxation, a person manufacturing culinary products must create conditions for their consumption or sale of finished culinary products.

As a result, the judges ruled that the provision of services municipal enterprise for providing students with culinary products is not the provision of catering services, in which the service is provided directly to the consumer.

In addition, the payer did not create conditions for the consumption of culinary products.

The consumption of hot meals was organized by the municipalities themselves. educational institutions who were the owners of the premises. Therefore, the company had no reason to apply the taxation system in the form of UTII in relation to these catering facilities.

Tax consultant I.M. Khomenko

47. Public catering services provided through public catering facilities with an area of ​​​​a visitor service hall of not more than 50 square meters for each catering facility:

One of the most common activities that fall under UTII is the provision of catering services. Read more about taxation of catering services in this article.

What is considered catering

Public catering is a service for the manufacture of culinary products and (or) confectionery products, the creation of conditions for the sale and (or) consumption of products on the spot, as well as conditions for leisure activities (Article 346.27 of the Tax Code of the Russian Federation). Manufacturing involves mixing products (eg preparing salads, sandwiches) and/or modifying their original properties (eg frying frozen convenience foods or fresh meat). This is what catering differs from the sale of finished products at retail (letter of the Ministry of Finance of the Russian Federation dated 04.28.07 No. 03-11-05 / 85). And leisure services include organizing music services, holding concerts, variety and video programs, organizing board games(for example, billiards), etc.

Entrepreneurs and companies that provide catering services through public catering facilities can be transferred to pay a single tax on imputed income:
- having a visitor service hall (the area of ​​​​the premises should be no more than 150 sq. m.);
- do not have a customer service hall.

At the same time, the public catering facility must belong to the taxpayer by right of ownership or be provided to him for use under a lease agreement or other similar agreement (letter of the Ministry of Finance of the Russian Federation dated 03.20.07 No. 03-11-04 / 3/72). At the same time, a taxpayer who produces and sells alcoholic beverages is not entitled to work on the “imputation”. But if purchased alcohol and beer are sold through a public catering facility, then such activity can be transferred to the payment of UTII (letters of the Ministry of Finance of the Russian Federation dated 18.01.08 No. 03-11-04 / 3/6, dated 12.17.07 No. 03- 11-04/3/497). In addition, activities for the production and sale of alcoholic cocktails obtained by mixing the relevant ingredients by a bartender in restaurants, cafes, bars and other public catering facilities also fall under the "imputed" regime (letter of the Ministry of Finance of the Russian Federation dated 16.06.08 No. 03-11-04 / 3/275).

In addition, a company that does not sell food products through public catering facilities, but delivers them to customers at home or in the office, is not transferred to the “imputation” (letters of the Ministry of Finance of the Russian Federation of July 25, 07 No. 03-11-04 / 3/295). An organization engaged in such activities must apply either a general or a simplified taxation regime.

Catering facility with service hall

A public catering facility with a visitor service hall is a building (part of it) or a building intended for the provision of catering services, which has a specially equipped room (open area) for the consumption of finished culinary products, confectionery, purchased goods and leisure activities. This category includes restaurants, bars, cafes, canteens and eateries (paragraph 20 of article 346.27 of the Tax Code of the Russian Federation).
If the taxpayer provides catering services to visitors in the service hall, then when calculating UTII, a base yield of 1,000 rubles per month should be applied. At the same time, the physical indicator of profitability is the area of ​​​​the customer service hall in square meters (clause 3 of article 346.29 of the Tax Code of the Russian Federation).

The area of ​​the hall is understood as the area of ​​a specially equipped room intended for the consumption of finished products, confectionery and purchased goods. The size of the area is determined on the basis of title and inventory documents. These include:
- documents containing necessary information on the purpose, design features and layout of the premises;
- contract of sale non-residential premises;
— technical passport, plans, schemes, explications;
- a lease (sublease) agreement for non-residential premises or a part thereof;
- permission to serve visitors in an open area and other documents.

When determining the value of a physical indicator, it should be remembered that the area of ​​​​the visitor service hall includes only a place that is intended directly for eating and spending leisure time. Such premises as, for example, a kitchen, a place for distributing and heating finished products, a cashier's place, utility rooms, etc., should not be included in the area of ​​\u200b\u200bthe customer service hall (letter of the Ministry of Finance of the Russian Federation dated 03.21.08 No. 03-11-04 / 3 / 143).

A catering facility may have several separate customer service halls. The Ministry of Finance in this situation recommends taking into account title and inventory documents. So, if according to the documents the objects are not separated, the premises are recognized as one object of the catering organization. The area of ​​the service hall in such a situation is calculated in total for all premises. Otherwise, the area of ​​the service hall should be calculated for each room separately (letters of the Ministry of Finance of the Russian Federation dated 30.03.07 No. 03-11-04/3/98, dated 08.02.07 No. 03-11-04/3/41).

And when in the same room are different types activities, for example, catering and retail services are provided, then when calculating the tax, the total area of ​​\u200b\u200bthe premises is taken into account. This position is taken by specialists of the Ministry of Finance (letter of the Ministry of Finance of Russia dated 03.07.08 No. 03-11-04/3/311). Argument: Chapter 26.3 of the Tax Code does not provide for the distribution of the area of ​​the trading floor (visitor service hall) when several types of activities are carried out on the same area. This means that in the described situation, the calculation of UTII for the provision of catering services is based on the total area of ​​the customer service hall, and retail- the total area of ​​the trading floor.

No service hall

If a catering facility does not have products specially equipped for consumption, then it is recognized as a catering facility that does not have a customer service hall (Article 346.27 of the Tax Code of the Russian Federation). Such objects include kiosks, tents, culinary shops (sections, departments) and other similar public catering outlets. An example is the manufacture and sale of whites and pasties through a trailer on the market. Such activities relate to catering services that fall under UTII (letter of the Ministry of Finance of the Russian Federation dated February 20, 08 No. 03-11-05 / 36). Please note: from 2009, the sale through vending machines of goods or catering products (for example, coffee) made in these vending machines will be classified as retail ( the federal law dated July 22, 2008 No. 155-FZ).

Now the issue of taxation of such machines is controversial. So, from January 1, 2008, vending machines were included in the list of objects of stationary trade that do not have trading floors(Article 346.27 of the Tax Code of the Russian Federation). However, the Ministry of Finance indicated: if through vending machine culinary products of own production are sold (soups, drinks made from dry ingredients and water), UTII is paid as when providing catering services through catering organizations that do not have a customer service hall (letters dated 03.28.08 No. 03-11-02 / 35, dated 12.05.08 No. 03-11-05/119).

When calculating a single tax on catering services without a customer service hall, a base income of 4,500 rubles per month should be applied (clause 3 of article 346.29 of the Tax Code of the Russian Federation) and a physical indicator - the number of employees, including an individual entrepreneur (clause 3 of article 346.29 of the Tax Code of the Russian Federation) .

If a individual entrepreneur provides catering services in a room with a specially equipped hall (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities, the area of ​​\u200b\u200bwhich is not more than 50 square meters. m., then in relation to such services he has the right to apply patent system taxation. If the premises rented by him does not have such a hall (open area), he is not entitled to apply the patent system.

(Letter of the Ministry of Finance of Russia dated November 16, 2012 No. 03-11-11/343).

Question: An individual entrepreneur provides catering services and applies the simplified tax system. IP rents a room of 70 sq. m. The organization from which the premises are rented is not a public catering facility. Is an individual entrepreneur entitled to switch to the patent taxation system from 2013?

Answer:

The Department of Tax and Customs Tariff Policy has considered the appeal on the application of the patent system of taxation and reports the following.

In accordance with paragraphs. 47 paragraph 1 of Art. 346.43 of the Tax Code Russian Federation(hereinafter referred to as the Code), the patent taxation system can be applied to the entrepreneurial activities of individual entrepreneurs in the field of public catering services provided through public catering facilities with a visitor service hall area of ​​​​not more than 50 square meters for each public catering facility.

According to paragraphs. 6, 13 and 14 paragraph 3 of Art. 346.43 of the Code, the area of ​​​​the visitors' service hall is understood as the area of ​​​​specially equipped premises (open areas) of a public catering facility intended for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities, determined on the basis of inventory and title documents .

Public catering services are understood as services for the manufacture 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 leisure activities. Public catering services do not include services for the production and sale of excisable goods specified in paragraphs. 3 p. 1 art. 181 of the Code.

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

At the same time, according to paragraph 4 of Art. 346.43 of the Code for the purposes of Ch. 26.5 of the Code, inventory and title documents include any documents held by an individual entrepreneur for an object of a stationary trading network (public catering organization) containing information about the purpose, design features and layout of the premises of such an object, as well as information confirming the right to use this object (purchase agreement -sales of non-residential premises, technical passport for non-residential premises, plans, diagrams, explications, lease (sublease) agreement for non-residential premises or its part (parts), permission for the right to serve visitors in an open area and other documents).

Thus, if an individual entrepreneur provides the above catering services in a room with a specially equipped room (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities, the area of ​​\u200b\u200bwhich is not more than 50 square meters , then an individual entrepreneur in terms of the provision of such catering services has the right to apply the patent system of taxation.

If the leased premises in which public catering services are provided, according to the lease agreement, do not have a specially equipped premises (open area) for the consumption of finished culinary products, confectionery and (or) purchased goods, as well as for leisure activities, then the individual entrepreneur does not has the right to apply the patent system of taxation in relation to such catering services.

Deputy Director

Department of Tax

and customs tariff policy