Supreme Court: the entrepreneur, who combined the SPE and the "uproschenku" and then lost the right to the patent may pay taxes under the simplified tax system

Some time ago, the Supreme Court came to the conclusion that if the IP that combines patent tax and the "simplified tax" system, lost the right to PSN, over the period of its application, he is obliged to pay taxes in the overall tax regime (see "Supreme Court:. Entrepreneur, combining USN and PSN, with the loss of the right to a patent shall be obliged to pay for "patent" activities to personal income tax, rather than the simplified tax system tax "). However, recently, regarding a similar dispute, the judge took the opposite position of the sun. Namely, having lost the right to use the SPE to one of the activities and retaining the right to use the simplified tax system, the taxpayer has to pay taxes under the "simplified" and not the general tax system. Details - in the determination of the number 304, 1/6/16 KG16-1457.
The essence of the dispute
In 2013, the entrepreneur along with PSN (activity - leasing of non-residential premises) is also applied USN on the same type of activity. Due to the delay in payment for IP patent has lost the right to use this special regimes. Without disputing the fact of loss of rights to the SPE, the taxpayer submitted to the inspection declaration for STS to include all income, including the type of activity for which he was granted a patent. He also filed a declaration of personal income tax, where the amount of tax payable was $ 0.
However, inspectors have stated that for the tax period in which the patent was applied, IP had to pay taxes under the general tax regime. Officials referred to paragraph 3 of paragraph 6 of Article 346.45 of the Tax Code. According to this rule, the taxpayer is deemed to have forfeited the right to use PSN and gone over to the general taxation regime from the beginning of the tax period for which it has been granted a patent. As a result, inspectors assessed that the personal income tax, penalties and interest.
The court's decision
The court upheld the taxpayer, pointing to the next. Since STS applies to all activities carried out by the taxpayer, this special regime can not be used simultaneously with Ba, since the latter also applies to all the activities carried out and not on its individual species. The same position is expressed in the definition of the Constitutional Court dated 16.10.07 number 667-O-O. In addition, Article 346.13 of the Tax Code does not mention such a ground for termination of the use of the simplified tax system, as the loss of the right to use PSN.
Thus, in the case of simultaneous application of the simplified tax system and PSN, and the loss of patent rights, the entrepreneur is entitled to recalculate and pay the tax on the USN in part of the revenue from "patent" activities, including the amount of income in the tax return for the USN. Accordingly, the inspection there were no grounds for the accrual of personal income tax, penalties and fines.