The FTS: entrepreneurs who combined "simplified" and patent, and then "flew" from the patent, can pay taxes on the USN, rather than on the FNE

The entrepreneur, who until 2017 combined the SPE and the "simplified", and then lost the right to a patent, can pay a "single tax" on USN, rather than personal income tax, on "patent" activity. This conclusion follows from the letter of the Federal Tax Service of Russia from 07.07.17 No. SD-3-3 / 4616 @.
According to the current version of paragraph 3 of paragraph 6 of Article 346.45 of the Tax Code of the Russian Federation, with the loss of the right to apply the SPN, the taxpayer is deemed to have transferred to the USN or ESKHN (if he applies the appropriate special regime).
Until 2017, the wording of this paragraph was different: in the event of the loss of the right to use the SPE, the entrepreneur is considered to have switched to a general taxation regime from the beginning of the tax period for which he was granted a patent. At the same time, the simultaneous application of OSNO and USN is not provided for by the Tax Code. Because of this contradiction in the tax legislation between taxpayers and inspectors, disputes arose: are the rules established by clause 6 of Article 346.45 of the Tax Code of the Russian Federation applicable only to those entrepreneurs who acquired a patent during the application of the general regime? Or are they applicable to those who simultaneously used the USN with the purchase of a patent? The tax authorities stated that if an entrepreneur combining the patent system of taxation and "simplified taxation" lost the right to the SPE, then for the period of its application he is obliged to pay taxes under the OCHA.
However, the Supreme Court in the ruling of 20.01.17 No. 301-KG16-16143 came to the opposite conclusion. As the court pointed out, the USN in the case of its application by an individual entrepreneur is common to the SPE, within the framework of which the taxation of income only for certain types of activities of the taxpayer. At the same time, Chapter 26.5 of the RF Tax Code "Patent system of taxation" does not say that the loss of the right to a patent entails also a loss of the right to the USN. On this basis, the judges decided that after the "rally" with the SPT in 2014, the entrepreneur legitimately calculated a single "simplified" tax, and not personal income tax. Also, the Supreme Council recalled that since 2017, in the new version of paragraph 6 of Article 346.45 of the Tax Code, the legislator has eliminated the contradiction in the law, allowing the transfer of the taxpayer to OSNO, USN, ESKHN (in case of applying the appropriate tax regime). Considering that acts of tax legislation should be formulated in such a way that everyone knows exactly what taxes (fees), when and in what order he should pay, and all the irremovable doubts in their interpretation are resolved in favor of the taxpayer, the decision of the inspection on the addition of personal income tax is recognized as illegal .
In turn, the Federal Tax Service took into account the position of the Supreme Court. The tax authorities reported: if the right to use the SPE for certain types of activities is lost in the case of application of the USN by the entrepreneur, the taxpayer has the right to switch to the appropriate taxation regime.