The status of a tax resident is not affected by citizenship, place of birth, residence or the fact of permanent registration. This means that citizens of the Russian Federation, foreigners, and stateless persons can be residents.
According to the Tax Code of the Russian Federation, an individual is recognized as a tax resident of the Russian Federation if he is in the country for at least 183 calendar days for 12 consecutive calendar months (Article 207 of the Tax Code).
According to Russian tax legislation, as a rule, the status of a resident is determined definitively based on the results of a calendar year — the personal income tax period.
How should an employer whose employee has left
Consider the example of a person who left Russia. If during this period he continued to receive a salary from a Russian employer, then at the end of the year in which he lost the status of a tax resident, the employer will have to withhold the required amount of personal income tax in the form of the difference between the tax amount of 13-15% and 30%. It is worth noting that the total amount of deduction should not exceed 50% of the paid income.
If the tax agent could not withhold the tax, then he must notify the tax authority and the taxpayer about it. Such notification must take place no later than March 1 of the following year.
The form of the notification of the inability to withhold tax, the amounts of income from which the tax has not been withheld, and the amount of the withheld tax, as well as the procedure for its submission, are approved by Order of the Federal Tax Service of Russia No. ED-7-11/753 dated 10/15/2020. Then, a non-resident employee is obliged to pay the difference independently.
According to the Tax Code, the exercise of labor duties outside the territory of the Russian Federation is not subject to personal income tax, because such income is not considered received in the Russian Federation. If the employer continues to withhold tax at the rate of 13-15% despite the fact that the employee has left the country for a long period, then, on the contrary, he overpays the tax.
Who will pay the fine for the unpaid tax
If the employer does not recalculate the tax and does not notify the tax authority about it, then under Article 123 of the Tax Code he faces a fine of 20% of the amount to be withheld or transferred. Such punishment is applied to a legal entity, while the employee himself is not threatened with a fine.
To date, the courts consider that the payment of a fine by a legal entity for violation of legislation, including tax, does not impose material liability on the employee.
If during the audit it turns out that the incorrect withholding of taxes occurred in the personal interests of the CEO of the company, then there is a risk of criminal liability under Article 199.1 of the Criminal Code.