A. BELOZEROV, I. PASTUKHOV
A. Belozerov, 1st category specialist of the legal department of the Department Federal service Tax police of the Russian Federation in Moscow.
I. Pastukhov, Head of the Legal Department of the Moscow Office of the Federal Tax Police Service of the Russian Federation.
Paragraph 1 of Article 7 of the Law of the Russian Federation “On Value Added Tax” states: “The sale of goods (work, services) to enterprises is carried out at prices (tariffs) increased by the amount of value added tax. At the same time, in the settlement documents for the goods sold (work, services) the tax amount is indicated on a separate line."
Despite the clearly formulated requirement of the legislator, VAT is not always highlighted in settlement documents. Let's try to understand what consequences for the taxpayer are the failure to allocate VAT on the payment amount, what is the practice of the tax authorities in solving this problem and how lawfully they are solving it.
The provision of the Law we have cited can, in principle, be interpreted in two ways. First option: the legislator assumes that in any monetary amount, listed for goods supplied (work performed, services rendered), the sale of which is subject to value added tax, contains the amount of VAT (since including the amount of VAT in the price is the taxpayer’s obligation established by law). The second possible interpretation: goods must be sold at a price increased by the amount of VAT, but if the amount of VAT is not highlighted in the payment documents, it means that the taxpayer has violated this requirement of the Law and the amount paid by him to the counterparty does not contain VAT.
The legislator's requirement to include the amount of tax in the price of a product, as we see it, means the requirement to take into account the amount of VAT when calculating the price of a product (work, service) along with other components of the price. The amount of tax is a necessary, legally established part of the price of a product (work, service).
This position was confirmed in paragraph 9 of the Review of judicial practice of application of legislation on value added tax, brought to the attention of the courts by letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 10, 1996 No. 9. In this paragraph of the Review, the case of an appeal to the arbitration court of a machine-building plant with a claim to recover from the buyer of his products the amount of value added tax not paid by the buyer when paying for the delivered products.
From the documents available in the case, it followed that an agreement for the purchase and sale of products was concluded between the plant and the organization - the buyer, in pursuance of which the plant shipped the products in a timely manner, and the buyer paid for them within the period established by the agreement in accordance with the settlement documents issued by the seller. Subsequently, the seller turned to the buyer with a demand to pay an additional amount of value added tax calculated from the price of the product specified in the contract. In his opinion, the buyer organization remained obligated to pay the disputed amount, since by virtue of clause 1 of Art. 7 of the Law of the Russian Federation "On Value Added Tax" this tax is payable by the buyer in excess of the price of the product.
The arbitration court supported the plaintiff's position, citing the following arguments. According to Art. 454 Civil Code In the Russian Federation, the seller and the buyer independently determine the price of the item being sold. However, due to the mandatory instructions of the Law of the Russian Federation “On Value Added Tax”, the price agreed upon by the parties is subject to increase by the amount of value added tax (Clause 1, Article 7). The parties to the contract, when indicating the price of the product, did not make a reservation about the inclusion of value added tax in the corresponding amount. Under such circumstances, according to the court, the buyer had no reason to refuse to pay the amount of value added tax when making payments for sold products.
It should be noted that the plaintiff in the case considered incorrectly stated the provisions of Art. 7 of the VAT Law, indicating that the tax “is payable by the buyer in excess of the price of the product.” On the contrary, precisely due to the fact that VAT is included in the price and is part of the price, it is possible for the buyer to claim this underpaid part from the seller within the framework of civil law. legal relations between them. The seller’s demand to collect from the buyer the amount of tax, and not part of the price, would go beyond the scope of civil legal relations and would not be subject to satisfaction, since under the current legislation only authorized (tax, customs) authorities have the right to go to court with such claims.
The precedent set out in paragraph 8 of the Review is also of interest. During the inspection of the seller organization, the tax inspectorate found a violation of the procedure for calculating value added tax in certain transactions for the sale of goods and applied financial sanctions. According to the tax inspectorate, the failure to indicate the amount of value added tax in a separate line in the payment documents for payment for goods indicated that the buyer did not pay the amount of this tax to the seller when paying for the goods. Consequently, the seller was obliged, when determining the amount of tax for each specific transaction, to calculate it from the entire amount contained in the corresponding settlement document.
In his statement of claim, the seller argued that the amount of value added tax was paid by buyers when paying for the goods received and was included as part of the price of the goods in total amount specified in the payment documents for the relevant goods.
The arbitration court satisfied the claim based on the following. In accordance with Part 1, Clause 1, Art. 7 of the Law of the Russian Federation “On Value Added Tax”, the sale of goods (work, services) to enterprises is carried out at prices (tariffs) increased by the amount of value added tax. The plaintiff presented contracts with buyers and invoices issued by the latter for goods shipped. From a comparison of contracts and invoices, it was clear that when issuing an invoice to each specific buyer, the seller increased the price payable by the buyer for the goods (the contract price) by the amount of value added tax. Therefore in in this case the seller had the right to assume that the tax amounts were paid by the buyers, regardless of their failure to be highlighted as a separate line in invoices and settlement documents.
The court emphasized that in such cases, the burden of proving the inclusion of the tax amount in the price transferred by the buyer falls on the taxpayer (buyer, supplier).
It seems to us that when considering this dispute the court was not entirely consistent. Based on clause 9 of the Review from the presumption of inclusion of VAT in the price, which gives the supplier the right to recover from the buyer the amount of tax underpaid by the latter as an integral part of the price, the court denies this same presumption, placing the burden of proof of inclusion of the tax amount in the price on the taxpayer (clause 8) . In fact, based on the provisions of the Law “On Value Added Tax,” VAT is included in the price of any product (work, service), the sales turnover of which is subject to this tax according to the Law.
State Tax Service, authorized in accordance with paragraph 3 of Art. 10 of the VAT Law to develop and publish, in agreement with the Russian Ministry of Finance, instructions on the application of the Law, adheres to a different interpretation of the provision of Art. 7 of the Law: if the amount of VAT is not highlighted in the payment documents, then the amount paid by the taxpayer to its supplier does not contain VAT.
Paragraph 20 of the State Tax Service of Russia Instruction No. 1 of December 9, 1991, in force until November 30, 1995, “On the procedure for calculating and paying value added tax” (as amended on April 8, 1994) provided: “in cases where in settlement documents (instructions , requirements - instructions, requirements, registers of checks and registers for receiving funds from a letter of credit) confirming the cost of the purchased goods, the cost of value added tax is not allocated, then it is not calculated by calculation."
The State Tax Service prohibited an enterprise from calculating VAT on purchased assets if the enterprise did not have a document (for example, a payment order from this enterprise to the bank serving it), in which, in addition to the payment amount, the VAT amount was highlighted as a separate line. Accordingly, the enterprise could not refer to the fact that the amount of VAT it paid “sits inside” the amount specified in its payment order, and could not, having calculated the amount of VAT at the so-called “calculated” rate, set this VAT to itself as a credit (that is, attribute debit it to account 68, subaccount “Calculations for value added tax”), reducing the tax payable to the budget by the amount calculated by it.
At the same time, the Instruction did not directly prohibit the calculation of VAT by the purchasing enterprise in cases where in the primary accounting documents (for example, in the invoices or invoices of its supplier, in the delivery and acceptance certificates of work performed), confirming the cost of acquired material resources (work, services) , the amount of value added tax is not allocated. An enterprise could, having received an invoice issued by a contractor in which the VAT amount is not indicated, calculate the VAT independently (at the estimated rate) and offset this VAT to itself (that is, debit it to account 68, subaccount “Calculations for value added tax”) , thereby reducing the amount payable to the budget.
In paragraph 19 of the Instruction of the State Tax Service of Russia dated October 11, 1995 N 39 “On the procedure for calculating and paying value added tax” (as amended on March 14, 1996), the prohibition to calculate VAT by calculation is formulated more strictly: “In cases where in the primary accounting documents (invoices, invoices, invoices, cash receipt orders, certificates of completion of work, etc.) confirming the cost of acquired material resources (work, services), the amount of value added tax is not allocated, then in settlement documents (orders, requirements - orders, requirements, registers of checks and registers for receiving funds from a letter of credit) its calculation is not carried out. Therefore, the cost of acquired material resources (works, services), including the value added tax expected on them, is accounted for by the taxpayer on balance sheet accounts 10 “Materials”, etc. for the entire amount of the invoice presented, with subsequent write-off in the prescribed manner for production (handling) costs.”
Thus, the entire amount paid by the taxpayer for the goods (work, services) purchased by him must be attributed to the cost of his products. At the same time, the taxpayer does not have paid VAT on these goods (works, services), which means he is deprived of the opportunity to offset VAT. Thus, the State Tax Service introduces taxpayer liability for violation of the obligation to indicate the tax amount on a separate line in payment documents for goods (work, services) sold. She has no right to do this - the law does not establish such liability. Moreover, here the liability applies not to the taxpayer who did not indicate the VAT amount on a separate line in the primary accounting documents (that is, to the supplier), but to his counterparty - the buyer.
When considering the consequences of compliance with this requirement of the State Tax Service by taxpayers, the following must be taken into account. In accordance with paragraph 2 of Art. 7 of the Law of the Russian Federation "On Value Added Tax" the amount of tax subject to payment to the budget is defined as the difference between the amounts of tax received from buyers for goods (works, services) sold by them and the amounts of tax actually paid to suppliers for material resources (works) , services), the cost of which is included in production and distribution costs.
The VAT paid by the buyer of a product is always equal to the VAT received by the supplier of that product. This is the same amount: what the supplier credits to his account 68, the buyer later debits his account 68. According to the State Tax Service, if VAT is not highlighted in the issued invoice, it means that the payer, when paying the invoice, paid the price of the product (work, service), not increased by the amount of tax, and the VAT paid by him is equal to zero. But then for the supplier of the corresponding product (work, service), the VAT received is equal to zero. In this case, the amount of tax payable to the budget by the supplier for this business transaction will always be zero.
The tax inspectorate, having identified the fact that VAT has not been allocated as a separate line in the primary or settlement documents of the taxpayer - the buyer, usually recalculates the VAT payable to the budget by the buyer, accordingly reducing the amounts charged by the taxpayer to the debit of his 68 account. Then the supplier of the buyer verified by the tax inspectorate, based on the point of view of the State Tax Service, has the right in his tax return for the corresponding period to show the VAT received for a specific transaction equal to zero. And in the event of a dispute with the tax authority, this supplier will be able, by presenting a copy of the inspection report of its counterparty, to prove that its actions are lawful.
Thus, the position taken by the State Tax Service and set out in paragraph 19 of Instruction No. 39 leads to a situation where the interests of both the taxpayer and the budget suffer.
However, in the same paragraph 19, the State Tax Service “resolves” the problem of budget interests, determining that tax amounts received from buyers include not only funds received into the accounts (cash) of the enterprise, but also tax amounts accrued based on reflected in account 46 “Sales of products (work, services)” of the cost of goods (work, services) sold.
The State Tax Service invites the taxpayer-supplier to calculate the received VAT not by accounting, but by calculation, that is, based on the presumption that the amount of value added tax is included in the amount of any payment. The position of the State Tax Service is internally contradictory. According to its logic, a situation is possible when VAT is not paid by the buyer when paying for delivered products (works, services), but a situation is impossible when VAT is not received by the supplier.
It may be noted that the position of the State Tax Service, set out in paragraph. 20 clause 19 of the Instructions, corresponds to the tax calculation procedure proposed in the draft Tax Code(as will be shown below), but does not comply with the current Law.
The procedure for payers to prepare value added tax calculations, which contains a reference to the “current procedure for offsetting tax on acquired assets” (that is, clause 19 of Instruction No. 39), also contradicts the requirements of the VAT Law. The tax authorities do not allow the taxpayer to determine the VAT paid by calculation.
In fact, VAT on general rule, established by Art. 7 of the VAT Law is contained “inside” the amount of any payment (of course, provided that these turnovers are subject to this tax according to the Law). Therefore, if the taxpayer-buyer, in the event of the supplier’s failure to allocate the amount of VAT in the primary documents, determined by calculation the amount of tax contained in the payment amount and entered this amount in column 5 of line 1 "a" of his calculation (tax return) for value added tax, his actions correspond to Law.
The last thing I would like to focus on is the solution to the problem we are considering in part two of the draft Tax Code.
In the draft, the legislator uses a fundamentally different approach to calculating VAT compared to the current legislation. The taxpayer's obligation to pay tax to the budget arises as a result of his having an object of taxation, that is, turnover, and does not depend on his receipt of tax amounts from his counterparties (buyers). This approach appears to be consistent with the general principles of functioning of the Russian tax system.
In accordance with Art. 446 of the draft, the amount of tax payable to the budget by a taxpayer carrying out operations for the sale of goods (works, services) is defined as the total amount of tax reduced by tax deductions, which is a percentage of the “single tax base" (that is, from the object of taxation, according to the terminology of today's tax legislation).
According to the project, the taxpayer will have to pay to the treasury not the difference between VAT received and VAT paid, as he does today, but the amount of VAT calculated by him independently from the proceeds from the sale of goods (works, services) at the appropriate tax rate (mainly at the rate of 22 percent ), reduced by “tax deductions”, that is, by the VAT paid.
At the same time, according to Art. 442 of the project, when selling goods (work, services), the seller is obliged, in addition to the price of the goods (work, service), to present the corresponding amount of tax for payment to the buyer. In settlement documents, primary accounting documents and invoices, the corresponding amount of tax must be highlighted on a separate line.
Tax deductions according to Art. 445 of the project are made on the basis of invoices issued by sellers when the taxpayer purchases goods (work, services), or on the basis of customs declarations or other documents confirming the import of goods into the customs territory of the Russian Federation.
As a general rule, only tax amounts presented by sellers when purchasing goods (work, services) or actually paid when importing goods into the customs territory of the Russian Federation, after the relevant goods (work, services) have been registered, are subject to deductions.
So, a solution to the contradiction we are considering in the project has been found. Regardless of whether the taxpayer receives VAT from the buyer (customer) or not, he will have to calculate the VAT based on the turnover of sales of his goods (works, services). For production tax deductions, that is, in order to reduce the tax payable to the budget by the amount of tax paid to suppliers, the taxpayer will have to comply with a number of requirements imposed by the Law, including the preparation of invoices.
Summarizing all of the above, we can draw the following conclusions.
Firstly, the provision of paragraph. 20 clause 19 of the State Tax Service Instruction No. 39, which prohibits the calculation of paid value added tax by calculation, is not based on the Law. It must be canceled either by the State Tax Service or by appealing it in court by interested parties.
Secondly, the legislation does not establish the taxpayer’s liability for failure to allocate the tax amount as a separate line in the settlement documents. The taxpayer - buyer has the right to assume that the amount of VAT is contained within the price of the goods (work, service) (if, of course, these turnovers are subject to value added tax according to the Law), and allocate it by calculation, guided directly by Art. 7 of the VAT Law, and not the provisions of paragraph 19 of the State Tax Service Instructions, which contradict the Law. Tax authorities, upon discovering facts of non-allocation of VAT in settlement documents, do not have the right to reduce the VAT that the taxpayer has set off for himself, if the VAT paid was calculated by the taxpayer from the amount of payment made by him at the estimated rate (today 16.67 or 9.09 percent, respectively) .
Thirdly, the taxpayer - the seller has the right to recover from the buyer the amounts not paid in settlements for the sold goods, which constitute value added tax, since VAT is a mandatory part of the price of goods (work, services) established by law.
Finally, fourthly, the problem under consideration will apparently be finally resolved with the adoption of the Tax Code (part two). According to the draft code, the taxpayer will be required to determine VAT by calculation based on taxable turnover, regardless of the actual receipt of VAT from the buyer (customer). However, before the Tax Code comes into force, the taxpayer has the right and obligation to be guided by the provisions of the Law “On Value Added Tax”, which we analyzed in the article.
(Provisions of this article are the private opinion of its authors.)
When paying for goods (works, services), the organization did not allocate VAT in the payment order. Is it possible to deduct VAT in this case? And how to avoid controversial situations in the future?
A.S. Elin, auditor
Four rules of scoring
The Tax Code puts forward four conditions, if simultaneously met, VAT can be deducted. Let's remind them:
1) goods (work, services) are accepted by the taxpayer for accounting (clause 1 of Article 172 of the Tax Code of the Russian Federation);
2) the amount of VAT was actually paid to the supplier of goods (works, services) (clause 1 of Article 172 of the Tax Code of the Russian Federation);
3) the purchased goods (work, services) are intended to carry out transactions subject to VAT (clause 2 of Article 171 of the Tax Code of the Russian Federation);
4) there is a properly executed supplier invoice, documents confirming the actual payment of tax amounts (clause 1 of Article 172 of the Tax Code of the Russian Federation).
Chapter 21 of the Tax Code of the Russian Federation does not contain other conditions for the use of deductions. But at the same time, each of these conditions has a specific implementation mechanism. For example, the fact that goods have been registered is confirmed by the reflection of their value in the debit of account 41 “Goods” and the credit of account 60 “Settlements with suppliers and contractors”. The amount related to these goods input VAT should be accounted for as the debit of account 19 “VAT on acquired assets” and the credit of account 60.
What confirms that the VAT amount has actually been paid to the supplier? First of all, payment documents indicating the repayment of debt for purchased goods (work, services). And as practice shows, when carrying out tax audits In order to deduct VAT, regulatory authorities require organizations to highlight the VAT amount in settlement and payment documents as a separate line. How legitimate is such a requirement?
VAT allocated!
In most cases, payments to suppliers are made in non-cash form. The rules for non-cash payments are regulated by central bank RF.
Thus, in a payment order, when filling out the “Purpose of payment” field, it is necessary to highlight the tax (VAT) payable in a separate line, otherwise there must be an indication that the tax is not paid. This requirement is established by subparagraph "h" of paragraph 2.10 of the Regulations of the Central Bank of the Russian Federation dated 10/03/02 No. 2-p "On non-cash payments", as amended on 03/03/03. Let us remind you that new edition The provisions came into force on June 1, 2003, and retained the obligation to reflect the amount of VAT in the “Purpose of payment” field.
A similar requirement has been established for registration cash documents. According to the resolution of the State Statistics Committee of Russia dated August 18, 1998 No. 88, in the cash receipt order on the line “including” the amount of VAT is indicated, which is recorded in numbers, and if the products (works, services) are not taxed, the entry “without tax” is made (VAT)".
As we see, the demands of the tax authorities are not groundless. They stem from the rules for filling out payment documents.
But what to do if the accountant, in the daily bustle, did not highlight the VAT amount in the payment order? Is it possible to offset the tax, since it was actually paid to the supplier?
Court and case
Not long ago, the Federal Arbitration Court of the Northwestern District issued a ruling on the legality of deducting VAT by a taxpayer whose payment documents did not have VAT records or erroneously indicated “without VAT” or “not subject to VAT” (ruling of the Federal Arbitration Court of the Northwestern district dated January 24, 2003 in case No. A56-17326/02). The provisions of Chapter 21 of the Tax Code of the Russian Federation do not indicate that failure to highlight the VAT amount as a separate line in payment orders deprives the taxpayer of the right to apply tax deductions. The court indicated that in order to apply the deduction, it is enough to highlight the VAT amount in the invoice. Thus, an error made in the execution of payment orders cannot deprive the taxpayer of the right to apply tax deductions if it is proven that he actually paid tax amounts to sellers of goods (works, services).
Better fix it
I would like to immediately warn organizations that, having familiarized themselves with the court decision discussed above, will not allocate VAT in payments. In our opinion, this is not worth doing!
Firstly, the court considered and made a decision on a particular case. And it is not a fact that if you find yourself in the same situation, much less in another region, the court will make a similar decision in your favor.
Secondly, the order of registration primary documents regulated at the level of by-laws and organizations are required to follow instructions on documentation business transactions.
If you accidentally missed a payment in which VAT is not highlighted, it is better to correct this error without waiting for a meeting with tax inspector. To do this, just write a letter to the servicing bank about changing the purpose of the payment. It is better to attach the second copy of the letter with the bank’s mark to the payment order, which erroneously did not indicate the VAT amount. And from now on you can consider that your payment order issued in accordance with the requirements of the Central Bank of the Russian Federation.
If VAT is not highlighted in the receipt for the incoming cash order, and you are going to accept VAT for deduction, it is worth asking your counterparty to replace it. Otherwise, you will have to defend your position in court.
To protect yourself from possible disputes with tax office, it is better to indicate in the contract either the VAT rate or a specific calculated VAT amount.
Norms current legislation(civil, tax) in principle do not oblige the parties to indicate the amount of VAT in the agreement, just as they do not regulate the procedure for indicating it - indicating a specific amount of VAT or only its rate.
At the same time, the absence of an indication of VAT in the contract amount may entail tax consequences. Therefore, from a practical point of view, it is more correct to indicate VAT in the contract. Moreover, it would be equally legitimate to indicate a specific amount of VAT (already calculated) or to indicate that the contract price includes VAT at a certain rate.
The rationale for this position is given below in the materials of the Glavbukh System vip version.
1. Article: What contract language allows you to save taxes in ordinary transactions?
It is safer to indicate in the contract whether the price of the goods includes VAT or whether tax is paid above this price
In many types of contracts, price is not an essential condition and can be determined based on the cost usually charged under comparable circumstances for similar goods, work or services (clause 3 of Article 424 of the Civil Code of the Russian Federation). But from the tax side, the condition on the size of the price can act as the main tax planning tool.
The tax base for VAT and income tax will depend on the contract price for both the seller and the buyer. Therefore, if the price is not specified in the contract, the parties will have to determine the base by applying special methods established in Article 105.7 of the Tax Code of the Russian Federation. As a result, it will be difficult to plan your tax obligations.
Also in practice there are situations when VAT is not included in the price of the contract. For example, the seller uses special mode or the parties simply forgot to indicate the amount of tax in the agreement. In this case, the parties risk getting involved in a dispute, both with each other and with tax authorities.
According to the Presidium of the Supreme Arbitration Court of the Russian Federation, if the parties do not separately indicate the amount of VAT in the contract, then the seller has the right, in addition to the price under the contract, to present VAT to the buyer for payment (Resolution No. 7090/10 of September 29, 2010).* And if the buyer refuses, he has the right to recover it during total term limitation period. The limitation period begins at the end of the period for fulfilling the obligation under the contract (decrees of the federal arbitration courts of the Volga region dated 03.08.11 No. A65-336/2011, dated 06.23.11 No. A65-19420/2010, East Siberian dated 14.09.11 No. A10-4322 /2010, dated 09.14.11 No. A10-4320/2010, Northwestern district dated 08.10.11 No. A05-5565/2010).
Therefore, if the moment of inclusion of VAT in the price is not agreed upon in advance, then if it is increased illegally, the buyer runs the risk of disputes with tax authorities regarding the legality of deducting VAT. For the supplier, this threatens to result in an overpayment of VAT and unjust enrichment in the amount of unreasonably charged VAT.*
G. Izotova
Chief Legal Advisor of the auditing company MKPTSN
2. Article: IN agreement not necessary highlight VAT
Is it necessary to agreement must be allocated VAT amount? The contractor brought us agreement , which simply states: “The cost of the work is 1,550,00 rubles.”
Magazine "Accounting in Construction" No. 2, II quarter 2007
I.S. EGOROVA, lawyer at AKG Interekspertiza
3.Article: Agreement with a counterparty: what accounting nuances should you pay attention to?
Contract price. The parties are free to indicate any cost of fulfillment of contractual obligations, except in cases where prices are applied that are established or regulated by those authorized to do so. government agencies or local governments. However, when setting the contract price, partners sometimes forget that it must include VAT* (clause 1 of Article 168 of the Tax Code of the Russian Federation). As a rule, lawyers make this mistake, citing the fact that civil law does not provide for the obligation to include tax in the price.
Let us remind you that the fact that VAT is not included in the contract price does not relieve the seller of the obligation to pay VAT to the budget if the transaction being carried out is subject to taxation (Article 146 of the Tax Code of the Russian Federation). However, such requirements do not apply to the buyer. Therefore, the seller will have to pay VAT to the budget from his own funds*.
In addition, the seller will not be able to include the amount of VAT paid in the tax expenses. After all, such a situation is not specified in Art. 170 of the Tax Code of the Russian Federation, which regulates the procedure for assigning tax amounts to costs of production and sale of goods, works and services.
O.E.Cherevadskaya
Audit Director of CJSC Financial control and Audit",
Winner of the All-Russian competition
"The best auditor of Russia"
"Russian Tax Courier", 2011, No. 19
Sincerely, Victoria Rybalkina,
leading expert Hotline"Systems Lawyer"
Answer approved by Natalia Kolosova,
leading expert of the Glavbukh System Hotline
V.V. Danilin
expert of the Russian Tax Courier magazine
The publication was prepared with the participation of specialists
Management indirect taxes and Legal Department of the Federal Tax Service of Russia
Disputes related to the payment of VAT and recalculation of transaction amounts are not uncommon in business practice. As a rule, such conflicts arise due to inconsistency in the actions of the parties. We talk about the legal and tax consequences of such situations in this article.
Transaction price as an element of the contract
According to Article 424 of the Civil Code of the Russian Federation, the execution of the contract is paid at a price determined by agreement of the parties. As a general rule, agreement on the transaction price is not a mandatory condition of the contract. However, there are exceptions to this rule. As an example, let's name purchase and sale agreements on terms of installment payment (clause 1 of Article 489 of the Civil Code of the Russian Federation), purchase and sale of real estate (clause 1 of Article 555 of the Civil Code of the Russian Federation) and lease (clause 1 of Article 654 of the Civil Code of the Russian Federation). In these transactions, price is a prerequisite. In the absence of an agreement on price, such contracts are considered unconcluded.As for transactions for which price is not a prerequisite, they are recognized as valid regardless of whether there is an agreement on the price between the parties or not. True, with some reservations. Thus, if the execution of the terms of the transaction between the parties has not yet begun, but a dispute about the price has already arisen, then this may become the basis for recognizing such an agreement as not concluded due to inconsistency of its essential terms.
If the execution of the transaction has begun, but its price has not been agreed upon, then the dispute may go to court. In this case, the court determines the price in accordance with paragraph 3 of Article 424 of the Civil Code of the Russian Federation, that is, based on the price of similar goods (work, services). It is important to remember that the transaction price determined by the court and counterparties in accordance with this article may differ from the price calculated on the basis of Article 40 of the Tax Code.
As stated in paragraph 2 of Article 40 of the Tax Code of the Russian Federation, the tax authority has the right, for tax purposes, to recalculate the cost of goods (work, services) if the transaction is completed:
Between interdependent persons;
As a result of commodity exchange transactions;
In the process of foreign trade activities;
With a deviation of more than 20% upward or downward from the level of prices used by the taxpayer for identical (homogeneous) goods (works, services) within a short period of time.
As we can see, the absence of an agreement between the parties on the price of the transaction is not the basis for determining it in accordance with the provisions of Article 40 of the Tax Code of the Russian Federation and the subsequent possible accrual of taxes, penalties and fines. Moreover, if the price of the transaction is determined by the court, since it will initially be considered as corresponding to the market price.
Another important point to determine the transaction price is associated with the rule that it cannot be unilaterally changed. True, unless otherwise provided by agreement or law. This norm is contained in paragraph 2 of Article 424 of the Civil Code of the Russian Federation and is confirmed by law enforcement practice (clause 13 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 22, 1992 No. 23).
VAT is not included in the contract price
The taxpayer, in addition to the price of the goods (work, services) sold, presents the corresponding amount of VAT for payment to the buyer. This is stated in paragraph 1 of Article 168 of the Tax Code of the Russian Federation. As follows from this norm, it is not the right, but the responsibility of the taxpayer to include VAT in the price of goods. The seller is also obliged to issue an invoice to the buyer, in which the amount of VAT is allocated as a separate line (clause 3 of Article 169 of the Tax Code of the Russian Federation), and charge the corresponding amount of tax for payment to the budget.Let us recall that the taxpayer chooses the moment of determining the tax base, guided by Article 167 of the Tax Code of the Russian Federation, and fixes it in accounting policy. This is either the day of shipment of goods (work, services) or the day of payment for them by buyers. (For new rules for calculating VAT in 2006, see the “Please Note” sidebar.)
The buyer has the right to deduct VAT paid on the cost of the purchased goods. In this case, the requirements of Articles 171 and 172 of the Tax Code of the Russian Federation must be met. That is, if the buyer has a properly executed invoice, the goods are paid for, capitalized and used for activities subject to VAT.
However, there are situations when VAT is not indicated in the total transaction price. Here are some of them. At the time of conclusion of the transaction, the seller (supplier):
I forgot to indicate the tax amount;
Applied a special taxation regime;
He was released from his duties as a VAT payer on the basis of Article 145 of the Tax Code of the Russian Federation.
What tax and civil consequences do such situations lead to?
Let's start with charging VAT to the budget salesman(as well as the supplier, performer under a service agreement, etc.), who is the payer of this tax, is obliged regardless of whether the amount of VAT is indicated in the agreement or not. Moreover, the tax is charged on the contract price, and is not included in it.
note: if the parties to the transaction have agreed on a new price for goods (works, services), then this will become the tax base for VAT. As a result, the person selling goods (work, services) will have to pay VAT to the budget at the price newly established by the parties, and the counterparty will be able to accept the corresponding amount of tax as a deduction.
If the parties do not agree on the price of the goods including VAT, they have the right to go to court. In this case, the inconsistency in the price of the goods at the conclusion of the contract is established in judicial procedure. If price is not a mandatory condition for the contract under which a dispute has arisen, then the court will independently establish the price of the transaction, which will be subject to VAT taxation. In a situation where the deal is in quality mandatory requirement contains a condition on the price of goods (works, services), the court may invalidate it and oblige the parties to give each other everything received under such a transaction.
When they forgot about VAT
So, at the time of concluding the transaction, the seller, the VAT payer, did not include the tax amount in the contract. In this situation, the seller, by issuing an invoice to the buyer and increasing the cost of the goods by the amount of VAT, risks that he will receive payment either without tax or with the amount of tax already included in the contract price. Or another scenario - the buyer of the goods refuses to pay for it until the price is finally agreed upon. Moreover, in practice it is possible various situations. For example:The buyer did not accept or pay for the goods;
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The buyer actually accepted the goods or consumed the service, but refused to pay for them.
Let's consider these cases in more detail.
The buyer refused to accept and pay for the goods r at a price increased by the amount of VAT, referring to paragraph 2 of Article 424 of the Civil Code of the Russian Federation on the inadmissibility of a unilateral change in the agreed price. In this situation, the contract is considered not concluded, the seller will be released from the obligation to deliver the goods, and the buyer will be released from paying for it. This position is set out in paragraph 54 of the Plenum resolution Supreme Court RF and the Plenum of the Supreme Arbitration Court of the Russian Federation dated 01.07.96 No. 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation.”
The buyer refused to pay for the goods, but actually accepted it based on shipping documents (for example, invoice), which indicate the amount of VAT. In this case, it is considered that the contract price has actually been changed with the consent of both parties at the time of acceptance and delivery of the goods. Let us explain this with an example.
EXAMPLE 1
Patron LLC (seller) and Komilfo LLC (buyer) entered into a purchase and sale agreement for clothing on October 1, 2005. Under the terms of the contract, the seller must transfer into the ownership of the buyer goods for a total amount of 300,000 rubles. no later than October 10, 2005. The buyer is obliged to pay for the goods received until October 20, 2005. In this case, the seller applies common system taxation and is a VAT payer (the accounting policy of the organization stipulates the moment of determining the tax base “by shipment”). And the buyer, carrying out retail trade, pays UTII and is not a VAT payer on the basis of paragraph 4 of Article 346.26 of the Tax Code of the Russian Federation.
On October 10, 2005, the seller shipped the goods to the buyer using a delivery note and issued an invoice. The cost of the goods indicated in these documents is 354,000 rubles. (including VAT RUB 54,000). The seller is obliged to accrue the amount of VAT for payment to the budget.
Until October 20, 2005, Komilfo LLC sold the goods at retail. The organization refused to transfer payment including VAT to Patron LLC. She argued this by saying that the transaction price agreed upon by the parties was 300,000 rubles, and VAT was not mentioned in the agreement.
In this situation, the buyer actually accepted the goods at a price of 354,000 rubles. and a reference to the amount agreed upon by the parties in the amount of 300,000 rubles. legally untenable. The contract price is actually changed with the consent of both parties at the time of acceptance and delivery of the goods. Therefore, the buyer is obliged to transfer payment for the goods to the seller in the amount of 354,000 rubles. The buyer does not have the right to deduct the amount of VAT (54,000 rubles) paid on goods sold as part of activities subject to UTII.
The service was provided (the work was completed), but the parties did not agree on the price. In such a situation, the civil consequences of the dispute will be determined by the court, which will set the market price. Let us illustrate what has been said.EXAMPLE 2
Entrepreneur A.N. Sidorov (custodian) concluded on September 1, 2005 with Praktik LLC (bailor) an agreement for the safekeeping of property at a price of 10,030 rubles. per month. Shelf life - 11 months. According to the terms of the agreement, the bailor is obliged to transfer monthly remuneration to the custodian for services. A.N. Sidorov established in the accounting policy the moment for determining the tax base for VAT “by shipment”.
On October 1, 2005, the custodian presented the bailor with an invoice for payment for September in the amount of 11,835 rubles. (including VAT RUB 1,805). The depositor refused to transfer this amount on the grounds that the contract price agreed upon by the parties was 10,030 rubles. per month and it should not increase by the amount of VAT.
In this situation, both sides are wrong. The fact that the contract does not indicate VAT in the transaction amount should be considered as a lack of agreement on the contract price. Since the parties actually took action to fulfill the terms of the transaction (for example, the property was transferred to the custodian under an invoice or an acceptance certificate), the contract is considered concluded.
Let’s assume that to resolve the conflict, the parties went to court, which found that the market price of storage services with the amount of VAT included in it is 9,000 rubles. Since this price is lower than the contract price, the court found that the bailor is obliged to pay the custodian the contract amount, that is, 10,030 rubles. (RUB 8,500 plus VAT RUB 1,530). In this situation, the tax base for calculating VAT will be the amount of 8,500 rubles.
note: in a situation where the market price exceeds the contract price, the court will adjust the amount of payments for storage to market prices, but not more than the agreed price plus VAT. In other words, the maximum price for the disputed transaction is 11,835 rubles. (RUB 10,030 plus VAT RUB 1,805). This conclusion can be made on the basis of paragraph 3 of Article 424 of the Civil Code of the Russian Federation and taking into account the price range not agreed upon by the parties.
From special mode to general system
Organizations and entrepreneurs that apply the simplified taxation system and pay the unified agricultural tax or UTII are not VAT payers. At the same time, the taxpayer may lose the right to apply the special regime or voluntarily abandon it and switch to the general taxation system. Cases when the right to application of the simplified tax system is lost, are listed in Articles 346.12 and 346.13 of the Tax Code of the Russian Federation. In particular, a taxpayer does not have the right to apply the “simplified tax” if the amount of his income exceeds the established annual limit, that is, 15 million rubles. in 2005 or 20 million rubles. in 2006 year.The Unified Agricultural Tax payer may lose the right to apply this special regime if, for example, income from the sale of agricultural products is less than 70% of the total revenue, as well as on other grounds provided for in Article 346.2 of the Tax Code of the Russian Federation.
The UTII payer has the right to independently cease activities subject to this tax and switch to general mode taxation. For example, an organization may retrain from retail for the sale of goods under supply contracts.
If by the time the contract is executed the seller switches to the general taxation system, he becomes a VAT payer. This means that when selling goods (performing work, providing services), such a seller is obliged to charge the amount of VAT to the budget, as well as indicate it in the invoice and shipping documents.
Let’s consider the situation when a “special regime” person returns to the use of the general taxation system, using the example of a “simplified person” whose income has exceeded the limit, established by clause 4 Article 346.13 of the Tax Code of the Russian Federation.
EXAMPLE 3
Patron LLC (supplier) entered into a supply agreement on June 20, 2005, according to which it undertook to transfer Comilpho LLC (buyer) goods in the amount of RUB 1,200,000. without VAT. According to the contract, the transfer of goods must be carried out in batches of 300,000 rubles. on the basis of 100% prepayment on the 1st day of each month.
During the third quarter of 2005, Patron LLC shipped three consignments of goods to the buyer for a total amount of 900,000 rubles. without VAT. The last batch worth 300,000 rubles. The supplier must deliver without VAT on October 1, 2005.
However, according to the accounting data of Patron LLC as of September 30, 2005, the organization exceeded the permissible income limit (the amount of revenue as of this date amounted to 16,000,000 rubles). According to paragraph 4 of Article 346.13 of the Tax Code of the Russian Federation, from July 1, 2005, the seller lost the right to use the simplified tax system and must switch to the general taxation system. Based on paragraph 4 of Article 346.13 of the Code, from July 1, 2005, Patron LLC is equated to a newly created organization. Paragraph 12 of Article 167 of the Code establishes that a newly created organization is obliged to approve the moment of determining the tax base for VAT during the first tax period. If such a decision is not made in a timely manner by the organization (in this case, Patron LLC), it is obliged to determine the tax base “by shipment”.
In this regard, the seller had an obligation to charge additional VAT in the amount of RUB 137,288. (RUB 900,000 x 18%) for goods previously sold to the buyer. On September 30, 2005, the seller offered the buyer to pay this amount. On the same day, that is, before the remaining part of the goods is shipped on time, provided for by the agreement, the seller issued an invoice to the buyer for 354,000 rubles. (including VAT RUB 54,000).
The buyer refused to pay the additional VAT amounts billed to him. In addition, he demanded that the seller supply him with the remaining shipment of goods for the agreed amount of 300,000 rubles.
In this situation, the supplier will have to pay VAT on full cost delivery of goods to the buyer. The tax amount is 216,000 rubles. (RUB 1,200,000 x 18%).
However, if the parties voluntarily resolve their differences by deciding on the new value of the goods (increased by the amount of VAT or including it), then the VAT tax base will be calculated based on this value.
If the right to release is lost
Salesman, exempt from VAT in accordance with Article 145 of the Tax Code of the Russian Federation at the time of execution of the contract, this right may subsequently be lost. Although in this situation the taxpayer does not change the taxation regime, its civil consequences are similar to those that arise when switching from a special regime to a general taxation system.Let us recall that in accordance with Article 145 of the Code, a taxpayer loses the right to exemption if he:
Exceeded the income limit for three consecutive calendar months(in 2005 - 1 million rubles, in 2006 - 2 million rubles);
He began trading excisable goods and did not organize separate accounting.
The seller becomes a VAT payer starting from the month in which he exceeded the income limit or sold excisable goods. The basis is paragraph 5 of Article 145 of the Code.
In addition, the seller himself must bear the obligation to pay tax if he misled a bona fide buyer, for example, by declaring the use of a preference, the use of which was unlawful, or wanted to receive competitive advantage by lowering the price (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 14, 2011 N 16970/10 and the Federal Antimonopoly Service of the East Siberian District dated August 20, 2013 N A58-6415/2012). It is not safe for the seller to apply the estimated VAT rate if he has not indicated the amount of this tax in the contract . The legislation provides for a closed list of cases when the calculated VAT rate 18/118 is applied (clauses 3 and 4 of Article 164 and clause 1 of Article 168 of the Tax Code of the Russian Federation).
Indication of VAT in the contract
Claiming a deduction on a “simplified” invoice is risky. The seller can recover from the buyer VAT that was not allocated by mistake. The buyer will not receive a deduction on an invoice with an incorrect VAT rate. It happens that companies, when concluding a contract, forget to indicate the amount of VAT, indicate the wrong rate, or mistakenly reflect in the contract the amount of this tax due to be paid by the buyer (see box below). For example, they unreasonably apply a reduced rate or, conversely, forget about the benefit.
Let's consider in which cases the absence of a clearly stated VAT amount in the contract or the indication of an incorrect rate can be risky from a tax point of view for both the seller and the buyer. Letter of the law.
Agreement without VAT: consequences
You can change the amount of VAT in an agreement only with the consent of the counterparty. Neither party can change the amount of the agreement, exclude VAT from it, or add the tax amount to the price without the consent of the other party. This is directly indicated by the norms of paragraphs 1 and 2 of Art. 450 Civil Code of the Russian Federation. Independent (without court intervention) change (in relation to price) and termination of the contract is possible only by agreement of the parties.
The VAT defaulter allocated the amount of this tax in the contract. Companies applying special tax regimes are exempt from paying VAT (clause 3 of Article 346.1, clause 2 of Article 346.11 and clause 4 of Article 346.26 of the Tax Code of the Russian Federation). If in an agreement with a supplier who is not a VAT payer, the amount of this tax is highlighted separately, there is a high probability that the accountant will also highlight the amount of this tax on a separate line when issuing an invoice.
VAT in the contract
Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 N 33 “On some issues that arise in arbitration courts when considering cases related to the collection of value added tax”: “17. Within the meaning of the provisions of paragraphs 1 and 4 of Article 168 of the Tax Code of the Russian Federation, the amount of tax imposed on the buyer upon the sale of goods (work, services), transfer of property rights must be taken into account when determining the final amount of the price specified in the contract and highlighted in settlement and primary accounting documents, accounts - invoices as a separate line. At the same time, the burden of ensuring compliance with these requirements lies with the seller as a taxpayer, who is obliged to take into account such a sales operation when forming the tax base and calculating the tax payable to the budget based on the results of the corresponding tax period.
Contract price: insidious VAT
In this case, who should transfer the tax to the budget? At what rate - 18 percent or 18/118 - should it be calculated? What legal and tax consequences arise for the seller and buyer of the goods? Most forms of primary documents contain special lines for highlighting VAT. However, in addition to such documents, there are others that provide for transactions, but do not have unified form. Sometimes the requirements for their execution are conditional, for example an agreement.
The allocation of VAT in it is not necessary when selling goods (work, services) to organizations applying a special regime, or if a company acquires (imports) goods (work, services), including fixed assets and intangible assets, used for: – operations for the production and sale of goods (work, services) that are not subject to taxation or exempt from taxation (subclause 1, clause 2, art.
How to calculate VAT if the tax amount is not specified in the agreement?
On the other hand, the only legally provided opportunity for the buyer to avoid paying VAT on top of the contract price is only after the expiration of the 3-year limitation period for the seller to file relevant claims. At the same time, the absence of a VAT clause in a contract is fraught with financial losses not only for buyers, but also for the sellers themselves, since, as a rule, sellers’ claims against buyers for the recovery of VAT amounts are not filed by sellers in order to obtain additional economic benefits, but are a consequence additional VAT charges to them tax authorities based on the results of tax audits. A striking example of this is the above-mentioned Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 2010 N 7090/10 in case N A05-18763/2009.
Is it necessary to indicate VAT in the contract?
Therefore, the seller has the right to issue an additional invoice to the buyer for the amount of VAT accrued above the contract price, and if the buyer refuses to pay this amount, to recover it in court. This is evidenced by many judicial acts: paragraph 15 newsletter Presidium of the Supreme Arbitration Court of the Russian Federation dated January 24, 2000 No. 51, resolution Arbitration Court Volga-Vyatka District dated November 14, 2016 No. F01-4724/2016 in case No. A79-6711/2015, FAS Moscow District dated July 23, 2012 No. A40-68414/11-60-424, FAS Volga-Vyatka District dated March 11, 2012 No. A43-7468/2011, FAS Far Eastern District dated December 12, 2011 No. F03-6075/2011. However, when claiming VAT from the buyer, one should take into account the three-year limitation period (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 29, 2010 No. 7090/10, FAS North-Western District dated August 10, 2011 No. A05-5565/2010).
Attention
Source: Center for Business Structuring and Tax Security taxCOACH When concluding transactions, many entrepreneurs do not always pay due attention to analysis tax consequences arising after signing the contract. Meanwhile, this can often result in large financial losses for a business. For example, failure to indicate in the contract how its price is formed (including and without VAT) can lead to a very unpleasant result for both the seller and the buyer.
What risks are fraught with the absence of mention of VAT in the agreement, as well as how to minimize them, will be discussed in this article.
Supporters of the first position said that VAT should be calculated and paid in excess of the contract price due to a direct indication of this in the Tax Code of the Russian Federation, as well as the need to comply with the principle of compliance of the terms of the contract with the requirements of the legislation in force at the time of its conclusion. This position is widely reflected in judicial arbitration practice (see, for example, Resolution of the FAS of the North-Western District dated September 27, 2010 in case No. A05-1517/2010, Resolution of the FAS North Caucasus District dated December 24, 2010 in case No. A32-2442/2010, Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 29, 2009 in case No. A17-3381/2008, Resolution of the Federal Antimonopoly Service of the Central District dated May 26, 2008 No. F10-1986/08 in case No. A54 -3312/2007, Resolution of the Federal Antimonopoly Service of the Moscow District dated 09/04/2008 in case No. A40-67810/07-112-392, etc.).
Is it necessary to indicate the VAT rate in the contract?
However, some courts have a different opinion on this matter. The VAT received from the buyer is subject to transfer to the budget, therefore, it is not an economic benefit for the seller (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 09/01/2009 N 17472/08, FAS Povolzhsky dated 03/14/2011 N A72 -4554/2010 and North Caucasian district dated 08/14/2009 N A32-18246/2008-46/245). It is risky for the buyer to claim a VAT deduction on an invoice received from a VAT defaulter. This is due to the fact that, in principle, a VAT defaulter is not obliged to issue invoices (Letters of the Ministry of Finance of Russia dated May 16, 2011 N 03-07-11/126, dated November 29, 2010 N 03-07-11/456 and dated April 1, 2008 N 03-07-11/126, Federal Tax Service of Russia dated 05/06/2008 N 03-1-03/1925 and Federal Tax Service of Russia for Moscow dated 04/05/2010 N 16-15/035198). Note that a similar problem is often encountered companies that purchase goods, work or services under the so-called preferential clause.
Is it necessary to indicate in the contract that VAT is not subject to tax?
Thus, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that the tax is collected in excess of the price of the work, if it was not included in the calculation of this price, and is payable by the buyer regardless of the presence of a corresponding condition in the contract. What to do if the counterparty refuses to accept and pay for the goods at the price, increased - noah for the amount of VAT, referring to the fact that the seller does not have the right to unilaterally change the agreed price? In this situation, the contract will be considered void, the supplier may not supply the goods, and the buyer may not pay for it. If the buyer refuses to pay for the goods, but accepted it for accounting on the basis of shipping documents (for example, an invoice), where the VAT amount is indicated, it is considered that the contract the price is changed with the consent of both parties at the time of acceptance and delivery of the goods. Therefore, the buyer is obliged to transfer payment for the goods to the seller, including tax. At the same time, he has the right to accept this amount of VAT as a deduction.