Send your good work in the knowledge base is simple. Use the form below

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

Tax authorities' arguments

According to paragraph 2 of Art. 171 of the Tax Code of the Russian Federation, VAT on goods (work, services) and property rights acquired for the implementation of transactions recognized as objects of taxation in accordance with Chapter. 21 Tax Code of the Russian Federation.

It is impossible to limit ourselves to this rule alone to resolve the issue of the legality of deducting VAT, since it does not say what serves as confirmation of the fact of acquisition of goods (work, services), as well as property rights for this purpose.

It is not news that the object of VAT taxation is the sale of goods (work, services), as well as the transfer of property rights (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Revenue from these operations in general case covers the costs incurred for their implementation, and also contains some profit. Consequently, evidence of the use of purchased goods (work, services) to carry out taxable transactions will be the inclusion of costs for their acquisition in the relevant costs associated with the production and (or) sale of goods (work, services), transfer of property rights, according to Chapter. 25 Tax Code of the Russian Federation.

If these expenses are not recognized for the purposes of calculating income tax, therefore, the fact of acquisition of goods (work, services), property rights for the implementation of VAT-taxable transactions is not confirmed. More precisely, the taxpayer’s obligation is violated, for the future fulfillment of which the legislator allowed VAT to be deducted. And if so, the VAT deduction made when the purchased goods (work, services) were accepted for accounting becomes illegal and must be canceled (restored).

Regarding this logic (which can also be seen in some court decisions), two observations can be made.

In ch. 21 of the Tax Code of the Russian Federation there are several indirect arguments in favor of this logic.

Firstly, the object of taxation is the transfer in the territory Russian Federation goods (performance of work, provision of services) for own needs, the costs of which are not accepted for deduction(including through depreciation deductions) when calculating corporate income tax (clause 2, clause 1, article 146). The logic of this rule is based on the fact that expenses accepted for tax purposes and so are taxed as part of revenue.

Secondly, tax amounts calculated by taxpayers in accordance with paragraph 1 of Art. 166 of the Tax Code of the Russian Federation when performing construction and installation work for one’s own consumption related to property intended for carrying out operations taxed in accordance with this chapter, the value of which to be included in expenses(including through depreciation deductions) when calculating corporate income tax (clause 6 of Article 171 of the Tax Code of the Russian Federation).

So, in in this case The mere purpose of the property for carrying out taxable transactions is not enough.

Thirdly, the main argument: if, in accordance with Ch. 25 of the Tax Code of the Russian Federation, expenses are accepted for tax purposes according to the standards; tax amounts on such expenses are subject to deduction in the amount corresponding to the specified standards(clause 7 of article 171 of the Tax Code of the Russian Federation), i.e. If normalized expenses are not accepted for the purposes of calculating income tax, VAT on them is not accepted for deduction.

In the author's opinion, there is a flaw in the presented reasoning.

In general, VAT is charged on revenue generated according to the rules accounting(Kit 90 “Revenue”). Therefore, confirmation that the acquired property was used for taxable transactions should be considered the recognition of acquisition costs as expenses for the production and sale of goods (works, services) and the transfer of property rights not in tax, but in accounting(where these are called expenses for common types activities).

The tax authorities and the Ministry of Finance of Russia proceed from the same logic when they require the restoration of VAT when writing off unfinished construction projects and under-depreciated fixed assets, on stolen or otherwise lost goods and in other similar situations not specified in paragraph 3 of Art. 170 Tax Code of the Russian Federation.

Thus, the same methodological model for applying the norms of the Tax Code of the Russian Federation is used: a direct and immediate norm alone is not enough; one must proceed from its contextual interpretation and the essence of tax legal relations for VAT.

The logic of arbitration courts

Let us note that there are a significant number of rulings of federal arbitration courts that support the logic of the tax authorities:

in the form of refusal to the taxpayer to deduct VAT on expenses that the court, following tax office considered to be unlawfully recognized for tax purposes;
in the form of allowing the taxpayer to deduct VAT due to the court’s disagreement with the tax inspectorate’s exclusion of the relevant expenses from those recognized for income tax purposes.

The following was unexpected (at least for the author). The professional literature often states that, according to the findings of such and such a federal arbitration court, recognition of expenses for tax purposes is not a condition for deducting VAT on these expenses. And such wording in one form or another is actually found in court decisions. But in this case, as a rule, it turns out that the court had already considered on the merits and rejected claims regarding the illegality of the taxpayer recognizing these expenses for tax purposes.

Let us give an analysis of arbitration practice.

Resolution of the Federal Antimonopoly Service of the East Siberian District dated May 23, 2007 N A33-14901/06-F02-2908/07.

“The fact of the use of purchased works (services) in production activities, that is, the production orientation of costs, is confirmed by the case materials... Moreover, when deciding the legality of the claimed deduction for value added tax on the basis of Chapter 21 of the Tax Code of the Russian Federation, there is no validity ( economic feasibility), nor cost-effectiveness legal significance Dont Have".

Resolution of the Federal Antimonopoly Service of the West Siberian District dated December 8, 2008 N F04-6756/2008(15392-A45-37).

“As the courts of both instances correctly pointed out, Chapter 21 of the Tax Code of the Russian Federation, which regulates the procedure for tax deductions for VAT, does not make the possibility of applying a deduction dependent on the attribution of the costs of purchasing a particular production service as expenses for income tax purposes... It should be noted that, as previously stated, the tax authority unlawfully excluded income tax costs for the episode of payment of a premium (margin) for goods and for the episode of payment of additional remuneration based on the results of 2005 for services purchased and provided by CJSC "ENERGOPROM MANAGEMENT", which also indicates the illegality of denying the right to deduct VAT on the relevant costs.”

Resolution of the Federal Antimonopoly Service of the Moscow District dated February 26, 2010 N KA-A40/978-10.

“The courts rightly proceeded from the fact that the taxpayer’s right to a tax deduction of the amounts of tax charged to him upon the acquisition of goods (work, services) is not made dependent on the inclusion of the corresponding amounts of expenses incurred during the acquisition of goods (work, services) in tax expenses on the profits of organizations (taking into account the direct type of taxation of income tax)... The courts found that the applicant reasonably attributed the costs to consulting services on count 08" Capital investments", since these costs form initial cost fixed asset (mine), which, after its creation, will be reflected in account 01 “Fixed Assets” and written off as expenses through depreciation charges on the basis of Part 3 of Article 253 of the Tax Code of the Russian Federation.”

Resolution of the Federal Antimonopoly Service of the Volga District dated April 23, 2009 in case No. A55-9765/2008.

“With regard to the tax authorities’ statement that the costs of purchasing goods (works, services) from Teploservice-Yug LLC are not of a production nature, then... the tax authorities have not provided information that the specified facility, after completion of construction, is not will be used for production activities, and in addition, the norms of Chapter 21 of the Tax Code of the Russian Federation do not make the taxpayer’s right to apply a tax deduction dependent on the production or non-production nature of the expenses incurred. The courts have rightly indicated that the right to apply a VAT deduction does not depend on the reflection of expenses in purposes of calculating income tax... The tax authority has not refuted the conclusion of the courts that legal support was economically justified and related to the main economic activity company subject to VAT."

Resolution of the Federal Antimonopoly Service of the Ural District dated September 24, 2008 N F09-6810/08-S3.

"Expenses for agent's remuneration are economically justified for the taxpayer... The courts correctly indicated that economic expediency conclusion of the contract and the economic justification of the costs are not in accordance with Ch. 21 of the Code as a condition for the application of tax deductions for VAT."

Thus, implicitly, but agreement is expressed with the initial basic premise of the tax authorities, and the specified catchy formulation opposes it only nominally.

It turns out (by at least, at first glance), that there are very few cases when the courts express disagreement with the methodological approach and logic of the tax authorities, and not with a specific conclusion<1>(why only “at first glance” will become clear below).

<1>Resolutions of the Federal Antimonopoly Service of the Volga District dated July 1, 2008 in case No. A57-10917/07, Moscow District dated February 14, 2008 No. KA-A40/14442-07-P in case No. A40-70926/06-143-273, Northwestern District dated October 24, 2008 in case No. A56-46360/2007.

In this regard, the “caution” of the Presidium of the Supreme Arbitration Court of the Russian Federation is indicative. Thus, when transferring the case to the Presidium, the panel of judges, disagreeing with the cassation instance’s refusal to deduct VAT due to the fact that the taxpayer did not provide evidence of his expenses under lease agreements, indicated: The Tax Code of the Russian Federation does not make the taxpayer’s right to receive a tax deduction dependent on the validity of attributing expenses associated with the implementation of its activities to expenses in the sense of Ch. 25 of the Code (Definition of the Supreme Arbitration Court of the Russian Federation dated July 26, 2007 N 1238/07). However, the Presidium of the Supreme Arbitration Court of the Russian Federation, not agreeing with the logic of the cassation instance for almost the same reasons, nevertheless limited itself to substantive objections and did not reproduce the general wording of its colleagues (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated October 23, 2007 N 1238/07): “Declared on the domestic market tax deductions amounted to the tax amounts presented to the company and paid by it upon acquisition material resources, as well as for repairs and other work performed for him (services provided).

Since transactions for which the company has declared tax deductions are subject to value added tax at a rate of 20 percent and relate to the domestic market, making these changes to tax returns for value added tax at a rate of 0 percent for December 2002 and for value added tax for December 2002 (transferring the amounts of deductions from the export declaration to the declaration for the domestic market) is legal."

Methodologically, the position opposing the logic of the tax authorities comes from the need to be guided only by direct and immediate norms of the Tax Code of the Russian Federation, without resorting to their contextual, indirect interpretation.

Let us remind you that this is exactly what arbitration courts do (almost without any exceptions) in disputes about the restoration of VAT, indicating that this should be done only in cases expressly provided for in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation (Decision of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 N 10652/06 and subsequent decisions of the federal arbitration courts of the districts).

Criterias of choice

So which of the two methodological models is more consistent with tax legislation?

In our opinion, of course, the second one due to its greater compliance with strict requirements for certainty and unambiguity of norms tax legislation .

As I have repeatedly pointed out Constitutional Court RF, within the meaning of Art. 57 of the Constitution of the Russian Federation, in systematic connection with its other articles, laws on taxes and fees must contain clear and understandable norms. Specifying the specified principle of certainty of tax norms, the Tax Code of the Russian Federation enshrines in paragraph 6 of Art. 3: acts of legislation on taxes and fees must be formulated in such a way that everyone knows exactly what taxes (fees), when and in what order he must pay (see, for example, paragraph 2 of the Resolution of the Constitutional Court of the Russian Federation of July 14, 2003 N 12-P).

At the same time, it is legally established unambiguous rules of conduct for participants in tax legal relations in situations where the principle of certainty of tax norms is not respected: all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer (payer of fees) (clause 7 of article 3 of the Tax Code of the Russian Federation) .

It is on this understanding of the nature of the norms of the Tax Code of the Russian Federation and the procedure for their application that the courts’ conclusions are based on the inadmissibility of using rules not directly formulated in Chapter 1 when deducting VAT. 21 of the Tax Code of the Russian Federation (although they, as mentioned above, follow from the general logic of the legislation).

Once again about the position of arbitration courts

Now let us explain why we said above that only at first glance court orders, which express uncompromising disagreement with the logic of the tax authorities, are very few.

As you know, external improvement objects are not subject to depreciation for tax purposes (clause 4, clause 2, article 256 of the Tax Code of the Russian Federation). In this regard, guided by their logic described above, tax authorities refuse taxpayers to deduct VAT on such objects.

However, the courts, as a rule, do not agree with them, noting, in particular, that external landscaping is usually carried out in fulfillment of the requirements of legislative or regulatory legal acts and, being directly related to office and industrial buildings and territory, is thereby used for production purposes, i.e. .e. for carrying out transactions subject to VAT (Resolutions of the Federal Antimonopoly Service of the Moscow District dated January 26, 2009 N KA-A40/13294-08, West Siberian District dated September 17, 2008 N F04-5628/2008(11555-A46-15)).

Thus, the participation of an object of fixed assets in production activities as a litmus test for their use for carrying out operations subject to VAT is not associated with taking into account the costs of creation of this object for tax purposes. This means that the logic of the tax authorities is not accepted, and “use” itself is understood in a broader sense.

The same approach is applied by the courts in relation to VAT on non-operating expenses(Article 265 of the Tax Code of the Russian Federation), which in the narrow sense of the word, due to their nature, are also not used for the production and (or) sale of goods (work, services), transfer of property rights, i.e. to carry out taxable transactions.

On this basis, again based on the logic described above, the regulatory authorities believe: VAT cannot be deducted on expenses, for example, on the liquidation of unfinished construction projects, conservation and maintenance of mothballed fixed assets, carrying out general meeting shareholders (see Letters of the Ministry of Finance of Russia dated March 24, 2008 N 03-07-11/106, dated January 29, 2009 N 03-07-07/03 and given below judicial acts).

However, the courts indicate: expenses for services for holding a general meeting of shareholders, conservation and maintenance of mothballed fixed assets are directly related to business, production activities taxpayer and, accordingly, are used to carry out transactions recognized as subject to VAT (Resolutions of the Federal Antimonopoly Service of the East Siberian District of August 15, 2007 N A33-27276/05-F02-5437/07, of the Northwestern District of April 4, 2008 in case N A56 -51219/2006, Moscow District dated September 1, 2009 N KA-A40/7940-09 in case N A40-69700/08-76-301).

In addition, some court decisions apply this logic to other types of expenses.

As an example, let us cite Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 28, 2009 N 17070/08.

The company accepted for deduction the VAT presented during the drilling, testing and subsequent abandonment of a well that was not put into operation, was not taken into account as a fixed asset and for which depreciation was not charged.

Based on these circumstances, the tax authority and the courts came to the conclusion: the well was not used to carry out taxable operations, therefore, the deduction of VAT is illegal.

Canceling judicial acts, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated: drilling an exploration well, geological research and testing, as well as its subsequent liquidation, were necessary conditions for the development of the named field.

Without carrying out these works, the company would not be able to produce and sell oil.

Thus, work on the construction and abandonment of unproductive wells is a necessary component of development natural resources.

Therefore, the performance of these works relates to operations recognized in accordance with Chapter. 21 of the Tax Code of the Russian Federation is subject to value added tax.

Consequently, the company has met all the conditions for claiming for tax deduction the amounts of VAT paid as part of expenses for the development of natural resources during the construction of a well that is not used in the process of oil production.

The courts had no legal grounds for refusing the society to satisfy the stated demand.

At integrated approach to the problem under consideration and the analysis of arbitration practice related to it, we can conclude: the number of court decisions, in which the deduction of VAT on expenses that are not accepted for tax purposes as expenses for the production and (or) sale of goods (work, services), transfer of property rights is considered legal.

The assessment of the use (non-use) of property (property) acquired for the implementation of taxable transactions is made depending on the economic and (or) technological necessity of these costs or whether they are determined by legal requirements.

Thus, the taxpayer has additional arguments and, possibly, increases the chances of winning a dispute with the tax authorities.

A.M. Rabinovich

Chief Methodologist

CJSC "Energy Consulting/Audit"

Expenses not taken into account for tax purposes are charged to account 91.2, but at the same time VAT (18%) is allocated in the invoice. Can VAT be entered into the purchase book and deducted? Or should I also include it in account 91.2 and not take it as a deduction?

If expenses are aimed at performing operations subject to VAT, then, regardless of whether they are taken into account when calculating income tax, input VAT on them can be deducted.

The rationale for this position is given below in the materials of the Glavbukh System

1. Situation: Is it possible to deduct VAT on expenses that are not taken into account when calculating income tax?

Yes, you can, but provided that the costs are related to operations subject to VAT. However, with this approach, disputes with the tax inspectorate are not excluded*.

In private explanations, representatives of regulatory agencies take the following position. For expenses that are not taken into account when calculating income tax, input VAT cannot be deducted. This is due to the fact that the use of the deduction is provided only for expenses that are associated with the performance of operations subject to VAT, including sales. When calculating income tax, expenses not related to production and sales are not taken into account.* This follows from point 2 Article 171 and paragraph 1 Article 252 of the Tax Code of the Russian Federation.

Thus, the presence of expenses not taken into account when calculating income tax means that they are not related to the performance of operations subject to VAT.

There are examples of court decisions that contain similar conclusions (see, for example, definition of YOU RF from 5 June 2008 city no. 6440/08 , FAS resolutions Far Eastern District from 24 January 2008 city no. F03-A51/07-2/6147 , Volga-Vyatka district from 10 January 2008 city no. A43-2450/2007-31-45, Central District from 20 August 2007 city no. A68-AP-104/18-06 , from 19 July 2006 city no. А54-9067/2005-С18).

However, there is an opposite arbitration practice. Many judges believe that the application of a VAT deduction depends on tax accounting expenses only in two cases*:

in relation to input VAT on travel, entertainment and other regulated expenses (P. 7 tbsp. 171 NK RF);
in relation to VAT accrued by an organization when performing construction and installation work for its own consumption ( paragraph. 3 p. 6 tbsp. 171 NK RF).

In other cases, the Tax Code does not contain any restrictions on the use of VAT deductions for expenses that do not reduce taxable profit. The main condition for deducting input tax is the connection of expenses with the performance of operations subject to VAT.* This follows from paragraph 2 Article 171 of the Tax Code of the Russian Federation.

For example, an organization can give its employee a TV for his birthday. When calculating income tax, expenses for the purchase of a TV are not taken into account. However, such a transfer is recognized as a sale on which the organization must pay VAT. Consequently, the organization can deduct the input VAT presented by the supplier when purchasing a TV. At the same time, there is no need to wait until the gift is given to the employee and VAT is charged to the budget. The Tax Code does not establish a relationship between the period of presentation of VAT for deduction and the period of actual sales, including free of charge. Arbitration practice confirms the legitimacy of this approach (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated 12 March 2009 city no. KA-A40/1726-09).*

All this follows from the provisions paragraph 2 subparagraph 1 of paragraph 1 of Article 146, point 1 Article 172 and point 16 Article 270 of the Tax Code of the Russian Federation.

Thus, according to general rule if expenses are aimed at performing operations subject to VAT, then, regardless of whether they are taken into account when calculating income tax, input VAT on them can be deducted. The courts also adhere to this position*. For example, decisions of the Federal Antimonopoly Service of the Moscow District from 26 February 2010 city no. KA-A40/978-10 , from 14 July 2009 city no. KA-A40/5553-09 , from 7 April 2009 city no. KA-A40/2620-09, Volga region from 22 September 2008 city no. A65-5848/07 , from 6 May 2008 city no. A65-12919/07-SA2-22 , Ural district from 7 October 2008 city no. Ф09-7115/08-С3, West Siberian District from 23 August 2007 city no. F04-5630/2007(37318-A46-37) , from 8 December 2008 city no. F04-6756/2008(15392-A45-37) , Far Eastern District from 16 August 2007 city no. F03-A51/07-2/2293 , Central district from 16 December 2004 city no. A36-135/2-04 And Northwestern district from 24 October 2008 city no. A56-46360/2007 .

Olga Tsibizova,

To determine the amount of VAT to be deducted, an organization must maintain a purchase book*. In the purchase book, buyers register the electronic and (or) compiled on on paper invoices (including adjustment and corrected ones).

If an organization maintains separate VAT accounting, then register invoices in the purchase ledger only for the amount of VAT that is subject to deduction*. This procedure is provided paragraph 13 Section II of Annex 4 to Government resolution RF from 26 December 2011 city no. 1137 .

Olga Tsibizova,

Department head indirect taxes department

tax and customs tariff policy of the Ministry of Finance of Russia

Sincerely,

Svetlana Barkova, expert of the BSS "System Glavbukh".

Answer approved by Svetlana Chuprikova,

boss Hotline BSS "System Glavbukh".

Any accountant knows that submitted VAT can be deducted under certain conditions. However, there are cases when, due to legislation or the current situation, this is impossible.

When is it permissible to take into account paid VAT as part of expenses that reduce the income tax base?

What does the Tax Code say about this?

How do tax authorities interpret its norms, and is their point of view always supported? judicial practice?

All this will be discussed in this article.

Current legislation provides for very specific transactions when the VAT charged to the taxpayer can be included in the cost of goods, reducing the base for calculating income tax. This is stated in the article 170 Tax Code. According to paragraph 2 of this article, tax can be attributed to the costs of production and sale of goods (work, services) in the following cases:

if they are used to carry out VAT-free transactions - Article 149 of the Tax Code;
if products manufactured using them will be sold outside the territory of Russia - Article 148 of the Tax Code;
if the person purchasing them is not a VAT payer or is exempt from paying this tax;
if they are purchased for those transactions that are not subject to VAT (for example, gratuitous transfer structures government agencies and other operations listed in paragraph) - 2 Article 146 of the Tax Code of the Russian Federation.

This is an exhaustive list of transactions for which input VAT can be attributed to the cost of goods, work or services, thereby reducing the income tax base.

It is worth noting that not only tax amounts presented directly upon purchase can be attributed to expenses, but also those recovered in accordance with paragraph 3 of Article 170 of the Tax Code of the Russian Federation.

In other words, if goods begin to be used to carry out the operations listed above, then the VAT previously deducted on them should be restored and taken into account as part of other expenses in accordance with Article 264 of the Tax Code of the Russian Federation.

Does the taxpayer have the right to choose?

It is important to keep in mind that the provisions of the law on tax deductions and the order of their application (articles 171 And 172 Tax Code of the Russian Federation) are worn imperative character, that is, mandatory. This means that a buyer to whom a supplier has charged VAT does not have the right to choose whether to include the tax amount as an expense or to claim it as a deduction.

Thus, if the taxpayer had grounds for deducting VAT, but for some reason he did not use it, then he does not have the right to include the amount of tax in expenses.

Unrealized right to deduct VAT: special cases

A situation where a company has not exercised its right to deduct VAT can arise for various reasons. The most common of them are the following:

lack of invoices issued by the seller;
missing the deadline to claim a deduction.

The first situation often arises when making a purchase in a retail chain. Most often these are some “little things”, for example, stationery for office needs or refueling a car. In this case, it is unlikely that you will be able to obtain an invoice from the seller, and in the opinion of the tax service, it is unlawful to claim VAT deduction based on a cash receipt. The absence of an invoice will be detected immediately when .

It turns out that it is impossible to deduct the amount of VAT on purchased assets, but at the same time, as mentioned above, it cannot be attributed to expenses that reduce the income tax base. However, those companies and entrepreneurs who want to fight for the deduction of the tax amount in this situation in court have every reason to do so.

The Resolution of the Presidium of the Supreme Arbitration Court No. 17718/07 dated May 13, 2008 determined that under such circumstances it is unlawful to refuse a taxpayer a VAT deduction. This is true provided that there is cash receipt, confirming the purchase, and the fact that the taxpayer used the purchased goods outside the scope of taxable activities has not been proven.

Nevertheless official position of the Federal Tax Service has not changed: VAT can be deducted only based on invoice, and the issues of presenting other primary documents as justification for the deduction are resolved judicially.

Speaking about the second obvious reason why a taxpayer may lose the right to deduct VAT, let us turn to paragraph 1.1 of Article 172 of the Tax Code of the Russian Federation. Since its entry into force, namely since the beginning of 2015, the procedure has been legislated applications for VAT deduction within three years from the moment the goods are registered. However, this deadline may also be missed, for example, by mistake or due to lengthy preparation of documents. Be that as it may, it is unlawful to claim VAT deduction outside this period. That is, in this case, the tax will have to be paid, but it will not be possible to attribute its amount to income tax expenses.

As an illustration, let us cite the situation of a Russian exporting company that took too long to collect a package of documents to confirm the zero VAT rate. As a result, she declared “input” tax on transactions taxed at 0% beyond the three-year period, and on this basis was denied a deduction. The amount of tax that the company had to pay was included in income tax expense, but the Supreme arbitration court I did not agree with this position (determination of the Supreme Arbitration Court of the Russian Federation No. 305-KG15-1055 dated March 24, 2015).

An example of a situation where VAT can be attributed to expenses

Another special case is also related to the non-confirmation of the zero VAT rate, but this is not about the tax presented by the taxpayer, but about the cost of his services calculated “on top of” the cost of his services. The situation was discussed in the letter of the Ministry of Finance No. 03-03-06/1/42961 dated July 27, 2015. The department is of the opinion that if the legality of applying the zero VAT rate cannot be confirmed, then the amount of calculated tax at a rate of 18 or 10% on the basis of subparagraph 1 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation should be taken into account as expenses.

In making this conclusion, the Ministry of Finance refers to the resolution of the Supreme Arbitration Court of the Russian Federation dated April 9, 2013 No. 15047/12, issued in a dispute between a large Russian air carrier and the Federal Tax Service. The company failed to collect documents to confirm zero VAT, calculated it at a rate of 18%, paid and included this amount in expenses that reduce profit. Tax service saw this as a violation. However, the Supreme Arbitration Court did not agree with this position and explained that the dispute concerns VAT calculated “from above.” In this case, the rules of tax legislation regarding the accounting of these amounts as expenses should be applied. The court also indicated that this VAT should be expensed immediately after the expiration of the 180-day period provided for submitting supporting evidence zero rate documents.

VAT included in bad debts

Another case when VAT is included in expenses is if it is part of accounts receivable which is overdue and subject to write-off. This situation may arise as a result of an unpaid delivery or the transfer of an advance payment for which the goods were never shipped.

After three years, the debt becomes uncollectible and is written off as an expense.

In this case, the company has the right to write off the amount of receivables along with VAT. This procedure does not contradict the official point of view of the Ministry of Finance, as reflected in letter No. 3-07-05/13622 dated March 13, 2015.

It is worth paying attention to one nuance that arises when writing off bad receivables for prepayment. If the VAT presented upon its transfer was previously accepted for deduction, then when the receivables are written off, the tax must be restored. This is the position of the Ministry of Finance, however, many experts consider it controversial, since paragraph 3 of Article 170 of the Tax Code of the Russian Federation does not say anything about the restoration of VAT in this case.

The income tax base reflects not only written-off receivables, but also written-off accounts payable. It arises as a result of non-payment for shipped goods or failure on the part of the company to deliver on account of the advance received, when the three-year period limitation period for these transactions has expired. How to deal with VAT as part of such a “creditor” when writing it off? Let's look at this issue in more detail using specific situations.

If the company’s debt arose due to the fact that goods received were not paid for, then the amount of debt is charged to the income tax account in full, that is, together with VAT. At the same time, tax amounts accepted for deduction upon receipt of goods are not subject to restoration (letter of the Ministry of Finance dated June 21, 2013 No. 03-07-11/23503).

Another case is when accounts payable arose due to the fact that against the advance received, on which VAT was paid, no goods were shipped. After the expiration of the limitation period, the amount of debt is included in the income that forms the income tax base. What should I do with the VAT previously paid on this amount? Logically, it should be excluded from income. However, the Ministry of Finance is of the opinion that the Tax Code does not allow reflecting this VAT in expenses (letter of the Ministry of Finance dated December 7, 2012 No. 03-03-06/1/635).

But according to many experts, there is another way out of this situation. They propose to take into account as income tax income not the full amount of the prepayment received, but the amount minus the VAT paid on it. In doing so, they refer to paragraph 2 of Article 248 of the Tax Code of the Russian Federation, which prescribes that the amounts of taxes presented by the taxpayer to the buyer should be excluded from income. However, if the company decides to take this path, it is very likely that it will have to defend its case in court.

Accounting for “foreign VAT”

For companies operating with counterparties from neighboring countries, questions often arise about how to deal with VAT, which appears in the received from them primary documents. It is important to understand the following: despite the fact that this tax is called the same as Russian, it has nothing to do with our VAT. This is a tax of a foreign country; it is calculated and paid according to the laws of the country where the company’s partner is a resident.

Thus, the tax called VAT, which appears in the invoices of a foreign counterparty, is not deductible under any circumstances.

How should the “foreign VAT” that is presented to the buyer be reflected in accounting? The point is that it does not need to be taken into account separately. It forms the cost of purchased goods (works, services) and is included in income tax expenses.

In other words, for a Russian company it makes no difference which taxes are included in the cost of goods purchased from a foreign supplier, because the costs will take into account the full amount of the contract.

On the other hand, “foreign VAT” appears in a situation where, when paying for services rendered, a foreign partner, who is a tax agent, withholds this tax from the contract amount. For example, Russian company provided services to a foreign enterprise, the cost of which was 1200 conventional units (cu). However, the domestic company received into its bank account 1000 c.u. The partner withheld the remaining amount in accordance with the laws of his country as a tax agent.

How should this transaction be reported in income? The Ministry of Finance believes that in full, including withheld foreign tax. That is, in our example, the Russian company must record income from the operation in the amount of CU 1,200. But the amount of tax withheld is 200 USD. can be attributed to expenses taken into account for calculating income tax. (letter of the Ministry of Finance dated May 18, 2015 No. 03-07-08/28428).

True, in 21 The chapter of the Tax Code does not indicate on the basis of which document the withheld tax can be accepted as an expense. Therefore, in this matter one should be guided by the norms of the chapter 25 , and specifically articles 313 Code. It defines the documents on the basis of which income tax withheld by a tax agent can be offset against the tax payable by the taxpayer. Thus, if a foreign partner withheld “his VAT” from the company as tax agent, you should ask him for a document confirming this process. If the latter is compiled in a foreign language, it will need to be translated into Russian.

Where to include VAT when re-importing?

Goods that the exporter for some reason is forced to import back into the country are placed under the customs re-import procedure. On practice Customs, as a rule, VAT is charged on the cost of such goods. The legality of this can be debated, but taxpayers usually prefer to pay the tax in order to get their own goods back as soon as possible. And here the question arises: what to do next with the amount of this tax?

Let us immediately note that VAT paid during re-import cannot be deducted. Paragraph 2 of Article 171 of the Tax Code of the Russian Federation lists all cases when customs VAT can be deducted, and operations for the re-import of goods do not appear there. Based on Article 170 of the Tax Code of the Russian Federation, the amount of tax also cannot be included in the cost of imported goods. After all, most likely, they will be sold in the future, that is, used in activities subject to VAT.

According to experts, it is advisable to attribute VAT withheld when re-importing goods to other expenses that reduce taxable profit, as a tax paid in accordance with the law.

And although paragraph 19 of Article 270 directly prohibits the inclusion of VAT in expenses, it refers to the tax presented by the taxpayer. When re-importing, the owner of the goods does not present the withheld VAT to anyone, therefore, the specified legal norm is not applicable to this situation. This is confirmed by judicial practice. Thus, customs VAT withheld during re-import can be included in other expenses taken into account when calculating the income tax base.

Expenses not accepted: VAT accepted. To accrue or not to deduct - how does VAT taxation depend on the economic justification of costs? Tax authorities' arguments