For example, input VAT from property that was acquired specifically in order to contribute it to the authorized capital of another organization, take it into account in the cost of this asset.
What should you do if you purchased resources for VAT-taxable transactions, and later used them in non-taxable ones? In this case, the tax previously accepted for deduction is restore.
This procedure follows from the provisions of paragraph 3 of Article 170 of the Tax Code of the Russian Federation.
Situation: is it possible to deduct input VAT on goods the sale of which is not subject to VAT? The supplier refused the benefit.
Yes, you can. In this case, all necessary must be completed.
If the supplier refused the VAT benefit and still presented you with tax, take it as a deduction. This conclusion is confirmed by arbitration practice. For example, resolution of the Federal Antimonopoly Service of the North-Western District dated December 4, 2006 No. A42-8562/2005.
Advice: To avoid disputes with tax inspectors about the legality of the deduction, contact the supplier. Ask him to provide a copy of the statement in which he refused VAT benefits on certain transactions. The application must bear a mark from the tax office indicating receipt of this document (clause 5 of Article 149 of the Tax Code of the Russian Federation).
Attention: the supplier has the right to refuse only certain benefits. If he shows you VAT on other preferential transactions, then disputes with inspectors about the deduction of these amounts cannot be avoided.
Non-taxable and VAT-exempt transactions are listed in Article 149 of the Tax Code of the Russian Federation. In this case, you can only refuse those benefits that are given in the list established in paragraph 3 of this article. Such an indication is in paragraph 5 of Article 149 of the Tax Code of the Russian Federation.
Therefore, pay attention to the composition of the purchased resources. After all, if the supplier submits tax on transactions named in paragraphs 1 or 2 of Article 149 of the Tax Code of the Russian Federation, then such a deduction is illegal.
For the situation under consideration, no special procedure for applying the deduction is provided. Therefore, deduct input VAT only if all necessary .
An example of VAT calculations and reflection in accounting of transactions for the sale and purchase of goods, the sale of which is not subject to VAT. The supplier duly refused this benefit
LLC "Production Company "Master"" is engaged in the production of artistic ceramics - hand-painted porcelain products.
Such products are included in the list of folk arts and crafts products, approved by order of the Ministry of Industry and Trade of Russia dated April 15, 2009 No. 274. Samples of these products are registered in the prescribed manner. They have been assigned a registration number. Sales of folk arts and crafts, samples of which are registered, are not subject to VAT (subclause 6, clause 3, article 149 of the Tax Code of the Russian Federation).
It was decided that starting next year, most of Master’s products will be exported. The economic department of the organization made a calculation according to which next year it would be beneficial for the organization to refuse the benefit provided for in subparagraph 6 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation. By refusing the benefit, “Master” will be able to reimburse from the budget the input VAT paid to suppliers, since sales of products for export are subject to VAT at a rate of 0 percent.
December 28th current year The “master” submitted to the tax office an application to suspend for a year the exemption for transactions specified in subparagraph 6 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation, starting from January 1 of the following year. The refusal to use the benefit applies to all operations for the sale of artistic ceramics products both on the foreign and domestic markets (paragraph 2, paragraph 5, article 149 of the Tax Code of the Russian Federation).
On February 1, “Master” shipped 300 “Russia” porcelain tea sets to the Russian buyer - Hermes Trading Company LLC. The selling price of one set excluding VAT is 15,000 rubles. The total transaction amount is RUB 4,500,000. (300 pcs. × 15,000 rubles/pcs.).
Since the “Master” refused the benefit, he claims VAT. Tea sets are subject to VAT at a rate of 18 percent. Consequently, when selling one tea set, the buyer is presented with a tax amount of 2,700 rubles. (RUB 15,000 × 18%).
The cost of one service including VAT was:
RUB 15,000/piece + 15,000 rub./pcs. × 18% = RUB 17,700/piece.
The total cost of the lot including VAT is:
RUB 17,700/piece × 300 pcs. = 5,310,000 rub.
The total amount of tax presented was:
RUB 4,500,000 × 18% = 810,000 rub.
On February 2, Hermes capitalized the received products and transferred payment for them. On February 3, the money arrived in the Master’s bank account.
The Master's accountant made the following entries in the accounting.
Debit 62 Credit 90-1
- 5,310,000 rub. - revenue from the sale of a batch of finished products is reflected;
Debit 90-3 Credit 68 subaccount “VAT calculations”
- 810,000 rub. - VAT is charged on sales proceeds.
Debit 51 Credit 62
- 5,310,000 rub. - received money from the buyer in payment for the sold batch of finished products.
On February 1, Master's accountant issued an invoice to Hermes and registered it in the sales book.
The Hermes accountant made the following entries in the accounting.
Debit 41 Credit 60
- 4,500,000 rub. - purchased goods are capitalized;
Debit 19 Credit 60
- 810,000 rub. - input VAT on goods received is taken into account (based on the seller’s invoice);
Debit 68 subaccount “VAT calculations” Credit 19
- 810,000 rub. - accepted for deduction of input VAT on goods received (based on the “Master’s” invoice).
Debit 60 Credit 51
- 5,310,000 rub. - money is transferred to the seller in payment for purchased goods.
On February 1, the Hermes accountant recorded the invoice received from the Master in the purchase ledger.
Situation: is it possible to deduct input VAT on goods the sale of which is not subject to VAT? The supplier did not refuse to use the benefit, but issued an invoice to the buyer with allocated VAT
No you can not.
When performing transactions exempt from VAT under Article 149 of the Tax Code of the Russian Federation, invoices are not issued (subclause 1, clause 3, article 169 of the Tax Code of the Russian Federation). By issuing an invoice indicating VAT, the supplier violated current order. A document issued in violation existing rules, cannot be the basis for a deduction. Similar explanations are contained in letters of the Ministry of Finance of Russia dated October 10, 2008 No. 03-07-07/104, Federal Tax Service of Russia dated July 15, 2009 No. 3-1-10/501.
In this situation, the basis for deducting VAT, in addition to the invoice, will be the supplier’s official refusal of the benefit. However, firstly, such a refusal is possible only in relation to the transactions listed in paragraph 3 of Article 149 of the Tax Code of the Russian Federation. And secondly, the refusal of the benefit must be confirmed by a statement sent to the tax office and notifications sent to buyers. This follows from the provisions of paragraph 5 of Article 149 of the Tax Code of the Russian Federation. Only if the supplier has met all these requirements can the deduction be reasonably applied.
Advice: the right to a deduction in such a situation can be defended in court. Most arbitration courts recognize that the buyer can deduct the VAT allocated by the supplier in the invoice, even if the transaction is exempt from taxation.
The buyer's right to deduct the VAT charged to him is inextricably linked with the seller's obligation to accrue tax payable to the budget. The seller of goods, works or services not subject to VAT, who has allocated the tax in the invoice, must transfer this amount to the budget (clause 5 of Article 173 of the Tax Code of the Russian Federation). The buyer, who has paid input VAT to the seller, has the right to accept it for deduction. That is, when performing transactions exempt from taxation, the condition for receiving deductions on invoices with allocated VAT is the payment of this tax by the supplier (performer) without reduction by the amount of tax deductions.
The validity of this approach is confirmed Constitutional Court RF (resolution of June 3, 2014 No. 17-P, determination of November 7, 2008 No. 1049-O-O) and arbitration practice (see, for example, determinations of the Supreme Arbitration Court of the Russian Federation of February 28, 2008 No. 2694/08 , dated February 20, 2008 No. 1678/08, dated February 11, 2008 No. 1358/08, resolution of the Federal Antimonopoly Service of the North-Western District dated June 9, 2011 No. A45-17566/2010, Volga District dated March 20, 2013 No. A12-9812/2012, dated February 7, 2012, No. A65-6806/2011, Central District, dated September 26, 2012, No. A48-4663/2011, Moscow District, dated October 16, 2012, No. A40-11357/12- 140-54). Moreover, some courts recognize the buyer’s right to deduction even in situations where the transaction performed is not only exempt, but is not subject to VAT at all (see, for example, the resolution of the Arbitration Court of the North-Western District of October 6, 2015 No. A05-14979 /2014).
It should be noted that in private explanations representatives tax service adhere to the same position (see, for example, letters of the Federal Tax Service of Russia dated February 16, 2015 No. GD-4-3/2366 and dated December 18, 2014 No. GD-4-3/26274). Previously, similar explanations were given by specialists from the financial department (letter dated July 11, 2005 No. 03-04-11/149).
If during the quarter you have both taxable and VAT-exempt transactions, then organize separate accounting input VAT. Amounts attributable to transactions subject to VAT should be deducted. Include the remaining input VAT in the cost of purchases. This procedure follows from paragraph 4 of Article 170 of the Tax Code of the Russian Federation.
For the distribution of input VAT on goods, works and services, the nature of their further use is unknown, see How to deduct input VAT when separately accounting for taxable and non-taxable transactions .
Suppliers often work under contracts that last several years. First, the buyer pays an advance, the supplier delivers the goods on schedule, and after a while receives full payment. In this case, according to the law, the supplier must deal with VAT as follows:
- charge VAT on the advance amount;
- after delivery of the goods, charge VAT on the full amount of the contract along with the advance payment;
- return VAT on advance payment from the state.
Let's use an example. There will be a lot of numbers, but it won’t work out any other way.
In March 2017, Karl Marx LLC signed an agreement to supply Pure Water LLC with pumps.
The contract amount is 118,000 rubles: 100,000 rubles and VAT 18,000 rubles.
"Clean Water" paid an advance of 11,800 rubles.
Karl Marx must pay VAT on the advance: 11,800 * 18/118 = 1,800 rubles.
In February 2018, Clean Water paid for the pumps and paid the remaining 106,200 rubles.
Karl Marx pays VAT on total amount contract: 118,000*18/118 = 18,000 rubles.
From the budget, Karl Marx reimburses the 1,800 rubles it paid in advance.
It turns out that he paid VAT: 18,000 + 1800 = 19,800 rubles. And then he returned 2124 rubles.
As a result, the company receives 118,000 - 18,000 = 100,000 rubles. This amount was in the contract without VAT.
Everything is clear if the VAT rate has not changed. But from January 1, 2019 it will become 20%. The picture will be like this:
In March 2018, Karl Marx signed an agreement for 18,000 rubles: 100,000 rubles and VAT 18,000 rubles.
In April, Clean Water paid an advance of 11,800 rubles.
Karl Marx pays VAT of 1,800 rubles on the advance payment.
In February 2019, the VAT rate is already 20%. But the contract amount remained the same - 118,000 rubles. Clean Water pays the remaining 106,200 rubles.
Karl Marx pays VAT on the total amount of the contract already with the new VAT: 118,000 * 20/120 = 19,666 rubles.
He receives a refund from the state for the 1,800 rubles he paid in advance.
Karl Marx receives 118,000 − 19,666 rubles = 98,334 rubles from the transaction. This is less than he planned.
It turns out that if the rate changes, the company may lose money if it entered into an agreement with an advance payment. With the correct wording in the contract, this can be avoided.
Incorrect wording in the contract
Companies specify the cost including VAT in the contract in different ways. I know from at least eight wording options. The most dangerous one is “the cost is 118,000 rubles, including VAT.”
The wording means:
with VAT 18% → “100,000 rubles per product and 18,000 rubles VAT”;
with VAT 20% → “98,330 rubles + 19,670 rubles VAT.” True, some lawyers argue and say that it should be “100,000 rubles for the goods and 20,000 rubles for VAT.”
That is, if the rate increases, the company will receive less for the product.
But it is unlikely to solve the problem, and in court it will be invalid.
Safe wording in the contract
In an ideal world, when the VAT rate changes, the amount in the contract should be automatically recalculated, and buyers should agree to it and immediately sign the contract with the changes. In real life this almost never happens.
You can come to the buyer, explain the situation and say that the amount in the contract will change. It was 118,00 rubles, and now it will be 120,000 rubles. But it is not a fact that the buyer will agree with this. He can say: “The contract contains 118,000 rubles, that’s what I’ll pay.” Lawyers are still arguing to what extent such demands will be lawful.
My advice is to separate the amount for goods and VAT in the contract. A suitable formulation would be:“The cost is 100,000 rubles. This cost does not include VAT, which is additionally presented by the seller to the buyer in accordance with the requirements of the Tax Code of the Russian Federation at the rate on the date of issue of the invoice"
In this case, there is no indication at what rate the buyer must pay VAT. Changes - must pay according to the one that will be in effect at the time of payment under the contract.
From the buyer's side
Buyers on common system taxes will most likely not be affected if the amount of VAT in the contract increases. They can deduct this VAT and reduce their own.
"Clean Water" signed an agreement for the purchase of pumps. The amount under the contract is 100,000 rubles plus VAT. In 2018 it is 118,000 rubles.
He pays for the pumps in 2019, when the VAT rate is already 20%. He must pay 120,000 rubles: 100,000 rubles for pumps and 20,000 rubles in VAT.
For 20,000 rubles, Clean Water claims a VAT deduction and reduces the tax. The company does not lose anything.
The problem arises when the supplier sells goods to the client on a simplified basis or on UTII.
Arkady and Sons buys pumps. According to the agreement, this is 100,000 rubles for pumps and VAT.
At the old rate he would have to pay 118,000 rubles, and at the new rate - 120,000 rubles.
It works on a simplified basis. For him, 2000 rubles is simply an increase in the cost of the goods he is buying.
In the example, the amounts are small, but the contracts can be worth millions. Then additional expenses companies will also be significant.
Question: The supplier organization shipped the goods to the buyer in accordance with the supply agreement. The VAT amounts presented by the supplier upon its acquisition were accepted for deduction by the purchasing company. Should the indicated VAT amounts be restored if in the future the parties to this agreement decided to pay for the goods not in cash, but with the buyer’s property? (Expert consultation, 2007)
Question: The supplier organization shipped the goods to the buyer in accordance with the supply agreement. The VAT amounts presented by the supplier upon its acquisition were accepted for deduction by the purchasing company. Should the indicated VAT amounts be restored if in the future the parties to this agreement decided to pay for the goods not in cash, but with the buyer’s property?
Answer: In accordance with Art. 506 Civil Code Russian Federation, under a supply agreement, a supplier-seller engaged in business activities undertakes to transfer, within a specified period or periods, the goods produced or purchased by him to the buyer for use in business activities or for other purposes not related to personal, family, household and other similar use.
The buyer pays for the supplied goods in compliance with the procedure and form of payment provided for in the supply agreement. If the procedure and form of settlements are not determined by agreement of the parties, then settlements are carried out by payment orders (clause 1 of Article 516 of the Civil Code of the Russian Federation).
According to paragraphs. 1 clause 1 art. 146 of the Tax Code of the Russian Federation, the object of taxation for VAT is recognized as transactions for the sale of goods (work, services) in the territory of the Russian Federation, including the sale of pledged items and the transfer of goods (results of work performed, provision of services) under an agreement on the provision of compensation or novation, as well as the transfer property rights.
When selling goods (work, services) through commodity exchange (barter) transactions, the tax base for VAT is determined as the cost of the specified goods (work, services), calculated on the basis of prices determined in a manner similar to that provided for in Art. 40 of the Tax Code of the Russian Federation, taking into account excise taxes (for excisable goods) and without including VAT (clause 2 of Article 154 of the Tax Code of the Russian Federation).
Clause 1 of Art. 168 of the Tax Code of the Russian Federation establishes that when selling goods (work, services), transferring property rights, the taxpayer (tax agent specified in paragraphs 4 and 5 of Article 161 of the Tax Code of the Russian Federation) in addition to the price (tariff) of the goods (work, services) sold ), the transferred property rights are obliged to present the corresponding amount of VAT for payment to the buyer of these goods (works, services), property rights.
The amount of VAT presented by the taxpayer to the buyer of goods (works, services), property rights, is paid to the taxpayer on the basis of a payment order for the transfer Money when carrying out commodity exchange operations, offsets mutual demands, when used in calculations valuable papers(paragraph 2, clause 4, article 168 of the Tax Code of the Russian Federation).
By virtue of paragraph 2 of Art. 171 of the Tax Code of the Russian Federation, VAT amounts presented to the taxpayer when purchasing goods (work, services), as well as property rights on the territory of the Russian Federation, or paid by the taxpayer when importing goods into the customs territory of the Russian Federation in the customs regimes of release for domestic consumption, temporary import and processing outside the customs territory or when importing goods transported across the customs border of the Russian Federation without customs control and customs clearance, in relation to goods (work, services), as well as property rights acquired for carrying out operations recognized as objects of taxation in accordance with Chapter. 21 of the Tax Code of the Russian Federation, with the exception of goods provided for in paragraph 2 of Art. 170 of the Tax Code of the Russian Federation, as well as goods (works, services) purchased for resale.
Thus, the amounts of VAT charged to the buyer when purchasing goods are accepted for deduction, provided that they were acquired to carry out transactions subject to VAT. The specified deduction is provided on the basis of invoices issued by sellers and relevant primary documents confirming the acceptance of these goods for registration (clause 1 of Article 172 of the Tax Code of the Russian Federation).
If the supply agreement stipulates that payments for the delivered goods are made by payment orders, the supplier organization presents the corresponding amount of VAT for payment to the buyer of these goods by issuing an invoice. This invoice is the basis for accepting the specified amount of VAT for deduction from the buyer after he has accepted the goods purchased by him for accounting, regardless of the fact of their payment to the supplier (clause 1 of Article 168 and clause 1 of Article 172 of the Tax Code of the Russian Federation).
If the supply agreement stipulates that payments for the delivered goods are made by counter-delivery of property, then the buyer has grounds for accepting the VAT amounts indicated in the invoice for deduction only after they are transferred to the supplier by payment order, i.e. "real" money (clause 4 of article 168 of the Tax Code of the Russian Federation).
Consequently, the amounts of VAT presented by the supplier upon its acquisition and accepted for deduction by the purchasing company are subject to restoration if the parties to the supply agreement subsequently decided to pay for the goods with the buyer’s property. The purchasing organization is required to submit an updated declaration in connection with the reversal of VAT amounts previously accepted for deduction.
E.N.Kolomina
Consulting group "InterSoft"
12.07.2007
Purchases from those who use the “simplified tax” or are exempt from VAT often cost more than the contract price. After shipment, the seller may lose the right to a special regime or exemption, or discover that he used them illegally. Then he will be obliged to pay VAT on the goods supplied to you and, which is very likely, will try to present it to you for payment and even collect it through the court. Special condition in the contract will relieve you of such claims.
VAT that didn't exist
VAT is a tax that can be collected from a company not only by tax authorities, but also by its counterparties. The thing is that the law requires that it be presented to the buyer for payment in addition to the transaction price (clause 1 of Article 168 of the Tax Code). And if the seller did not do this right away, and later found out that he should have added tax to the price, he will try to collect additional VAT from the buyer.
This is possible if, at the time of shipment, the supplier incorrectly determined the amount of VAT charged to you as the buyer, mistakenly believed himself to be a non-payer of this tax, or actually had the right not to pay it, but soon lost this right.
You can check the calculation of the tax presented to you by the seller - a VAT payer. But the buyer is unable to find out whether your supplier actually has the right to the special regime he applies (or whether he has an exemption from VAT). Meanwhile, he may simply be mistaken about whether he has this right. Sooner or later tax office will check him and charge him additional VAT, including for your transaction with him. Here sellers usually immediately remember that VAT is an indirect tax, and try to collect its amount from the buyer.
However, this often happens without any mistake on the part of the seller. The situation when he legally uses the special regime, and over time discovers that he has been a payer of “general” taxes for quite some time, is directly laid down in the Tax Code.
Rights to pay single tax the seller will lose, for example, if he opens a branch, if his revenue or the cost of fixed assets and intangible assets will exceed the limits established for "simplified" if, as a result of the sale of the share authorized capital the participation of organizations in it will be more than 25 percent, etc. (clauses 3 and 4 of article 346.12 and clause 3 of article 346.14 of the Tax Code). Those who have lost the right to use the simplified system are required by law to switch to general taxes not at the moment of violation of the conditions for applying the special regime, but from the beginning of the quarter in which this occurred (clause 4.1 of Article 346.13 of the Tax Code). If a company, working under a simplified system, for example, opens a branch in March, it will be required to pay general taxes on all its shipments, starting in January. Those who have long ago paid such a company for January shipments will receive a requirement from it to pay an additional 18 percent to the contract price.
The same risk lies tax code, and providing exemption from VAT under Article 145. The right to exemption is considered lost from the beginning of the month in which the revenue exceeded the maximum volume, or in the event that there was a sale of any of the excisable goods (clause 5 of Article 145 of the Tax Code ).
The supplier may also be mistaken regarding his right to a 10% VAT rate. Of course, it is often within the power of the buyer to dispel this misconception by looking at the Tax Code. However, sometimes it is not so easy to determine whether a preferential rate applies or not to the goods being shipped (work or service being performed). In addition, tax authorities may have their own opinion on this issue.
In the situation considered, the seller will want to receive additional tax from the buyer, which, in general, is logical. Otherwise, VAT will turn for the supplier from indirect tax in reverse. But the buyer is not to blame for the fact that the counterparty made a mistake or lost the right to a special treatment. The offer to pay an additional 18 percent is an unpleasant surprise, despite the opportunity to claim this amount as a deduction. After all, when deciding on the purchase of goods, the buyer expected to pay the amount specified in the contract, and no more, and was also based on certain tax consequences for himself. However, if the buyer decides to argue, the court is unlikely to support him - arbitration practice is in favor of unlucky suppliers.
Pay what is presented
The essence of legal disputes regarding the collection of VAT by suppliers from buyers comes down to resolving two issues. Firstly, what is the VAT billed by the seller - part of the contract price or a tax? Secondly, what is the buyer’s obligation to pay the amount of VAT charged to him - civil or tax (public, as lawyers say)?
If we assume that this obligation is from the sphere of civil legal relations, and VAT is part of the contract price, we come to the conclusion: the buyer is not obliged to pay additional VAT to the seller, which was not initially specified in the contract. After all, anything else would mean a unilateral change in the price agreed upon by the parties, and this is unacceptable (clause 2 of Article 424, 450 of the Civil Code).
Adopting the second point of view, we find that relations between the parties regarding VAT are fully regulated by the Tax Code, and the terms of the contract that contradict it are invalid (Articles 422, 168 and 180 of the Civil Code). Therefore, the buyer is obliged to pay VAT, which the seller submitted, albeit late, but legally. The fact that one party misled the other when concluding the contract does not matter. After all, the wording of the contract regarding tax is not important - tax legislation priority over them. But VAT is not part of the contract price of goods and must be paid to the seller by virtue of the direct instructions of the law.
Opponents of this position argue that tax legal relations arise only between the taxpayer and the state, and they are impossible between two taxpayers. And VAT in the relationship between buyer and seller is not a tax (as defined by Article 8 of the Tax Code), since it can only be a tax for its payer - the seller. However, these arguments are usually not supported by the courts.
Arbitration practice recent years more often admits: when the Tax Code obliges the supplier to present VAT to the buyer, the latter must pay it, even if the tax was not initially indicated in the contract, including due to the use by the seller of a “simplified approach” (see, for example, the resolutions of the Federal Antimonopoly Service of the East Siberian District dated September 17, 2004 N A33-2354/04-S1-F02-3741/04-S2 and dated March 15, 2007 N A58-3666/06-F02-1228/07, Northwestern District dated September 12, 2007 A05-11366/2006-28 and dated November 30, 2009 N A05-3740/2009, Volga-Vyatka District dated August 14, 2008 N A28-2940/2008-121/4, North Caucasus District dated October 8, 2008 N F08-5595/2008, West Siberian District dated April 15, 2008 N F04-2091/2008(2579-A75-16)).
The courts recognize the right of the seller to recover “discovered” VAT from buyers even if the inspectorate additionally charges it during the inspection, for example, recalculates transaction prices according to market prices(decrees of the Federal Antimonopoly Service of the Moscow District of May 21, 2009 N KA-A40/4466-09-2, of the North-Western District of April 23, 2007 N A05-10962/2006-28).
The buyer will find some consolation in the fact that by paying the VAT to the supplier, the amount can be deducted. However, in this case, invoices will be issued later than five days after shipment, which is fraught with tax claims for deductions. True, the courts several times pointed to the legality of the deduction (resolutions of the Federal Antimonopoly Service of the North-Western District dated September 12, 2007 N A05-11366/2006-28 and dated April 23, 2007 N A05-10962/2006-28, FAS East Siberian District dated September 17, 2004 N A33-2354/04-S1-F02-3741/04-S2). However, if your company is not a VAT payer, then it does not need a deduction - unless you write off the tax presented as expenses.
Sometimes you can’t even count on a consolation deduction. It happens that suppliers come to their senses and present taxes to the buyer only after more than three years have passed after shipment. This usually happens when VAT is charged to the supplier by an inspection based on the results on-site inspection over the past three years. Then the seller spends a lot of time on unsuccessful legal proceedings with inspectors, and only then does he begin to collect VAT from the buyer. Meanwhile, the statute of limitations for returning overpaid taxes, and therefore for claiming newly discovered deductions, is three years (Clause 7, Article 78 of the Tax Code).
Price with switch
Once and for all, you can protect yourself from such claims on the part of the supplier by specially formulating the price condition in contracts with those who use special regimes and VAT exemption. Typically, contracts with such suppliers do not mention this tax at all or indicate: “Without VAT” or “VAT not subject to tax.” If it subsequently turns out that by law the seller was obliged to present VAT, then the courts consider such provisions of the contract to be void as contrary to the law (Articles 422, 168 and 180 of the Civil Code). It costs nothing for the supplier to prove that the buyer is obliged to pay additional VAT to the price specified in the contract.
Therefore, the price condition should be formulated so that if something happens, it turns out that it already includes possible VAT. This can be done by indicating in the contract that if the seller loses the right to “simplified” or exemption from VAT, the price is automatically reduced to 84.75 percent of the original price. The remaining 15.25 percent turns into VAT. A similar condition in the contract, without changing the amount due from the buyer, will automatically add VAT to it if the seller suddenly finds out that at the time of delivery he was a payer of this tax. As a result, it turns out that the buyer has already paid the required tax and does not owe anything more to the seller.
Clause 2 of Article 424 of the Civil Code allows you to do this. It allows for changes to be made to the contract price after its conclusion in cases provided for, among other things, by the contract itself.
Using the same principle, you can draw up a price condition in cases where you are not sure that the seller is legally charging VAT at a preferential 10 percent rate, or there are suspicions that he is unlawfully using the VAT benefit. If as a result tax audit If it turns out that he was wrong, it will turn out that you have already paid him VAT at the full rate.
For the supplier, including such a condition in the contract will be quite fair, because the change in his status from a VAT defaulter to the opposite is due to his fault: it is he who may exceed the maximum revenue allowed for the “simplified tax”, open a branch, or be mistaken about his right not to pay VAT. Moreover, such a condition is even beneficial to the seller: being forced to “retroactively” charge VAT, he will do so on a lower cost of goods, which means the amount of tax payable will be less.
2. Contract price.
2.1. The price per unit of goods is 100 rubles. VAT is not assessed in connection with the use by the seller of a simplified taxation system in accordance with Chapter 26.2 of the Tax Code (use of VAT exemption by the seller in accordance with Article 145 of the Tax Code).
2.2. The parties agreed that if the seller, who was not recognized as a VAT payer (exempt from paying VAT in accordance with Article 145 of the Tax Code) at the time of concluding this agreement, subsequently has grounds for presenting VAT to the buyer in accordance with paragraph 1 of Article 168 of the Tax Code or for recovery of VAT from the buyer, then:
1) the price of goods sold (work, services) and transferred property rights specified in this agreement is reduced to 84.75 rubles. per unit of goods excluding VAT. VAT at a rate of 18 percent per unit of goods is 15.25 rubles;
2) the seller does not have the right to demand that the buyer pay an amount of VAT in excess of that specified in the contract, and the buyer is not obliged to pay an amount of VAT in excess of that specified in the contract;
3) the seller is obliged, within 5 days from the moment of occurrence of the circumstances specified in the first paragraph of clause 2.2 of this agreement, to draw up in accordance with the requirements of Article 169 of the Tax Code and transfer to the buyer an invoice for all goods delivered under this agreement. For violation of this obligation, the seller is obliged to pay the buyer a fine in the amount of 15.25 rubles. from each unit of goods delivered.
Unexpected deduction
By thus converting part of the contract price paid to the seller into VAT, you can easily claim a deduction. To do this, the seller needs to notify you of changes in his tax status, and also draw up and send you an invoice with VAT allocated. It is unlikely that he will do this of his own free will, so such a duty must be included in the contract. It’s also a good idea to provide a penalty for non-compliance. this condition, because the authors of the Tax Code forgot to do this.
However, first it is worth assessing tax consequences unexpected deduction. It is possible that it will be more profitable to remain “in the dark” about the seller’s obligation to pay VAT on goods supplied to you, and to ignore the deduction. After all, receiving a VAT invoice will require adjustments to accounting and recalculation of income tax, since input tax was previously written off as expenses as part of the cost of purchased goods. As a result, there may be arrears in income tax, for which you will have to pay a penalty.
Even if the deduction “covers” the increase in income tax and penalties, as well as the costs of correcting accounting, it is not a fact that the tax authorities will so easily allow them to be used. They are convinced that a seller who has “failed” from the “simplified” system should not issue invoices for his sales from the beginning of the current quarter (letter of the Federal Tax Service dated February 8, 2007 No. MM-6-03/95@).
Tax officials refer to the fact that the invoice must be issued within five days from the date of shipment (clause 3 of Article 168 of the Tax Code), and later, they say, this cannot be done. However, the Tax Code does not contain such a prohibition. In addition, this year a clarification appeared in paragraph 2 of Article 169 of the Tax Code: errors in invoices that do not prevent tax officials from identifying the seller, buyer, rate and amount of tax cannot be grounds for refusing a deduction. Obviously, violating the five-day deadline does not interfere with any of the above. The same paragraph states that refusal to deduct will result only in those defects in the invoice that are associated with failure to comply with the requirements of paragraphs 5 and 6 of this article. And the “five days” rule was established by a completely different article - 168th. As you can see, the Tax Code does not prevent unexpected deductions, but you may have to get it through the court. Taxpayers have been able to do this more than once (see, for example, resolutions of the FAS of the East Siberian District dated February 28, 2006 N A19-12094/05-33-Ф02-618/06-С1, of the North-Western District dated January 13 2006 N A56-31806/04).
Note. Tax from the past
What to do if an agreement without a price reduction clause has already been concluded and executed, and the supplier suddenly demands you to pay an additional 18 percent in the form of VAT? Try to challenge his claims in court. And although, as already mentioned, the courts often take the side of sellers, sometimes buyers still manage to win the dispute.
Thus, the Federal Arbitration Court of the Volga-Vyatka District once decided: a supplier who unlawfully used the “simplified tax” and therefore did not include VAT in the cost of goods supplied must pay it at the expense of own funds and has no right to recover from the buyer. The judges indicated that the seller can collect VAT only if initially, at the time of the transaction, he was a VAT payer and intended to collect tax from the buyer (resolution of June 29, 2009 N A17-3381/2008). This case had a peculiarity: when concluding the transaction, the supplier justified the high price of the contract precisely by the fact that he was using a “simplified tax” and could not deduct input VAT.
The Federal Arbitration Court of the Far Eastern District also somehow refused to collect VAT from the buyer to the seller who, when executing the transaction, did not present the tax, because he mistakenly believed that he was exempt from paying it (resolution of March 21, 2007 N F03-A04/06-2 /5386). The seller himself is partly to blame for this outcome of this dispute... He demanded that the buyer not pay VAT, but compensate the amount of loss caused to him by non-payment of the tax imposed. However, damages can only be recovered if the debtor behaves unlawfully and there is a cause-and-effect relationship between the violation and the losses.
In addition, recently buyers have had an additional argument in the form of a resolution of the Supreme Arbitration Court dated September 22, 2009 N 5451/09. It concerns a different dispute (about how to calculate the penalty - from the price of the goods, including VAT, or from the price “cleared” of it), but it contains one important general conclusion. According to the senior judges, VAT is part of the contract price. In other words, the supplier who discovered that he had to pay VAT on a transaction with you has already received it - as part of the negotiated price. He has no right to present you with any amounts in excess of the price originally established in the contract for payment. Therefore, insist that the transaction price already included VAT, since it later turned out that the seller was its payer.
Another way to protect the interests of the buyer is opened by Article 451 of the Civil Code. She calls the basis for revising the contract a significant change in the circumstances from which the parties proceeded when concluding it. This article applies when circumstances have changed so much that if the parties could have foreseen this, they would have entered into an agreement on different terms or would have abandoned the transaction altogether. Agree, increase monetary obligation to the seller by 18 percent compared to the contractual terms - this is a “material change in circumstances.” If the buyer had known that such a “surprise” awaited him, he would have refused the contract altogether. Therefore, he has the right to insist on revising the contract and reducing the price to 84.75 percent of the original one. A supplier who does not want to reduce the price can be forced by the court to obey the law (clause 2 of Article 451 of the Civil Code).
E. Pustynina
Magazine "Calculation"