1. The taxpayer has the right to reduce total amount tax calculated in accordance with Article 166 of this Code, for those established by this article tax deductions.
2. Subject to deductions tax amounts presented to the taxpayer when purchasing goods (work, services), as well as property rights in the territory Russian Federation or paid by the taxpayer when importing goods into the territory of the Russian Federation and other territories under its jurisdiction, in customs procedures for release for domestic consumption (including tax amounts paid or payable by the taxpayer after 180 calendar days from the date of release of goods in accordance with the customs procedure release for domestic consumption upon completion of the customs procedure of a free customs zone on the territory of the Special Economic Zone in the Kaliningrad Region), processing for domestic consumption, temporary import and processing outside the customs territory or when importing goods transported across the border of the Russian Federation without customs clearance, in relation to :
1) goods (works, services), as well as property rights acquired for carrying out operations recognized as objects of taxation in accordance with this chapter, with the exception of goods provided for in paragraph 2 of Article 170 of this Code;
2) goods (works, services) purchased for resale.
The paragraph has been deleted. - the federal law dated December 29, 2000 N 166-FZ;
3) goods (works, services), as well as property rights acquired for the implementation of operations for the sale of works (services), the place of sale of which, in accordance with Article 148 of this Code, is not recognized as the territory of the Russian Federation, with the exception of operations provided for in Article 149 of this Code .
2.1. Subject to deductions are tax amounts presented to the taxpayer when purchasing services specified in paragraph 1 of Article 174.2 of this Code from a foreign organization registered with tax authorities in accordance with paragraph 4.6 of Article 83 of this Code, in the presence of an agreement and (or) settlement document highlighting the amount of tax and indicating the taxpayer identification number and the reason code for registering the foreign organization, as well as documents for the transfer of payment, including the amount of tax, to the foreign organization . Information about such foreign organizations (name, an identification number taxpayer, the reason code for registration and the date of registration with the tax authorities) are posted on the official website federal body executive power, authorized for control and supervision in the field of taxes and fees, in the information and telecommunications network "Internet".
2.2. Tax amounts presented to the taxpayer upon acquisition of goods (work, services) and (or) paid by him in accordance with Article 161 of this Code or when importing goods into the territory of the Russian Federation and other territories under its jurisdiction are subject to deductions, if acquired goods and (or) goods produced using the specified goods (works, services) are intended for further transfer free of charge into the ownership of the Russian Federation for the purposes of organizing and (or) carrying out scientific research in Antarctica.
3. Tax amounts paid in accordance with Article 173 of this Code by tax agents specified in paragraphs 2, 3, 6, 6.1 and 6.2 of Article 161 of this Code, as well as calculated by tax agents specified in paragraph 8 of Article 161 of this Code, are subject to deductions.
The right to these tax deductions is available to buyers - tax agents registered with the tax authorities and acting as taxpayers in accordance with this chapter. Tax agents carrying out transactions specified in paragraphs 4, 5 and 5.1 of Article 161 of this Code do not have the right to include in tax deductions the amounts of tax paid on these transactions.
The provisions of this paragraph apply provided that the goods (work, services), property rights were acquired by the taxpayer, who is a tax agent, for the purposes specified in paragraph 2 of this article, and upon their acquisition he paid the tax in accordance with this chapter or calculated the tax in accordance with paragraph two of paragraph 3.1 of Article 166 of this Code.
4. Tax amounts presented by sellers to a taxpayer - a foreign person who is not registered with the tax authorities of the Russian Federation, upon the acquisition by the said taxpayer of goods (work, services), property rights or paid by him when importing goods into the territory of the Russian Federation and other territories are subject to deduction. located under its jurisdiction, for its production purposes or for its other activities.
The specified amounts of tax are subject to deduction or refund to the taxpayer - a foreign person after payment by the tax agent of the tax withheld from the income of this taxpayer, and only to the extent that the purchased or imported goods (work, services), property rights are used in the production of goods (performance of work , provision of services) sold to the withholding tax agent. These tax amounts are subject to deduction or refund provided that the taxpayer, a foreign person, is registered with the tax authorities of the Russian Federation.
4.1. Subject to deductions are tax amounts calculated by taxpayers - retail trade organizations for goods sold individuals- citizens of foreign states specified in paragraph 1 of Article 169.1 of this Code, in case of export of these goods from the territory of the Russian Federation outside the customs territory of the Eurasian Economic Union (except for the export of goods through the territories of member states of the Eurasian Economic Union) through checkpoints across the State Border Russian Federation.
5. Tax amounts presented by the seller to the buyer and paid by the seller to the budget when selling goods are subject to deductions in the event that these goods are returned (including during the warranty period) to the seller or rejected. Tax amounts paid when performing work (rendering services) are also subject to deductions in the event of refusal of these works (services).
Subject to deductions are the amounts of tax calculated by sellers and paid by them to the budget from the amounts of payment, partial payment on account of upcoming deliveries of goods (performance of work, provision of services) sold on the territory of the Russian Federation, in the event of a change in conditions or termination of the relevant contract and the return of the corresponding advance amounts payments.
The provisions of this paragraph apply to taxpayer buyers acting as tax agents in accordance with paragraphs 2, 3 and 8 of Article 161 of this Code, as well as to tax agents specified in paragraphs 4, 5 and 5.1 of Article 161 of this Code.
6. Tax amounts presented to the taxpayer by contractors (developers or technical customers) during capital construction (liquidation of fixed assets), assembly (disassembly), installation (dismantling) of fixed assets, tax amounts presented to the taxpayer for goods (work, services), property rights acquired for the performance of construction and installation works, the creation of intangible assets, the amount of tax presented to the taxpayer when acquiring objects of unfinished capital construction, the amount of tax presented to the taxpayer when performing work (rendering services) to create an intangible asset.
In the event of reorganization, tax amounts presented to the reorganized (reorganized) organization for goods (works, services), property rights acquired by the reorganized (reorganized) organization to perform construction and installation work for its own consumption, create intangible assets, accepted for deduction, but not accepted for deduction by the reorganized (reorganized) organization at the time of completion of the reorganization.
Subject to deductions are tax amounts calculated by taxpayers in accordance with paragraph 1 of Article 166 of this Code when performing construction and installation work for their own consumption related to property intended for carrying out transactions taxed in accordance with this chapter, the cost of which is subject to inclusion in expenses ( including through depreciation deductions) when calculating corporate income tax.
Amounts of tax accepted by the taxpayer for deduction in relation to acquired or constructed fixed assets in the manner provided for by this chapter are subject to restoration in the cases and in the manner provided for in Article 171.1 of this Code.
Paragraphs five through nine are no longer valid. - Federal Law of November 24, 2014 N 366-FZ.
7. Tax amounts paid on business trip expenses (travel expenses to and from the place of business travel, including expenses for the use of bedding on trains, as well as expenses for renting living quarters) and entertainment expenses accepted for deduction when calculating tax are subject to deductions. on the profits of organizations.
The paragraph is no longer valid. - Federal Law of November 24, 2014 N 366-FZ.
8. Tax amounts calculated by the taxpayer, tax agents specified in paragraphs 4, 5 and 5.1 of Article 161 of this Code are subject to deductions from amounts of payment, partial payment received on account of future deliveries of goods (work, services), property rights.
9. Excluded. - Federal Law of December 29, 2000 N 166-FZ.
10. Tax amounts calculated by the taxpayer in the absence of documents provided for in Article 165 of this Code for sales of goods (work, services) specified in paragraph 1 of Article 164 of this Code are subject to deductions.
11. Deductions from a taxpayer who received property as a contribution (contribution) to the authorized (share) capital (fund), intangible assets and property rights are subject to tax amounts that were restored by the shareholder (participant, shareholder) in the manner established by paragraph 3 of Article 170 of this Code, if they are used to carry out transactions recognized as objects of taxation in accordance with this chapter.
12. Tax amounts presented by the seller of these goods (works, services), property rights are subject to deductions from a taxpayer who has transferred amounts of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.
Subject to deductions are the amounts of tax calculated by the tax agent specified in paragraph 8 of Article 161 of this Code from the amounts of payment, partial payment transferred on account of the upcoming purchase of goods specified in paragraph 8 of Article 161 of this Code.
13. If the cost of shipped (purchased) goods (work performed, services provided), transferred property rights changes downward, including in the event of a decrease in price (tariff) and (or) a decrease in the quantity (volume) of shipped (purchased) goods ( work performed, services provided), transferred property rights, deductions from the seller (buyer acting as a tax agent in accordance with paragraph 8 of Article 161 of this Code, tax agents specified in paragraphs 4, 5 and 5.1 of Article 161 of this Code) of these goods ( works, services), property rights are subject to the difference between the tax amounts calculated on the basis of the cost of goods shipped (purchased) (work performed, services rendered), transferred property rights before and after such a reduction.
If there is an increase in the cost of shipped goods (work performed, services rendered), transferred property rights, including in the event of an increase in price (tariff) and (or) an increase in the quantity (volume) of shipped goods (work performed, services rendered), transferred property rights, the difference between the tax amounts calculated based on the cost of shipped goods (work performed, services rendered), transferred property rights before and after such an increase, is subject to deduction from the buyer of these goods (work, services), property rights.
14. Tax amounts calculated by the taxpayer when importing goods based on the results tax period, in which a 180-day period has expired from the date of release of these goods in accordance with the customs procedure for release for domestic consumption upon completion of the customs procedure of the free customs zone on the territory of the Special Economic Zone in the Kaliningrad region, can be taken for deduction after using these goods for the implementation of transactions recognized as objects of taxation and subject to taxation in accordance with this chapter.
Comments to Art. 171 Tax Code of the Russian Federation
Issues related to the legality of the taxpayer deducting amounts of value added tax are the cornerstone of all law enforcement practice related to the calculation and payment of this tax.
The procedure and conditions for applying tax deductions are established in Articles 171 and 172 of the Tax Code of the Russian Federation. The taxpayer’s right to deduct value added tax arises if goods (work, services) were purchased for transactions subject to value added tax, were registered, and an invoice was presented in accordance with the requirements of Article 169 of the Tax Code of the Russian Federation. Until 01/01/2006 also prerequisite was the availability of documents confirming the payment of value added tax.
Only if all of the above conditions are met, the taxpayer has the right to claim value added tax for deduction. The Tax Code of the Russian Federation does not provide for any other conditions for the application of tax deductions.
In the Tax Code of the Russian Federation, such a condition as the implementation of taxable transactions during the tax period for the application of tax deductions is not directly established.
Nevertheless, the Ministry of Finance of Russia, in a letter dated 02/08/2005 N 03-04-11/23, referring to paragraph 1 of Article 166 of the Tax Code of the Russian Federation, according to which the amount of value added tax when determining the tax base in accordance with Articles 154 - 159 and 162 of the Tax Code of the Russian Federation is calculated as the corresponding tax rate percentage share of the tax base, explained that if the taxpayer does not calculate the tax base for value added tax during the tax period, then there is no reason to deduct the amount of value added tax paid to suppliers of goods (works, services). In this regard, these tax deductions are made no earlier than the reporting period in which the tax base for value added tax arises.
This position was repeatedly confirmed by the Russian Ministry of Finance later (see, for example, letters dated December 25, 2007 N 03-07-11/642, dated March 30, 2007 N 03-06-06-06/4 and dated September 2, 2008 N 07-05 -06/191).
In 2009, the Russian Ministry of Finance further consolidated this position.
The Financial Department in a letter dated 01.10.2009 N 03-07-11/245 indicated that if the taxpayer does not calculate the tax base for value added tax during the tax period, then deduct the amount of value added tax on purchased goods (works) , services) is illegal.
At the same time, specialists from the Russian Ministry of Finance “modestly” noted that the opinion provided is of an informational and explanatory nature and does not prevent one from being guided by the norms of legislation on taxes and fees in an understanding that differs from the interpretation set out in this letter.
Judicial practice, formed on the issue under consideration, adheres to a different understanding of its resolution.
It should be noted that with uniformity judicial practice There are several justifications that the VAT deduction can be applied in the event of non-execution of taxable transactions during the tax period.
In the Resolution of the Federal Antimonopoly Service of the Moscow District dated March 17, 2009 N KA-A41/1603-09, the court indicated that in the absence of a taxable object, the tax base is zero, which does not prevent the use of the deduction.
FAS Moscow District in Resolution dated March 11, 2008 N KA-A40/1244-08 and FAS Central District in Resolution No. A64-4677/07-19 dated 06/05/2008, he noted that by virtue of Article 174 of the Tax Code of the Russian Federation, the taxpayer is obliged to file a declaration (and, accordingly, determine tax liabilities) based on the results of each tax period. Therefore, the absence of transactions subject to VAT during the period cannot be grounds for refusal to apply deductions.
The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 14996/05 dated May 3, 2006, indicated that subject to the conditions specified in Article 172 of the Tax Code of the Russian Federation, the taxpayer has the right to deduct from the total amount of value added tax payable to the budget the amount of tax paid to suppliers of goods ( works, services). At the same time, the norms of Chapter 21 of the Tax Code of the Russian Federation do not establish the dependence of tax deductions on purchased goods (work, services) on the actual calculation of tax for specific transactions for which these goods (work, services) were purchased. The sale of goods (work, services) for specific transactions in the same tax period is not, by force of law, a condition for the application of tax deductions.
This position is supported, for example, in the Resolutions of the Federal Antimonopoly Service of the West Siberian District dated June 29, 2009 N F04-3824/2009(9601-A70-42), the Volga District Federal Antimonopoly Service dated July 6, 2009 N A57-56/2009 and the North Caucasus District Federal Antimonopoly Service dated June 17, 2009 N A32-24122/2008-45/421.
Note that the tax authorities are uniform in their position.
The Moscow Department of the Federal Tax Service of Russia in a letter dated March 12, 2009 N 16-15/021505 noted that the legislation does not link the right to apply tax deductions for purchased goods (work, services) with the direct sale of these goods (work, services) in the relevant tax office. period.
The use of tax deductions if the taxpayer does not have in the corresponding tax period the amounts of tax calculated for payment to the budget in accordance with Article 166 of the Tax Code of the Russian Federation is not provided for by law.
Consequently, the taxpayer does not have the right to deduct VAT amounts in the current tax period if he has no transactions that are subject to VAT and (or) income during the tax period Money, increasing the tax base.
Thus, these tax deductions are made no earlier than the reporting period in which the VAT tax base arises.
In judicial practice, there are disputes regarding the right of a taxpayer to tax deductions of VAT amounts if the invoice is issued by an individual who is not an individual entrepreneur.
In letter dated October 11, 2004 N 03-04-11/165, the Russian Ministry of Finance explained that individuals are not payers of value added tax.
Articles 169, 171 - 172 of the Tax Code of the Russian Federation establish conditions for taxpayers to exercise their right to tax deductions.
Thus, individuals who do not have the status of an individual entrepreneur are not considered VAT payers and, accordingly, cannot issue invoices for the amounts of goods (work, services) paid.
Based on the foregoing and since VAT cannot be deducted without invoices, the taxpayer does not have the right to tax deductions of VAT amounts if the invoice is issued by an individual who is not an individual entrepreneur.
In judicial practice, there are disputes regarding the need for the purposes of the legality of applying tax deductions to maintain separate accounting of amounts of value added tax for transactions, both taxable and non-taxable: the taxpayer simultaneously carries out transactions for the acquisition of goods (work, services) subject to taxation , and implementation operations valuable papers(bills of exchange), exempt from taxation on the basis of subparagraph 12 of paragraph 2 of Article 149 of the Tax Code of the Russian Federation.
By virtue of subparagraph 12 of paragraph 2 of Article 149 of the Tax Code of the Russian Federation, the sale (as well as the transfer, execution, provision for one’s own needs) on the territory of the Russian Federation of shares in the authorized (share) capital of organizations, shares in mutual funds of cooperatives and mutual investment funds, securities and derivatives instruments (including forwards, futures contracts, options).
Based on paragraph 1 of Article 39 of the Tax Code of the Russian Federation, the transfer of ownership of goods is recognized as the sale of goods.
Clause 3 of Article 38 of the Tax Code of the Russian Federation establishes that for the purposes of the Tax Code of the Russian Federation any property that is sold or intended for sale is recognized as a product.
Article 128 of the Civil Code of the Russian Federation stipulates that securities are classified as property.
As stated in the letter of the Ministry of Finance of Russia dated 06.06.2005 N 03-04-11/126, the transfer of ownership of a bill of exchange to a third party, including in exchange for goods, for the purpose of applying VAT is recognized as the sale of a bill of exchange, exempt from taxation. Consequently, the taxpayer is obliged to apply the rules of paragraph 4 of Article 170 of the Tax Code of the Russian Federation.
The Moscow Department of the Federal Tax Service of Russia in letter dated December 20, 2004 N 24-11/83009 also explains that when transferring a bill of exchange of a third party as payment for purchased goods (work, services), the transferring organization has an operation to sell the security, which is not subject to VAT on the basis of subparagraph 12 of paragraph 2 of Article 149 of the Tax Code of the Russian Federation.
From this letter, as well as the letter of the Ministry of Taxes and Taxes of Russia dated June 15, 2004 N 03-2-06/1/1372/22, we can conclude that the taxpayer in this situation must apply the norms of paragraph 4 of Article 170 of the Tax Code of the Russian Federation.
In judicial practice on this issue there is an opposite position.
The courts come to the conclusion that the provisions of paragraph 4 of Article 170 of the Tax Code of the Russian Federation are subject to application only if the taxpayer sells bills under sales contracts. In the case when a bill of exchange (either one’s own or a third party’s) is used as a means of payment for purchased goods (work, services), the rules of paragraph 4 of Article 170 of the Tax Code of the Russian Federation are not subject to application.
This conclusion is confirmed by Resolutions of the Federal Antimonopoly Service of the Moscow District dated January 21, 2008 N KA-A40/14500-07-P, the Federal Antimonopoly Service of the Northwestern District dated June 10, 2005 N A66-7746/2004, and the Ural District Federal Antimonopoly Service dated February 13, 2007 N F09-481/ 07-C3, Federal Antimonopoly Service of the Central District dated June 24, 2008 N A48-4405/07-15.
171Article 171 of the Tax Code of the Russian Federation. Tax deductions for VAT
When carrying out, from January 1, 2009, commodity exchange transactions, offsets of mutual claims, when using securities in settlements, tax amounts presented to the taxpayer upon acquisition of goods (work, services), property rights accepted for accounting before December 31, 2008 inclusive, are subject to deduction in accordance with Chapter 21 of the Tax Code as amended in force on the date of acceptance for registration of the specified goods (works, services), property rights (Federal “law” dated November 26, 2008 N 224-FZ).
Paragraphs 1 and 2 of Article 171 are subject to application in accordance with the constitutional and legal meaning identified in the “Definition” of the Constitutional Court of the Russian Federation dated July 12, 2006 N 266-O.
1. The taxpayer has the right to reduce the total amount of tax calculated in accordance with “Article 166” of this Code by the tax deductions established by this article.
On the “refusal” to accept for consideration a complaint about a violation of constitutional rights and freedoms by the provisions of paragraph 2 of Article 171 and on the “clarification” of the concept of “actually paid amounts of tax in forms of payment that do not involve the movement of funds,” see the “Definition” of the Constitutional Court of the Russian Federation dated 04/08/2004 N 169-O.
For the official explanation of the “Definition” of the Constitutional Court of the Russian Federation dated April 8, 2004 N 169-O, see “Definition” of the Constitutional Court of the Russian Federation dated November 4, 2004 N 324-O.
2. Tax amounts presented to the taxpayer upon acquisition of goods (work, services), as well as property rights on the territory of the Russian Federation, or paid by the taxpayer upon importation of goods into the territory of the Russian Federation and other territories under its jurisdiction, in customs procedures for “release” are subject to deductions. for internal consumption", "temporary import" and "processing outside the customs territory" or when importing goods transported across the border of the Russian Federation without customs clearance, in relation to: (as amended by the Federal "law" dated November 27, 2010 N 306-FZ)
1) goods (work, services), as well as property rights acquired for carrying out transactions recognized as objects of taxation in accordance with this chapter, with the exception of goods provided for in “clause 2 of Article 170” of this Code; (as amended by Federal Laws dated December 29, 2000 “N 166-FZ”, dated May 29, 2002 “N 57-FZ”, dated July 22, 2005 “N 119-FZ”)
2) goods (works, services) purchased for resale.
The paragraph has been deleted. - Federal “law” of December 29, 2000 N 166-FZ.
3. Tax amounts paid in accordance with “Article 173” of this Code by buyers who are tax agents are subject to deductions. (as amended by the Federal “law” dated December 29, 2000 N 166-FZ)
The right to these tax deductions is available to buyers - tax agents registered with the tax authorities and acting as taxpayers in accordance with this chapter. Tax agents carrying out transactions specified in “clauses 4” and “5 of Article 161” of this Code do not have the right to include in tax deductions the amounts of tax paid on these transactions.
(as amended by Federal Laws dated December 29, 2000 “N 166-FZ”, dated May 29, 2002 “N 57-FZ”, dated July 22, 2005 “N 119-FZ”)
The provisions of this paragraph apply provided that the goods (work, services), property rights were acquired by the taxpayer, who is a tax agent, for the purposes specified in “paragraph 2” of this article, and upon their acquisition he paid tax in accordance with this chapter. (as amended by Federal Laws dated December 29, 2000 “N 166-FZ”, dated November 26, 2008 “N 224-FZ”)
4. Tax amounts presented by sellers to a taxpayer - a foreign person who is not registered with the tax authorities of the Russian Federation, upon the acquisition by the said taxpayer of goods (work, services), property rights or paid by him when importing goods into the territory of the Russian Federation and other territories are subject to deduction. located under its jurisdiction, for its production purposes or for its other activities. (as amended by Federal Laws dated December 29, 2000 “N 166-FZ”, dated July 22, 2005 “N 119-FZ”, dated November 27, 2010 “N 306-FZ”)
The specified amounts of tax are subject to deduction or refund to the taxpayer - a foreign person after payment by the tax agent of the tax withheld from the income of this taxpayer, and only to the extent that the purchased or imported goods (work, services), property rights are used in the production of goods (performance of work , provision of services) sold to the withholding tax agent. These tax amounts are subject to deduction or refund provided that the taxpayer, a foreign person, is registered with the tax authorities of the Russian Federation. (as amended by Federal Laws dated December 29, 2000 “N 166-FZ”, dated July 22, 2005 “N 119-FZ”)
5. Tax amounts presented by the seller to the buyer and paid by the seller to the budget when selling goods are subject to deductions in the event that these goods are returned (including during the warranty period) to the seller or rejected. Tax amounts paid when performing work (rendering services) are also subject to deductions in the event of refusal of these works (services).
Subject to deductions are the amounts of tax calculated by sellers and paid by them to the budget from the amounts of payment, partial payment on account of upcoming deliveries of goods (performance of work, provision of services) sold on the territory of the Russian Federation, in the event of a change in conditions or termination of the relevant contract and the return of the corresponding advance amounts payments. (as amended by the Federal “law” dated July 22, 2005 N 119-FZ)
The provisions of this paragraph apply to taxpayer buyers performing the duties of a tax agent in accordance with “paragraph 2 of Article 161” of this Code. (paragraph introduced by Federal “law” dated May 17, 2007 N 85-FZ)
6. Tax amounts presented to the taxpayer by contractors (customers-developers) during capital construction, assembly (installation) of fixed assets, tax amounts presented to the taxpayer for goods (work, services) purchased by him to perform construction and installation work are subject to deductions. , and the amount of tax presented to the taxpayer when he acquired objects of unfinished capital construction.
In the event of reorganization, tax amounts presented to the reorganized (reorganized) organization for goods (works, services) purchased by the reorganized (reorganized) organization to perform construction and installation work for its own consumption, accepted for deduction, are subject to deductions from the “successor” (successors). not accepted by the reorganized (reorganized) organization for deduction at the time of completion of the reorganization.
Amounts of tax calculated by the taxpayer when performing construction and installation work for own consumption from January 1, 2006 to January 1, 2009 and not accepted for deduction before the entry into force of the Federal “law” of November 26, 2008 N 224-FZ, are subject to deductions in in the manner provided for by “Article 172” as amended, in force before the date of entry into force of the said Federal Law (Federal “Law” dated November 26, 2008 N 224-FZ).
Subject to deductions are tax amounts calculated by taxpayers in accordance with paragraph 1 of Article 166 of this Code when performing construction and installation work for their own consumption related to property intended for carrying out operations taxed in accordance with this chapter, the cost of which is subject to inclusion in expenses (including through depreciation deductions) when calculating corporate income tax.
Amounts of tax presented to the taxpayer when contractors carry out capital construction of real estate (fixed assets), upon acquisition real estate(except for aircraft, sea vessels and inland navigation vessels, as well as space objects), calculated by the taxpayer when performing construction and installation work for his own consumption, accepted for deduction in the manner prescribed by this chapter, are subject to restoration if the specified real estate objects ( fixed assets) are subsequently used to carry out the operations specified in paragraph 2 of Article 170 of this Code, with the exception of fixed assets that are fully depreciated or at least 15 years have passed since their commissioning for the given taxpayer.
In the case specified in “paragraph four” of this paragraph, the taxpayer is obliged at the end of each calendar year for ten years starting from the year in which the moment specified in “paragraph 4 of Article 259” of this Code occurred in the tax return submitted to the tax authorities authorities at the place of their registration for the last tax period of each calendar year out of ten, reflect the restored amount of tax. The amount of tax to be restored and paid to the budget is calculated based on one tenth of the amount of tax accepted for deduction in the corresponding share. The specified share is determined based on the cost of goods shipped (work performed, services rendered), transferred property rights, non-taxable and specified in paragraph 2 of Article 170 of this Code, in the total cost of goods (work, services), property rights shipped ( transferred) for the calendar year. The amount of tax to be restored is not included in the cost of this property, but is taken into account as part of other expenses in accordance with “Article 264” of this Code. (as amended by the Federal “law” dated July 22, 2008 N 158-FZ) (clause 6 as amended by the Federal “law” dated July 22, 2005 N 119-FZ)
7. Subject to deductions are the amounts of tax paid on “business travel expenses” (expenses for travel to and from the place of business travel, including expenses for the use of bedding on trains, as well as expenses for renting living quarters) and “representation expenses” accepted for deduction when calculating corporate income tax. (as amended by the Federal “law” dated 06.08.2001 N 110-FZ)
If, in accordance with “Chapter 25” of this Code, expenses are accepted for tax purposes according to the standards, the amount of tax on such expenses is subject to deduction in the amount corresponding to the specified standards. (as amended by the Federal “law” dated May 29, 2002 N 57-FZ)
8. Tax amounts calculated by the taxpayer from amounts of payment, partial payment received on account of upcoming deliveries of goods (work, services) are subject to deductions. (as amended by Federal Laws dated December 29, 2000 “N 166-FZ”, dated May 29, 2002 “N 57-FZ”, dated July 22, 2005 “N 119-FZ”)
Your income and expenses business transactions Only those individual entrepreneurs who use the general taxation system maintain and record in a special book. Entrepreneurs using special regimes (for example, simplified) do not have to keep such a book. According to the provisions of the Tax Code of the Russian Federation, the tax authority may request, and the taxpayer must provide, an accounting book only if the inspection conducts an on-site or office inspection tax audit. The book delivery period is 10 working days. A desk audit is an audit carried out within 3 months from the date of submission of the declaration without any special decision of the head of the tax authority. It is carried out at the location of the tax service. For such checks, there is a clearly limited list of cases when the inspector may require any documents:
- need to confirm tax benefits, and the inspector requires the relevant documents;
- the inspector demands documents that should have been submitted along with the tax return;
- the inspector requires documents that can confirm the legality of VAT tax deductions if they are claimed for reimbursement;
- the inspector requires documents confirming the need to pay tax in connection with the use of natural resources.
Is it possible to deduct VAT if payment was made in goods and not in money?
Article 171 of the Tax Code of the Russian Federation 2016 is devoted to deductions. These are the amounts of tax paid by which you can reduce its amount. According to paragraph 12 of this article, amounts for goods paid for by this taxpayer are deducted from already paid VAT. The deduction amount is calculated based on invoices issued by sellers. Documents must confirm the fact of payment. What to do if the payment with the seller is made not in money, but in goods? Does it mean that you cannot get a VAT deduction because of this? The Ministry of Finance and the Supreme Arbitration Court of the Russian Federation have different conclusions on this issue. In one of the letters, the Ministry of Finance explained that it would not be possible to receive a deduction in such a situation, because the taxpayer would not have a payment order in hand confirming the amount paid. However, the Supreme Arbitration Court of the Russian Federation explained the situation differently. According to the Plenum, Article 171 of the Tax Code of the Russian Federation 2016 does not indicate that the right to deduction arises only when paying for goods in cash. The Plenum decided that if the payment was made in kind, for example, in goods or products, this does not mean that the buyer is deprived of the right to a tax deduction. So, it turns out that tax services in their activities must be guided by Resolution of the Plenum of the Supreme Arbitration Court No. 33 of May 30, 2014 and accept VAT as a deduction from taxpayer buyers who received payment in kind. The question of how these taxpayers can confirm their right to deduction remains unresolved. For now, the following solution appears: payers need to register invoices for non-monetary payments in the purchase book and indicate the corresponding deductions in equivalent monetary form in the current declaration. This procedure is not enshrined in law, but is so far the only option that allows not to neglect the right to deduct VAT for those taxpayers who accept payments in products rather than in money.
Can a tenant company receive a VAT deduction if it replaces wooden windows with plastic ones at its own expense?
Let's consider modern legislative norms to ensure that the comments are relevant. According to the rules (), which apply by default, unless the lease agreement provides otherwise, the tenant, using the premises entrusted to him, carries out its current repairs at his own expense and bears all the costs of maintaining the property. However, work on replacing wooden windows cannot be called routine repairs. Such work refers to major renovations of the premises. Major repairs involve replacing outdated, worn-out structural elements of a building (premises) with newer, practical and durable ones. If necessary, you can overhaul individual elements or parts of the building, such as window units. So, a complete change of dilapidated windows is major repairs. The landlord pays for such repairs. If the tenant replaced the windows at his own expense, then after the expiration of the lease agreement he has the right to demand compensation from the landlord for his costs. After all, such a replacement is an inseparable improvement of the property owned by the tenant. Since the lessor company reimburses the costs of replacing windows, it has the right to include the cost of replacing them as expenses when calculating income tax. This expense is confirmed by an estimate, an acceptance certificate for work performed, a contract, an order from the head of the company to carry out repairs, and similar documents. Since the renter company paid for the repairs, it is the tenant company that has the right to deduct VAT, and not the landlord. The landlord simply reimburses her for the actual expenses incurred. The deduction of VAT, which was paid by the tenant company when installing new windows, is provided on the general basis contained in Article 171 of the Tax Code of the Russian Federation 2016 with comments. According to para. 1, paragraph 6 of this article, the deduction applies to tax amounts presented to the taxpayer by contractors during capital construction and installation of fixed assets of the company. Tax amounts on goods purchased for construction and installation work are also subject to deductions. So, based on the Civil Code of the Russian Federation, the Tax Code of the Russian Federation and comments, we can draw a conclusion. It turns out that if these conditions are met, the tenant company can apply a deduction for the tax included in the cost of construction and installation work to replace windows. The fact that the tenant ultimately transfers the inseparable improvements to the premises made at his own expense to the landlord does not affect his right to receive a tax deduction. It does not matter that the costs incurred will subsequently (after the expiration of the lease agreement) be compensated by the lessor. The work to replace the windows was carried out at the expense of the tenant, who paid the VAT included by the contractors in their cost. This means that the tenant company has the right to receive a tax deduction for the period when settlements with contractors were made.
Article 171. Tax deductions
1. The taxpayer has the right to reduce the total amount of tax calculated in accordance with Article 166 of this Code by the tax deductions established by this article.
2. Tax amounts presented to the taxpayer upon acquisition of 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 territory of the Russian Federation and other territories under its jurisdiction, in customs release procedures for domestic consumption (including tax amounts paid or payable by the taxpayer after 180 calendar days from the date of release of goods in accordance with the customs procedure for release for domestic consumption upon completion of the customs procedure of the free customs zone on the territory of the Special Economic Zone in the Kaliningrad Region), processing for internal consumption, temporary import and processing outside the customs territory or when importing goods transported across the border of the Russian Federation without customs clearance, in relation to:
1) goods (work, services), as well as property rights acquired for carrying out transactions recognized as objects of taxation in accordance with this chapter, with the exception of goods provided for in paragraph 2 of Article 170 of this Code;
2) goods (works, services) purchased for resale.
The paragraph has been deleted.
3) goods (works, services), as well as property rights acquired for the implementation of operations for the sale of works (services), the place of sale of which, in accordance with Article 148 of this Code, is not recognized as the territory of the Russian Federation, with the exception of operations provided for in Article 149 of this Code .
2.1. Subject to deductions are tax amounts presented to the taxpayer when purchasing services specified in paragraph 1 of Article 174.2 of this Code from a foreign organization registered with the tax authorities in accordance with paragraph 4.6 of Article 83 of this Code, in the presence of an agreement and (or) payment document with highlighting the amount of tax and indicating the taxpayer identification number and the reason code for registering the foreign organization, as well as documents for the transfer of payment, including the amount of tax, to the foreign organization. Information about such foreign organizations (name, taxpayer identification number, reason code for registration and date of registration with the tax authorities) is posted on the official website of the federal executive body authorized for control and supervision in the field of taxes and fees, in the information and telecommunications Internet network.
2.2. Subject to deductions are tax amounts presented to the taxpayer upon acquisition of goods (work, services) and (or) paid by him in accordance with Article 161 of this Code or upon importation of goods into the territory of the Russian Federation and other territories under its jurisdiction, if acquired goods and (or) goods produced using the specified goods (works, services) are intended for further transfer free of charge into the ownership of the Russian Federation for the purposes of organizing and (or) conducting scientific research in Antarctica.
3. Tax amounts paid in accordance with Article 173 of this Code by tax agents specified in paragraphs 2, 3, 6, 6.1 and 6.2 of Article 161 of this Code, as well as calculated by tax agents specified in paragraph 8 of Article 161 of this Code, are subject to deductions.
The right to these tax deductions is available to buyers - tax agents registered with the tax authorities and acting as taxpayers in accordance with this chapter. Tax agents carrying out transactions specified in paragraphs 4, 5 and 5.1 of Article 161 of this Code do not have the right to include in tax deductions the amounts of tax paid on these transactions.
The provisions of this paragraph apply provided that the goods (work, services), property rights were acquired by the taxpayer, who is a tax agent, for the purposes specified in paragraph 2 of this article, and upon their acquisition he paid the tax in accordance with this chapter or calculated the tax in accordance with paragraph two of paragraph 3.1 of Article 166 of this Code.
4. Tax amounts presented by sellers to a taxpayer - a foreign person who is not registered with the tax authorities of the Russian Federation, upon the acquisition by the said taxpayer of goods (work, services), property rights or paid by him when importing goods into the territory of the Russian Federation and other territories are subject to deduction. located under its jurisdiction, for its production purposes or for its other activities.
The specified amounts of tax are subject to deduction or refund to the taxpayer - a foreign person after payment by the tax agent of the tax withheld from the income of this taxpayer, and only to the extent that the purchased or imported goods (work, services), property rights are used in the production of goods (performance of work , provision of services) sold to the withholding tax agent. These tax amounts are subject to deduction or refund provided that the taxpayer, a foreign person, is registered with the tax authorities of the Russian Federation.
4.1. Subject to deductions are tax amounts calculated by taxpayers - retail trade organizations for goods sold to individuals - citizens of foreign states specified in paragraph 1 of Article 169.1 of this Code, in the event of export of these goods from the territory of the Russian Federation outside the customs territory of the Eurasian Economic Union (with the exception of export of goods through the territories of member states of the Eurasian Economic Union) through checkpoints across the State Border of the Russian Federation.
5. Tax amounts presented by the seller to the buyer and paid by the seller to the budget when selling goods are subject to deductions in the event that these goods are returned (including during the warranty period) to the seller or rejected. Tax amounts paid when performing work (rendering services) are also subject to deductions in the event of refusal of these works (services).
Subject to deductions are the amounts of tax calculated by sellers and paid by them to the budget from the amounts of payment, partial payment on account of upcoming deliveries of goods (performance of work, provision of services) sold on the territory of the Russian Federation, in the event of a change in conditions or termination of the relevant contract and the return of the corresponding advance amounts payments.
The provisions of this paragraph apply to taxpayer buyers acting as tax agents in accordance with paragraphs 2, 3 and 8 of Article 161 of this Code, as well as to tax agents specified in paragraphs 4, 5 and 5.1 of Article 161 of this Code.
6. Tax amounts presented to the taxpayer by contractors (developers or technical customers) during capital construction (liquidation of fixed assets), assembly (disassembly), installation (dismantling) of fixed assets, tax amounts presented to the taxpayer for goods (work, services), property rights acquired for the performance of construction and installation works, the creation of intangible assets, the amount of tax presented to the taxpayer when acquiring objects of unfinished capital construction, the amount of tax presented to the taxpayer when performing work (rendering services) to create an intangible asset.
In the event of reorganization, tax amounts presented to the reorganized (reorganized) organization for goods (works, services), property rights acquired by the reorganized (reorganized) organization to perform construction and installation work for its own consumption, create intangible assets, accepted for deduction, but not accepted for deduction by the reorganized (reorganized) organization at the time of completion of the reorganization.
Subject to deductions are tax amounts calculated by taxpayers in accordance with paragraph 1 of Article 166 of this Code when performing construction and installation work for their own consumption related to property intended for carrying out transactions taxed in accordance with this chapter, the cost of which is subject to inclusion in expenses ( including through depreciation deductions) when calculating corporate income tax.
Amounts of tax accepted by the taxpayer for deduction in relation to acquired or constructed fixed assets in the manner provided for by this chapter are subject to restoration in the cases and in the manner provided for in Article 171.1 of this Code.
Paragraphs five through nine are no longer valid. - Federal Law of November 24, 2014 N 366-FZ.
7. Tax amounts paid on business trip expenses (travel expenses to and from the place of business travel, including expenses for the use of bedding on trains, as well as expenses for renting living quarters) and entertainment expenses accepted for deduction when calculating tax are subject to deductions. on the profits of organizations.
The paragraph is no longer valid. - Federal Law of November 24, 2014 N 366-FZ.
8. Tax amounts calculated by the taxpayer, tax agents specified in paragraphs 4, 5 and 5.1 of Article 161 of this Code are subject to deductions from amounts of payment, partial payment received on account of future deliveries of goods (work, services), property rights.
9. Excluded.
10. Tax amounts calculated by the taxpayer in the absence of documents provided for in Article 165 of this Code for sales of goods (work, services) specified in paragraph 1 of Article 164 of this Code are subject to deductions.
11. Deductions from a taxpayer who received property, intangible assets and property rights as a contribution (contribution) to the authorized (joint) capital (fund) are subject to tax amounts that were restored by the shareholder (participant, shareholder) in the manner established by paragraph 3 of the article 170 of this Code, if they are used to carry out transactions recognized as objects of taxation in accordance with this chapter.
12. Tax amounts presented by the seller of these goods (works, services), property rights are subject to deductions from a taxpayer who has transferred amounts of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.
Subject to deductions are the amounts of tax calculated by the tax agent specified in paragraph 8 of Article 161 of this Code from the amounts of payment, partial payment transferred on account of the upcoming purchase of goods specified in paragraph 8 of Article 161 of this Code.
13. If the cost of shipped (purchased) goods (work performed, services provided), transferred property rights changes downward, including in the event of a decrease in price (tariff) and (or) a decrease in the quantity (volume) of shipped (purchased) goods ( work performed, services provided), transferred property rights, the difference between the tax amounts calculated on the basis of the cost of shipped (purchased) goods (work performed, services rendered), transferred property rights before and after such a reduction.
If there is an increase in the cost of shipped goods (work performed, services rendered), transferred property rights, including in the event of an increase in price (tariff) and (or) an increase in the quantity (volume) of shipped goods (work performed, services rendered), transferred property rights, the difference between the tax amounts calculated based on the cost of shipped goods (work performed, services rendered), transferred property rights before and after such an increase, is subject to deduction from the buyer of these goods (work, services), property rights.
14. Amounts of tax calculated by the taxpayer upon import of goods based on the results of the tax period in which the 180-day period has expired from the date of release of these goods in accordance with the customs procedure for release for domestic consumption upon completion of the customs procedure of the free customs zone on the territory of the Special Economic Zone in Kaliningrad region, can be taken for deduction after using these goods to carry out transactions recognized as objects of taxation and subject to taxation in accordance with this chapter.
1. Standardized costs include the following types costs:
1.1. travel expenses (expenses for business trips) within the limits established by law;
1.2. costs of paying for the cost of fuel and energy resources spent within the limits established in accordance with the law.
In the absence of such standards for mechanical Vehicle costs are accepted within the limits of fuel consumption standards established by their manufacturer, and in the absence of such - within the limits established by the head of the organization. The standards established by the head of the organization are valid until approved by the regulatory legal act in accordance with the established procedure, norms for the corresponding mechanical vehicle, unless otherwise provided by law. In the absence of established norms for the consumption of fuel and energy resources, the costs of paying for their costs are considered excessive;
1.3. losses from shortages and (or) damage during storage, transportation and (or) sale of goods, stocks within the limits of natural loss norms, as well as loss (breakage) norms established by law, and in their absence - within the limits established by the manager by agreement with the owner, general meeting participants, members of a consumer society, authorized persons or a person authorized by them. In the absence of established standards, such shortages and (or) damage to goods are recognized as excess;
1.4. expenses for management services provided individual entrepreneurs, as well as organizations applying special tax regimes, within the amount calculated based on the ratio of the average wages heads of organizations and the average salary for the organization as a whole, determined in the manner and amount established by law;
1.5. costs for controlled debt within the limits calculated in accordance with;
1.6. for organizations operating housing stock and (or) providing housing and communal services, with the exception of organizations of the system of the Ministry of Energy of the Republic of Belarus - costs of paying overhead costs and technological losses within the limits of norms and standards established in accordance with the legislation;
1.7. other costs specified in paragraph 2 of this article.
2. Other costs include:
2.1. payments to individuals working in organizations under employment contracts, in cash and in kind in the form of:
remuneration based on the results of work for the year, payments in the nature of remuneration based on the results of work for the year;
one-time benefits to persons retiring;
additional payments, compensations, benefits, the payment procedure for which and their minimum amount are established by law and for which the legislation provides the right to increase them, in the amounts established by the collective agreement, agreement, employer, exceeding the minimum amount;
additional payments, compensations, benefits for which the law provides the right to determine the amount and procedure for payment, in the amounts established by the collective agreement, agreement, employer, within the limits established by law, if any;
lump sum payment ( material aid, allowance) for health improvement;
payment for additional vacations, the obligation to provide which is established by law. This provision also applies to the payment, in accordance with the law, of monetary compensation for unused days of the specified additional vacations;
2.2. landscaping expenses settlements and adjacent territories, memorial places;
2.3. expenses for holding, in accordance with the law, on the occasion of public holidays, public holidays and memorable dates, official celebrations, military parades, artillery salutes and fireworks;
2.4. remuneration and (or) reimbursed expenses to members of the board of directors (supervisory board), state representatives in the management bodies of organizations, unless otherwise provided by law;
2.5. entertainment expenses;
2.6. costs of transportation (delivery) of buyers (customers) to a retail facility (place of work, provision of services) and back in directions served by public passenger transport;
2.7. compensation for the use of personal vehicles paid to employees whose work is not traveling in nature, as well as rental amounts paid to such employees who act as lessors of a personal vehicle;
2.8. membership fees (entrance and other) to associations of entrepreneurs and employers, unions, associations;
2.9. interest on overdue payments on the principal debt of loans and credits.
3. The total amount of other expenses taken into account for taxation cannot exceed one (1) percent of the proceeds from the sale of goods (work, services), property rights and amounts of income specified in subclause 3.18 of clause 3, taking into account value added tax (for banks - from the amount of income determined in accordance with, minus income related in accordance with this Code to non-operating income, except for the amounts of income specified in subclause 3.18 of clause 3).
