Article 143 of the Tax Code of the Russian Federation. Taxpayers

Object of taxation

The object of value added tax in Russia is the entire turnover of sales of goods (works and services) produced by an enterprise.

In order to allocate VAT and to avoid double taxation, the difference between the amount of tax paid to the supplier and received from the consumer is transferred to the budget. As a result, this amount is charged to the end consumer of the product and does not affect the interests of manufacturers and resellers.

Art. 146 of the Tax Code (TC) of the Russian Federation defines the following objects of VAT taxation:

Sales of goods (works, services), including transfer of ownership rights and sale of collateral. The exception is: the provision of premises for rent to foreign organizations that are accredited in Russia or to foreign citizens, the sale of medical goods according to the list approved by the Government of the Russian Federation, ritual goods and services included in the list approved by the Government of the Russian Federation, handicraft goods, except for excisable goods.
Transfer of goods for one’s own needs, the costs of which, in the process of calculating income as profit, are not deductible;
Construction and installation work that was performed for one’s own needs;
Import of products into the customs territory of Russia.

Payers of value added tax

According to paragraph 1 of Art. 143 of the Tax Code of the Russian Federation, the VAT payer is:

absolutely all enterprises and organizations, regardless of their organizational and legal forms, types of activities, forms of ownership, etc., carrying out any commercial activity;
individual entrepreneurs;
international associations;
institutions with foreign investment;
persons moving goods across the customs border of the Russian Federation;
tax agents are not VAT payers, however, according to Art. 161 of the Tax Code of the Russian Federation, in cases specified by law, they are obliged to withhold VAT from their suppliers and pay it to the budget, while they must submit reports on these transactions to the tax authorities.

Taxpayers who have switched to a simplified taxation system and agricultural enterprises using the single agricultural tax are not VAT payers. Organizations and individual enterprises that pay a single tax are not VAT payers. Moreover, if an organization conducts several types of activities, then it pays VAT on those types that are not subject to a single tax.

VAT defaulters do not submit reports and do not keep accounting records for this tax, do not allocate VAT amounts in settlement documentation, and do not issue invoices to their clients.

In 2014, new VAT benefits were introduced. Thus, from January 1, 2014, the following are exempt from taxation:

sale of pension savings management services;
operations that are carried out as part of clearing activities;
operations on the assignment of rights under obligations that arose on the basis of financial instruments of futures transactions, which are exempt from taxation.

Clause 2 of Art. 143 of the Tax Code establishes organizations that are not recognized as VAT payers:

organizations-international organizers of the XXII Olympic Winter Games and XI Paralympic Winter Games in 2014 in the city of Sochi or foreign partners of the International Olympic Committee, regarding operations that are carried out for the period and within the framework of the XXII Olympic Games and XI Paralympic Games 2014 in the city of Sochi;
official broadcasting companies providing television and radio broadcasting for the period of the XXII Olympic Games and XI Paralympic Games 2014 in Sochi.

It should be noted that these provisions of paragraph 2 of Art. 143 of the Tax Code of the Russian Federation will be valid until 01/01/2017 (clause 6 of article 12 of the Federal Law of July 30, 2010 No. 242-FZ).

Article 143 of the Tax Code of the Russian Federation. Taxpayers (current version)

According to paragraph 4 of paragraph 2 of Article 11 of the Tax Code of the Russian Federation, for tax purposes, individual entrepreneurs include individuals registered in the prescribed manner and carrying out entrepreneurial activities without forming a legal entity, heads of peasant (farm) farms. Individuals carrying out entrepreneurial activities without forming a legal entity, but who have not registered as individual entrepreneurs in violation of the requirements of the civil legislation of the Russian Federation, when performing the duties assigned to them by the Tax Code of the Russian Federation, do not have the right to refer to the fact that they are not individual entrepreneurs.

In accordance with paragraph 1 of Article 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur. Article 2 of the Civil Code of the Russian Federation provides that entrepreneurial activity is an independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.

According to paragraph 4 of Article 23 of the Civil Code of the Russian Federation, a citizen who carries out entrepreneurial activities without forming a legal entity in violation of the requirements of paragraph 1 of Article 23 of the Civil Code of the Russian Federation does not have the right to refer to the transactions concluded by him to the fact that he is not an entrepreneur. The court may apply to such transactions the rules of the Tax Code of the Russian Federation on obligations associated with carrying out business activities.

Thus, an individual carrying out entrepreneurial activities, in the absence of registration as an individual entrepreneur, does not have the right to refer to the fact that he is not an individual entrepreneur.

Official position.

Thus, the letter of the Ministry of Finance of Russia dated December 29, 2014 N 03-11-11/68030 explains that the sale of non-residential premises by individual entrepreneurs recognized as taxpayers of value added tax is subject to taxation with this tax in the generally established manner.

If the non-residential premises were not used for business activities carried out by an individual as an individual entrepreneur, then upon its sale value added tax is not calculated, since, on the basis of Article 143 of the Tax Code of the Russian Federation, individuals when selling goods (works, services) within the framework of non-entrepreneurial activities are not recognized as taxpayers of this tax.

An example from judicial practice.

When carrying out activities outside the framework of entrepreneurial activity by an individual who has the status of an individual entrepreneur, such sales are not subject to VAT. Thus, in the Resolution of January 12, 2010 N F09-5369/09-S2, the Federal Antimonopoly Service of the Ural District supported the conclusion of the appellate court that the status of an individual entrepreneur cannot change the status of real estate belonging to him as an individual, determined by civil law, even if such the property is leased by the owner as an individual entrepreneur.

According to the circumstances of the case, an individual entrepreneur uses his property not only to engage in entrepreneurial activities, but also as personal property necessary for personal needs, therefore his property cannot be delimited.

Consequently, when an individual, although having the status of an individual entrepreneur, sells goods (work, services), but outside the framework of entrepreneurial activity, such sales cannot be recognized as subject to VAT taxation, which corresponds to the position of the financial department, according to which what is sold by an entrepreneur non-residential (residential) premises cannot be classified as fixed assets of an individual entrepreneur, since they are not used directly as means of labor in the process of carrying out business activities.

Let's consider an example from judicial practice, where the court came to the opposite position, based on the case materials, recognizing the entrepreneur as a VAT payer.

Thus, the Resolution of the Seventh Arbitration Court of Appeal dated 06/04/2014 N A67-5694/2013 states that citizens carrying out business activities without state registration as individual entrepreneurs are taxpayers in accordance with the norms of tax legislation. In accordance with the civil legislation of the Russian Federation, entrepreneurial activity includes activities that have the characteristics specified in Article 2 of the Civil Code of the Russian Federation and are carried out by a person who does not have the status of an individual entrepreneur.

The premises leased by an entrepreneur are not intended for use for personal purposes not related to business activities. The purpose of renting out premises was to make a profit.

Based on the provisions of the above norms, organizations and individual entrepreneurs that meet the criteria of Article 11 of the Tax Code of the Russian Federation are VAT payers. However, it should be remembered that not everyone.

Attention!

Here it is necessary to take into account that paragraph 7 of Article 12 of the Tax Code of the Russian Federation determines that the Tax Code of the Russian Federation establishes special tax regimes that may provide for federal taxes not specified in Article 13 of the Tax Code of the Russian Federation, determines the procedure for establishing such taxes, as well as the procedure for the implementation and application of these special tax regimes.

The list of special tax regimes is enshrined in Article 18 of the Tax Code of the Russian Federation. Special tax regimes based on Article 18 of the Tax Code of the Russian Federation include: a taxation system for agricultural producers (single agricultural tax), a simplified taxation system, a taxation system in the form of a single tax on imputed income for certain types of activities, a taxation system for the implementation of production sharing agreements, as well as the patent taxation system (Chapter 26.5 “Patent taxation system” of the Tax Code of the Russian Federation was introduced by Federal Law dated June 25, 2012 N 94-FZ, in turn, a new special tax regime is applied by individual entrepreneurs from January 1, 2013).

According to the second paragraph of paragraph 7 of Article 12 of the Tax Code of the Russian Federation, special tax regimes may provide for exemption from the obligation to pay certain federal, regional and local taxes and fees specified in Articles 13 - 15 of the Tax Code of the Russian Federation.

This provision also applies to the obligation of taxpayers applying a special tax regime to pay VAT, for example:

1) paragraph 3 of Article 346.1 of the Tax Code of the Russian Federation establishes that organizations and individual entrepreneurs who are taxpayers of the unified agricultural tax are not recognized as taxpayers of value added tax (with the exception of value added tax payable in accordance with the Tax Code of the Russian Federation when importing goods into the territory of the Russian Federation). Federation and other territories under its jurisdiction, as well as value added tax paid in accordance with Article 174.1 of the Tax Code of the Russian Federation);

2) paragraph 2 of Article 346.11 of the Tax Code of the Russian Federation establishes that organizations applying the simplified taxation system are not recognized as taxpayers of value added tax, with the exception of value added tax payable in accordance with the Tax Code of the Russian Federation when importing goods into the territory of the Russian Federation and other territories , under its jurisdiction, as well as value added tax paid in accordance with Article 174.1 of the Tax Code of the Russian Federation.

The provisions of paragraph 3 of Article 346.11 of the Tax Code of the Russian Federation contain provisions similar to the above in relation to individual entrepreneurs using a simplified taxation system;

3) paragraph 4 of Article 346.26 of the Tax Code of the Russian Federation provides that organizations and individual entrepreneurs who are taxpayers of the single tax on imputed income are not recognized as taxpayers of value added tax (in relation to transactions recognized as objects of taxation in accordance with Chapter 21 of the Tax Code of the Russian Federation, carried out within the framework of entrepreneurial activity subject to a single tax), with the exception of value added tax payable in accordance with the Tax Code of the Russian Federation when importing goods into the territory of the Russian Federation and other territories under its jurisdiction;

4) paragraph 11 of Article 346.43 of the Tax Code of the Russian Federation provides that individual entrepreneurs applying the patent tax system are not recognized as taxpayers of value added tax, with the exception of value added tax payable in accordance with the Tax Code of the Russian Federation when carrying out types of business activities in respect of which the patent tax system is not applied; when importing goods into the territory of the Russian Federation and other territories under its jurisdiction; when carrying out transactions taxed in accordance with Article 174.1 of the Tax Code of the Russian Federation.

Based on the letter of the Ministry of Finance of Russia dated May 16, 2011 N 03-07-11/126, commission agents (agents), including organizations and individual entrepreneurs using a simplified taxation system that sell goods (works, services) from your name.

In other cases, taxpayers using the simplified taxation system do not have to issue invoices.

This rule can be automatically extended to other special tax regimes.

In a situation where “special regime agents” sell goods (work, services) through an intermediary, he does not calculate value added tax and does not issue invoices. This conclusion follows from the letter of the Ministry of Finance of Russia dated May 31, 2011 N 03-07-11/152, which notes that an agent who sells on its own behalf the services of a principal applying the unified agricultural tax does not calculate value added tax on such services and does not issue corresponding invoices.

Please note that the approach of the official bodies to this issue has not changed today; they adhere to the same position.

Attention!

It should be noted that not only persons applying special tax regimes are not VAT payers. VAT is also not paid by persons exempt from fulfilling the duties of a VAT taxpayer in accordance with Article 145 of the Tax Code of the Russian Federation.

Current problem.

Clause 5 of Article 173 of the Tax Code of the Russian Federation establishes that the amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer highlighting the amount of tax:

1) persons who are not taxpayers, or taxpayers exempt from fulfilling taxpayer obligations related to the calculation and payment of tax;

2) by taxpayers when selling goods (work, services), operations for the sale of which are not subject to taxation.

The Financial Department has repeatedly emphasized that paragraph 5 of Article 173 of the Tax Code of the Russian Federation is the only case when organizations using the simplified taxation system issue invoices highlighting the amount of value added tax and pay it to the budget (see letters from the Ministry of Finance of Russia dated July 18, 2013 N 03-07-11/28306, dated 04/05/2013 N 03-07-11/11247). Similar clarifications have been formulated in relation to the remaining “special regimes” (see, for example, letter of the Federal Tax Service of Russia dated January 17, 2013 N ED-2-3 / [email protected] ).

In letters dated 08/07/2013 N 03-11-11/31784, dated 07/05/2013 N 03-07-14/26067, the Ministry of Finance of Russia draws attention to the fact that when applying this norm in relation to UTII payers, it should be taken into account that, according to paragraph 1 of Article 346.28 Under the Tax Code of the Russian Federation, organizations and individual entrepreneurs switch to paying a single tax on imputed income voluntarily.

Deregistration of this tax by a taxpayer upon termination of business activities subject to single tax on imputed income, transition to another taxation regime, including on the grounds established by subparagraphs 1 and 2 of paragraph 2.2 of Article 346.26 of the Tax Code of the Russian Federation, is carried out on the basis of an application submitted to the tax authority within five days from the date of termination of business activity subject to a single tax on imputed income, or from the date of transition to a different taxation regime, or from the last day of the month of the tax period in which violations of the requirements established by subparagraphs 1 and 2 of paragraph 2.2 were committed Article 346.26 of the Tax Code of the Russian Federation (clause 3 of Article 346.28 of the Tax Code of the Russian Federation).

Thus, the Tax Code of the Russian Federation does not contain such grounds for the loss of the right to apply the taxation system in the form of a single tax on imputed income for certain types of activities, such as the issuance of an invoice by the payer of a single tax on imputed income.

Attention!

Another category of value added tax taxpayers are persons who move goods across the customs border of the Customs Union, determined in accordance with the customs legislation of the Customs Union and the legislation of the Russian Federation on customs affairs.

In accordance with Article 79 of the Customs Code of the Customs Union, payers of customs duties and taxes are the declarant or other persons who, in accordance with the Customs Code of the Customs Union, international treaties of the member states of the Customs Union and (or) the legislation of the member states of the Customs Union, are charged with payment of customs duties and taxes.

According to Article 114 of the Federal Law of November 27, 2010 N 311-FZ “On Customs Regulation in the Russian Federation” (hereinafter referred to as Law N 311-FZ), payers of customs duties and taxes are the declarant or other persons who are responsible for paying customs duties, taxes in accordance with the Customs Code of the Customs Union, international treaties of the member states of the Customs Union and Law N 311-FZ.

Based on Article 186 of the Customs Code of the Customs Union, declarants may be:

1) a person of a member state of the Customs Union:

who has concluded a foreign economic transaction or on whose behalf (on behalf of) this transaction was concluded;

having the right to own, use and (or) dispose of goods - in the absence of a foreign economic transaction;

2) foreign persons:

an individual moving goods for personal use;

a person enjoying customs benefits in accordance with Chapter 45 of the Customs Code;

an organization that has a representative office established on the territory of a member state of the Customs Union in the prescribed manner - when applying for customs procedures for temporary import, re-export, as well as customs procedures for release for domestic consumption only in relation to goods imported for the own needs of such representative offices;

a person who has the right to dispose of goods not within the framework of a transaction, one of the parties to which is a person from a member state of the Customs Union;

3) for the application of the customs procedure for customs transit - the persons specified in subparagraphs 1 and 2 of this article, as well as:

carrier, including customs carrier;

freight forwarder, if he is a person of a member state of the Customs Union.

Current problem.

From the literal interpretation of paragraph 1 of Article 143 of the Tax Code of the Russian Federation it follows that public legal entities are not VAT payers, since they are not named as such.

However, paragraph 1 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 N 33 “On some issues arising in arbitration courts when considering cases related to the collection of value added tax” states that Article 143 of the Tax Code of the Russian Federation does not name public legal entities as value added tax payers.

At the same time, state (municipal) bodies that have the status of a legal entity (state or municipal institutions), by virtue of paragraph 1 of Article 143 of the Tax Code of the Russian Federation, can be tax payers for financial and economic transactions performed by them, if they act in their own interests as independent economic entities subjects, and do not implement the public legal functions of the corresponding public legal entity and do not act on its behalf in civil legal relations in the manner prescribed by Article 125 of the Civil Code of the Russian Federation.

Thus, we see that public legal entities, under certain conditions, also act as VAT taxpayers.

Attention!

The provisions of paragraph 2 of Article 143 of the Tax Code of the Russian Federation in accordance with paragraph 6 of Article 12 of the Federal Law of July 30, 2010 N 242-FZ apply until January 1, 2021.

Paragraph 3 of the commented article was introduced by Federal Law dated 06/07/2013 N 108-FZ “On the preparation and holding in the Russian Federation of the 2021 FIFA World Cup, the 2021 FIFA Confederations Cup and amendments to certain legislative acts of the Russian Federation.”

The need to introduce this norm is due to the holding of the 2021 FIFA World Cup and the 2017 FIFA Confederations Cup.

Official position.

Thus, in the letter of the Ministry of Finance of Russia dated January 22, 2015 N 03-07-07/1643, it is explained that paragraph 3 of Article 143 of the Tax Code of the Russian Federation establishes a preferential tax regime for organizations whose activities are related to the preparation and holding of the 2021 FIFA World Cup in the Russian Federation , FIFA Confederations Cup 2021.

The preferential taxation procedure for these organizations is established by the norms of paragraph 3 of Article 143, subparagraph 13 of paragraph 2 of Article 146 of Chapter 21 “Value Added Tax”, paragraph 4 of Article 246, subparagraph 45 of paragraph 1 of Article 251, paragraph 48.16 of Article 270 of Chapter 25 “Corporate Income Tax” ”, as well as paragraph 1.2 of Article 373 of Chapter 30 “Property Tax of Organizations” of the Tax Code of the Russian Federation. At the same time, these norms do not establish a list of documents confirming the legality of applying preferential taxation procedures.

Thus, the basis for applying a preferential taxation procedure may be documents confirming the status of these organizations, agreements and contracts concluded with FIFA or its authorized persons for the implementation of activities provided for by Federal Law of June 7, 2013 N 108-FZ “On the preparation and holding the 2021 FIFA World Cup, the 2021 FIFA Confederations Cup in the Russian Federation and introducing amendments to certain legislative acts of the Russian Federation,” documents confirming the fact of payment by FIFA or other persons authorized by it for purchased goods (work performed, services provided), and so on.

A similar position was also expressed in the letter of the Ministry of Finance of Russia dated January 15, 2015 N 03-02-07/1/421.

Tax exemption

The Tax Code of Russia has provided for the possibility of exemption from the calculation of value added tax. This requires certain conditions to be met.

Firstly, the amount of revenue for a certain period should not exceed the established limit.

The amount of revenue includes income from both taxable (including at a tax rate of 0 percent) and non-taxable goods.

When calculating the amount of revenue, the following are not taken into account:

income from sales, if the activity carried out in this case is subject to a single tax;
amounts of funds, the list of which is presented in Article 162 of the Tax Code of the Russian Federation;
proceeds from sales free of charge;
operations carried out by the tax agent, guided by Art. 161 Tax Code of the Russian Federation.

Secondly, in order to obtain an exemption from VAT, the payer must not be involved in the sale of excisable products for three consecutive months preceding the start of using the exemption.

Despite all its attractiveness, VAT exemption also has negative aspects - for example, strict restrictions on revenue volumes. That is, using this privilege is beneficial only for those enterprises whose turnover is consistently small.

Who is not recognized as a value added tax taxpayer?

The legislation of the Russian Federation establishes a special procedure and conditions under which individuals cannot be recognized as taxpayers of value added tax. This means that the tax authority does not have the right to demand that these persons fulfill the above tax obligations, since this would be a direct violation of the current tax legislation, even if the object of taxation is present.

Firstly, organizations or individual entrepreneurs whose professional activities are directly related to agricultural production cannot be recognized as eligible taxpayers of the state tax, and these persons are eligible taxpayers of the agricultural tax.

An exception here would be the case when value added tax is associated with the import of certain goods into the territory of the Russian Federation, or other territories located in its direct jurisdiction. In this case, the object of taxation will be expressed in these goods, on which value added tax will be levied.

Secondly, taxpayers who use a simplified taxation .

In this case, an exception will also be made in the case when value added tax is assessed in relation to goods imported into the territory of the Russian Federation or into territories under its direct jurisdiction.

Organizations and individual entrepreneurs whose responsibilities already include paying tax on imputed income for a particular taxable item .

The final category of organizations and individual entrepreneurs that are exempt from paying value added tax will be persons who apply the patent taxation for a particular object .

Author of the article

VAT tax rate in 2014

Today, three tax rates are used in Russia, which began to operate in 2009: 0%, 10% and 18%.

A tax rate of 0 percent is applied to the sale and export of goods, international transportation of goods, in the oil and gas industry, electric power, precious metals, shipbuilding, space activities and a number of transport services (Clause 1 of Article 164 of the Tax Code of the Russian Federation). However, natural gas and oil that are transported to the CIS countries are taxed at a rate of 18 percent. In essence, applying a 0 percent rate is an exemption from VAT.

According to paragraph 2 of Art. 164 of the Tax Code of the Russian Federation, the rate of 10 percent is determined when:

sales of food products (according to a special list);
sales of children's goods (according to a special list);
sales of periodicals and book products, in addition to advertising and erotic ones;
when selling medical products of domestic or imported origin (according to a specific list).

Calculations at a tax rate of 18 percent are applied if the transaction performed does not belong to the lists taxed at a rate of 0 percent or 10 percent.

The procedure for calculating and calculating the tax base

The tax base for VAT is the sum of all profits received from the sale of goods. The following amounts may also be included in the tax base:

advances received. The exception is advances received for goods (work, services), taxed at a rate of 0 percent;
money for goods received as financial assistance;
payments for insurance against the risk of unfulfilled obligations;
interest on a trade loan, bonds, bills (the tax is taken only from a portion of the interest amount, which exceeds the refinancing rate of the Bank of Russia);

The amount that the taxpayer pays to the budget is the difference between the tax received on the sale of material assets and the tax paid on the purchase of goods. In the process of calculating the tax base, it should be remembered that it depends on how much the tax rate is. If different VAT rates are applied when selling goods, then the tax base will be determined separately by type of activity.

Calculating the VAT amount is very simple. To do this, we introduce the following symbols: X - price of the product; A - price including VAT; B — price excluding VAT; C - VAT amount; the tax rate is conventionally 18 percent.

If you need to find out how much a product will cost, including VAT, then use the formula A = X + (X * 0.18) To calculate how much a product will cost without VAT, you need C = A * 18/118 B = A - C As you can see, you can calculate VAT even using a calculator. Recently, special VAT calculators have appeared that automatically carry out calculations; all the user needs to do is enter the initial data.

The Tax Code provides that the payer has the right to reduce the total amount of tax by established deductions. The procedure is such that the amounts that are subject to deduction are those that the taxpayer pays for goods (work, services) purchased by him on the territory of Russia, or for goods paid by him when imported into the customs territory of the Russian state. For an enterprise that is a VAT payer, you can also add to the deduction the amount of tax transferred to suppliers.

To fulfill this condition, it is important that the product was purchased for VAT-taxable transactions, was paid for, and had an invoice. VAT accrued on the sale, which is paid by the seller, is subject to deduction in the event of the return of the goods.

Payment procedure and terms

Based on actual sales over the past period, the VAT payer pays tax to the budget and submits a tax return to the tax authority. The payment deadline is the 20th of every month. When this date coincides with a weekend (holiday), the last deadline will be the first working day after it (that is, the tax period is a calendar month). Value added tax is paid by the taxpayer at the place of actual registration. This procedure is determined by Article 163 and Clause 1 of Article 174 of the Tax Code of the Russian Federation.

From the moment the payer submits a payment order to the bank to pay VAT, the tax is considered paid, and when paying in cash - from the moment the money is deposited at the bank cash desk. If payment is not made on time, the tax authority may charge the organization a penalty.

To calculate the amount that an enterprise pays to the budget, the following calculation is used: Supl = Stotal + Sresto - Svych Supl - amount to be paid; Stotal — tax amount; Svych - the amount of tax deduction; Srestor - the restored tax amount; It should be noted that if the sale of goods was made in foreign currency on the territory of the Russian state, then the taxpayer pays VAT in the same currency.

This payment procedure does not apply to enterprises whose sales revenue does not exceed one million rubles during the quarter. The tax period for such organizations is one quarter.

As for the tax return, the rules for filing it in 2014 have changed somewhat. Thus, Federal Law No. 134-FZ dated June 28, 2013 amended Art. 80 of the Tax Code and in paragraph 5 of Art. 174 of the Tax Code of the Russian Federation “Procedure and deadlines for paying taxes to the budget”, according to which tax reporting in 2014 will be submitted via e-mail.

3. Taxpayers. Fulfillment of VAT payer duties by persons exempt from paying it

In accordance with Art. 143 of the Tax Code of the Russian Federation, VAT payers are organizations, individual entrepreneurs, as well as persons recognized as payers of this tax in connection with the movement of goods across the customs border of the Russian Federation, determined in accordance with the Customs Code of the Russian Federation (TC RF).

It follows from this that organizations and individual entrepreneurs that meet the criteria of Art. 11 of the Tax Code of the Russian Federation, which establishes the definition of such persons, are VAT payers. However, that's not all.

Firstly, paragraph 1 of Art. 145 of the Tax Code of the Russian Federation stipulates that organizations and individual entrepreneurs have the right to be exempt from fulfilling taxpayer obligations related to the calculation and payment of VAT (unless otherwise provided by other provisions of this article of the Code), if for the three previous consecutive calendar months the amount of revenue from the sale of goods ( works, services) of these organizations or individual entrepreneurs excluding VAT did not exceed a total of 2 million rubles.

Secondly, according to the second paragraph of clause 7 of Art. 12 of the Tax Code of the Russian Federation, special tax regimes established by the Code may provide for exemption from the obligation to pay certain federal, regional and local taxes and fees specified in Art. 13-15 Tax Code of the Russian Federation.

This provision also applies to the obligation of taxpayers applying a special tax regime to pay VAT.

note

: clause 8, 13 art. 1 of Law No. 85-FZ in Art. 346.1 and 346.11 of the Tax Code of the Russian Federation, changes have been made regarding taxpayers applying special tax regimes in the form of a single agricultural tax and a simplified taxation system and who are parties to a simple partnership agreement (joint activity agreement) or a property trust management agreement. These changes establish that the above taxpayers must fulfill their obligations to pay VAT on transactions carried out under the above agreements in cases where, in accordance with Art. 174.1 of the Tax Code of the Russian Federation is charged with maintaining general accounting of transactions subject to VAT in accordance with Art. 146 of this Code.

As stated in Art. 174.1 of the Tax Code of the Russian Federation, for the purposes of Chapter 21 of the Code, maintaining general records of transactions subject to taxation in accordance with Art. 146 of the Tax Code of the Russian Federation, is entrusted to the participant of the partnership, which is a Russian organization or an individual entrepreneur.

When performing transactions in accordance with a simple partnership agreement (agreement on joint activities), the above-mentioned partner of the partnership is assigned the duties of a VAT payer.

The above changes came into force on January 1, 2008.

note

: as a general rule, persons applying special tax regimes, as well as persons exempt from performing the duties of a VAT payer in accordance with Art. 145 of the Tax Code of the Russian Federation are not payers of this tax. However, as law enforcement practice shows, not everything is so simple.

Current problem

. Clause 5 of Art. 173 of the Tax Code of the Russian Federation establishes that the amount of VAT payable to the budget is calculated by the following persons if they issue an invoice to the buyer highlighting the amount of VAT:

– persons who are not taxpayers or taxpayers exempt from fulfilling taxpayer obligations related to the calculation and payment of VAT;

– taxpayers when selling goods (works, services), operations for the sale of which are not subject to taxation.

In practice, it may happen that a taxpayer exempt from VAT (for example, using a simplified taxation system) issues an invoice to customers when selling goods (services, works). By virtue of clause 5 of Art. 173 of the Tax Code of the Russian Federation, if persons exempt from paying VAT issue invoices with the amount of this tax allocated in them, they are required to pay the tax.

But disputes often arise between taxpayers and tax authorities regarding the application of the provisions of paragraph 5 of Art. 173 Tax Code of the Russian Federation. Let us consider this situation in more detail in relation to taxpayers using a simplified taxation system and a taxation system in the form of a single tax on imputed income for certain types of activities.

With these and subsequent references in this publication to the official position, we draw readers' attention to the following.

According to the Explanations on the application of the Rules for the preparation of normative legal acts of federal executive bodies and their state registration, approved by Order of the Ministry of Justice of Russia dated May 4, 2007 No. 88, a normative legal act is a written official document adopted (issued) in a certain form by a law-making body within its boundaries competence and aimed at establishing, changing or repealing legal norms. A legal norm is usually understood as a generally binding state regulation of a permanent or temporary nature, designed for repeated use. These definitions of a normative legal act and a legal norm contained in the Resolution of the State Duma of the Federal Assembly of the Russian Federation dated November 11, 1996 No. 781-II GD “On appeal to the Constitutional Court of the Russian Federation” are recommended by the Ministry of Justice of Russia to be used in the preparation of normative legal acts.

In accordance with clause 2 of the Rules for the preparation of normative legal acts of federal executive bodies and their state registration, approved by Decree of the Government of the Russian Federation of August 13, 1997 No. 1009, the publication of normative legal acts in the form of letters and telegrams is not allowed.

According to clause 10 of Decree of the President of the Russian Federation dated May 23, 1996 No. 763 “On the procedure for publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and normative legal acts of federal executive bodies,” a normative legal act of a federal executive body that has not passed the state registration does not entail legal consequences as it has not entered into force and cannot serve as a basis for regulating relevant legal relations.

A letter is not a normative legal act, therefore, it cannot have legal significance and give rise to legal consequences for an indefinite number of persons, and therefore the concept of a “valid” letter is very conditional.

Another thing is that courts in some cases recognize letters as equal to normative legal acts, and also recognize some of them as invalid. From this point of view, all letters below have been verified and are “valid”.

Official position

. According to the Russian Ministry of Finance, expressed in letter No. 03-11-04/2/33 dated February 10, 2006, taxpayers using the simplified taxation system do not have the obligation provided for in Art. 169 of the Tax Code of the Russian Federation, present invoices to buyers. Consequently, organizations that apply the simplified taxation system, when carrying out operations for the sale of goods (works, services) in the settlement and primary accounting documents issued to buyers, do not allocate the amount of VAT and do not issue invoices.

The letter of the Ministry of Finance of Russia dated May 13, 2005 No. 03-06-05-04/124 states that organizations and individual entrepreneurs applying the taxation system in the form of a single tax on imputed income, invoices when they carry out business activities taxed by this tax is not billed.

According to the letter of the Ministry of Finance of Russia dated February 10, 2006 No. 03-11-04/2/33 in accordance with clause 5 of Art. 173 of the Tax Code of the Russian Federation, in the event that a taxpayer applying the simplified taxation system issues an invoice to the buyer of goods with the allocation of the amount of VAT, the entire amount of tax indicated in this invoice is subject to payment to the budget.

Such conclusions are confirmed by the Ministry of Finance of Russia in letter dated March 23, 2007 No. 03-07-11/68.

The tax authorities take a similar position on this issue: if persons who are not VAT payers issue an invoice to the buyer with the allocation of the amount of this tax, the amount of VAT indicated in the invoice is subject to payment to the budget in accordance with subclause 1 of clause 5 of Art. 173 of the Tax Code of the Russian Federation (letter of the Federal Tax Service of Russia for Moscow dated July 8, 2005 No. 19-11/48885).

Consequently, taking into account the position of the Ministry of Finance of Russia and the tax authorities on this issue, taxpayers using the simplified taxation system, in the case of issuing an invoice with an allocated amount of VAT without subsequent payment of this tax to the budget, are subject to liability in accordance with Art. 122 of the Tax Code of the Russian Federation.

However, in judicial practice there is no uniform position on this issue.

Arbitrage practice

. According to some courts, when applying Art. 122 of the Tax Code of the Russian Federation, courts should proceed from the fact that the person involved has taxpayer status.

In the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 30, 2006 No. A17-1793/5-2006, the court came to the conclusion that the taxpayer who applied the simplified taxation system was not a VAT payer, that is, the above tax amount was not his debt in the meaning given to Art. 11, 44 and 45 of the Tax Code of the Russian Federation.

Considering that on the basis of Art. 122 of the Tax Code of the Russian Federation, only taxpayers can be brought to tax liability, and the Code does not establish liability for non-payment of tax received illegally and not transferred to the budget; the court refused to satisfy the tax authority’s request to collect a fine in such a situation.

In the resolution of November 17, 2006 No. A29-13970/2005A, the FAS of the Volga-Vyatka District also indicated that the taxpayer, who was not a VAT payer, was unlawfully brought to tax liability in accordance with clause 1 of Art. 122 of the Tax Code of the Russian Federation. In addition, the court noted that the taxpayer was wrongfully charged penalties.

Similar conclusions were also made in the resolutions of the Federal Antimonopoly Service of the West Siberian District dated December 20, 2006 No. F04-7765/2006 (28634-A46-34), dated December 12, 2006 No. F04-8300/2006 (29053-A27-27), dated November 20. 2006 No. F04-7742/2006(28606-A27-6), dated October 16, 2006 No. F04-6585/2006(27194-A45-6), No. F04-4198/2006(27208-A27-31), dated 29.08. 2006 No. F04-5400/2006(26554-A75-27), Federal Antimonopoly Service of the Ural District dated 09/26/2006 No. F09-8563/06-S2, dated 09/19/2006 No. F09-8329/06-S2, dated 08/16/2006 No. F09 -7010/06-C2.

In addition, the courts note that taxpayers using the simplified taxation system only have the obligation to transfer the VAT that was unlawfully allocated in the invoice and received from the buyer, which is provided for in subparagraph 1 of paragraph 5 of Art. 173 of the Tax Code of the Russian Federation [1].

However, on the issue of bringing a taxpayer applying the simplified taxation system to liability in accordance with Art. 122 of the Tax Code of the Russian Federation for non-payment to the budget of VAT amounts received from buyers of goods (works, services) in the event that such a taxpayer issues an invoice; in judicial practice, there is an opposite position.

Non-payment or incomplete payment of tax amounts in accordance with clause 42 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02/28/2001 No. 5 “On some issues of application of part one of the Tax Code of the Russian Federation” means that the taxpayer has a debt to the relevant budget (extra-budgetary fund) for the payment of a specific tax as a result of acts (actions or inactions).

Guided by this position of the Plenum of the Supreme Arbitration Court of the Russian Federation and taking into account that, on the basis of invoices issued by the taxpayer, the buyer has the right to present the amounts of VAT paid to him for deduction from the budget and it is assumed that the supplier transferred the received tax to the budget, the courts come to the conclusion that the taxpayer has, applying a simplified taxation system, in the case of issuing an invoice, the obligation to transfer VAT to the budget. Consequently, according to the courts, holding such a taxpayer liable in accordance with paragraph 1 of Art. 122 of the Tax Code of the Russian Federation in the presence of guilt is justified.

Thus, in the resolution of the Federal Antimonopoly Service of the East Siberian District dated November 8, 2006 No. A33-11936/06-Ф02-5948/06-С1, it was noted that the taxpayer had an obligation to pay VAT, the failure of which entailed liability under Art. 122 of the Tax Code of the Russian Federation. According to the court, unlawful inaction, expressed in non-calculation and non-payment of the amount of VAT in the presence of a corresponding obligation, resulted in the taxpayer underestimating the tax base for VAT. Thus, the court recognized as lawful the decision of the tax authority to bring the taxpayer in the above situation to tax liability provided for in paragraph 1 of Art. 122 of the Tax Code of the Russian Federation.

Such conclusions were also made in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated August 16, 2005 No. Ф08-3678/2005-1486А.

Obviously, all of the above can be applied to the situation in which a taxpayer applying the taxation system in the form of a single tax on imputed income issues an invoice.

Current problem

. If a taxpayer exempt from VAT issues an invoice, but does not pay the corresponding amounts of VAT to the budget, there is a high probability that during tax control activities the tax authorities will charge the taxpayer a penalty for late payment of VAT. In this case, judicial practice is usually on the side of the taxpayer.

Arbitrage practice

. According to the courts, a person who is not a VAT payer has the obligation to transfer to the budget the VAT allocated in the invoice and received from the buyer, but penalties for late payment are not subject to accrual.

The resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 15, 2006 No. A17-6893/5-2005 states that the norms of Chapter 21 of the Tax Code of the Russian Federation do not contain provisions according to which a person who is not a taxpayer, but who has received the VAT amount from buyers of their own products, acquires the status taxpayer. He only has the obligation to transfer the received tax amount to the budget.

Based on the analysis of the provisions of Art. 75 of the Tax Code of the Russian Federation, the court came to the conclusion that the obligation to pay penalties also arises only for persons who are taxpayers, payers of fees or tax agents.

The court found that during the period audited by the tax authority, the taxpayer paid a single tax on imputed income for activities related to the provision of transport services; therefore, he was not a VAT payer. However, the obligation to pay VAT arose for the taxpayer in connection with the issuance of invoices in which this tax was wrongfully allocated.

Taking into account the above, the court concluded that the taxpayer should not have paid penalties and refused to satisfy this part of the tax authority’s demands.

Similar conclusions are also given in the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated March 1, 2007 No. A17-5398/5-3-2005, 2052/5-2006.

Current problem

. The emergence of a risk of being brought to tax liability in accordance with Art. 122 of the Tax Code of the Russian Federation and the additional accrual of penalties for a taxpayer who is exempt from paying VAT, but has issued an invoice with the allocated amount of tax, the problems of such a taxpayer do not end there.

In arbitration practice, tax disputes arise on the issue of the legality of holding a taxpayer liable in accordance with Art. 119 of the Tax Code of the Russian Federation for failure to submit a VAT return within the prescribed period in such a situation.

For example, according to the tax authorities, taxpayers applying the simplified taxation system, on the basis of clause 5 of Art. 173 and 174 of the Tax Code of the Russian Federation are required to submit a VAT return to the tax authorities at the place of their registration no later than the 20th day of the month following the expired tax period, in the case of issuing an invoice to buyers with the allocation of VAT amounts (see letter from the Department of Tax Administration Russia in Moscow dated November 14, 2003 No. 21-09/64172).

In case of failure to fulfill the above obligation, the taxpayer may be held, in the opinion of the tax authorities, to tax liability in accordance with Art. 119 of the Tax Code of the Russian Federation. However, courts, as a rule, reject such arguments of the tax authorities as contradicting the provisions of Art. 119 of the Tax Code of the Russian Federation and indicate that a taxpayer applying the simplified taxation system does not fall under the concept of taxpayers (tax agents) given in paragraph 5 of Art. 173 of the Code, therefore he does not have the obligation to submit to the tax authorities at the place of his registration the corresponding VAT tax return, as provided for in paragraph 5 of Art. 174 Tax Code of the Russian Federation. Such conclusions were expressed by the Federal Antimonopoly Service of the Far Eastern District in resolutions dated November 29, 2006, November 22, 2006 No. F03-A80/06-2/4257, dated November 22, 2006, November 15, 2006 No. F03-A80/06-2/4265.

A similar position is taken by the courts in decisions of the Federal Antimonopoly Service of the Northwestern District dated December 18, 2006 No. A26-2012/2006-211, the Volga District Federal Antimonopoly Service dated September 7, 2006 No. A12-4687/2006, and the East Siberian District Federal Antimonopoly Service dated June 2, 2006 No. A74- 28/06-F02-2554/06-S1 and FAS of the Ural District dated 10/02/2006 No. F09-8654/06-S1, dated 09/26/2006 No. F09-8563/06-S2, dated 08/16/2006 No. F09-7010/ 06-S2.

Current problem

. In practice, tax disputes arise between taxpayers and tax authorities on the issue of whether a taxpayer exempt from VAT is subject to liability in accordance with paragraph 1 of Art. 126 of the Tax Code of the Russian Federation, if, during tax control activities, he did not comply with the tax authority’s requirement to submit VAT documents in the event of issuing an invoice to buyers during the period checked by the tax authority.

The position of the courts on this issue is that if the taxpayer is not a VAT payer (or a tax agent), then he does not have the obligation to submit the relevant documents to the tax authority. Such conclusions were made in the resolutions of the FAS of the East Siberian District dated October 31, 2006 No. A19-12626/06-24-F02-5663/06-S1 and the FAS Volga-Vyatka District dated August 7, 2006 No. A17-6892/5-2005.

Table of contents