The benefit established by paragraph 12 of paragraph 2 of Art. 146 of the Tax Code of the Russian Federation applies to enterprises that meet the criteria for small and medium-sized enterprises; redemption must take place in the manner prescribed by the Federal Law of July 22, 2008 No. 159 - FZ; ownership of the property to be redeemed must be acquired after April 1, 2011.
In all other cases, when buying out property from the treasury, organizations are recognized as tax agents.
The rationale for this position is given below in the materials of the System Glavbukh.
Regardless of which taxation system the organization applies, in the cases provided for by tax code Russian Federation, it is recognized as a tax agent for VAT *. Organizations that are exempt from paying VAT under the Tax Code of the Russian Federation must also perform the duties of tax agents (clause 2, article 161 of the Tax Code of the Russian Federation).
Organization Recognition tax agent
An organization is recognized as a tax agent for VAT:
O.F. Tsibizova
head of the department's indirect taxes
tax and customs tariff policy of the Ministry of Finance of Russia
2. Article:What are the rules for paying VAT on the lease and purchase of state property
What to do with VAT when buying state property
With the redemption of state and municipal property, the situation is as follows. If things are not assigned to various types of state unitary enterprises, municipal unitary enterprises and institutions and constitute the treasury of Russia or regions and municipalities, then the buyer is recognized as a tax agent for VAT.*
The tax base is defined as the amount of income from the sale (transfer) of this property, taking into account indirect tax. The tax agent calculates, deducts from the paid income and transfers the appropriate amount of VAT to the budget. These are General requirements given in paragraph 3 of Article 161 of the Tax Code of the Russian Federation.
Learn more about how VAT tax agents fill out a VAT return this tax, read the article "How to fill out a VAT return if your company is a tax agent" (published in the Glavbukh magazine No. 6, 2011).
However, recently, namely from April 1 of this year, there is one exception to this rule. If state-owned property is redeemed by a small or medium-sized enterprise, then it is not recognized as a tax agent. After all, this operation is simply not subject to VAT in accordance with subparagraph 12 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation. *
However, not everyone will be able to take advantage of this benefit and not always. It is important to be aware of the existing restrictions.*
Firstly, the company must meet the criteria for small and medium-sized enterprises * provided for in Article 4 of the Federal Law of July 24, 2007 No. 209 - FZ.
In particular, an enterprise is recognized as small if its sales revenue for 2010, excluding VAT, does not exceed 400 million rubles, and the average number for the same period does not reach 100 people. As for medium-sized enterprises, their maximum revenue for 2010 is 1 billion rubles, and the headcount limit is 250 people.
Secondly, the redemption must take place in the manner prescribed by the Federal Law of July 22, 2008 No. 159 - FZ. * That is, the concession is valid only for the sale (including privatization) of real estate that the company previously rented.
Thirdly, the benefit is not applicable if the ownership of the purchased property was transferred to the company before April 1, 2011. * That is, until the day when subparagraph 12 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation began to operate. The fact is that the Federal Law of December 28, 2010 No. 395 - FZ, which has been amended accordingly, has no retroactive effect.
Moreover, your company will be considered a tax agent for VAT, even if it has bought state-owned real estate in installments and continues to pay during 2011 (or longer). And the ownership of the object was transferred in the first quarter of this year. This is stated in the letter of the Ministry of Finance of Russia dated May 12, 2011 No. 03 - 07 - 07/25.
Finally, we note that VAT is transferred to the budget when buying out property according to the same rules as in the case of renting. That is, in equal shares within three months after the quarter when the valuables were paid (see.
77 city Moscow
Publication date: 12/15/2017
Question: On the procedure for applying subparagraph 4.1 of paragraph 2 of Article 146 and paragraph 3 of Article 161 of the Tax Code Russian Federation
Answer:
The Federal Tax Service in connection with numerous appeals of territorial tax authorities and taxpayers on the issue of payment of value added tax (hereinafter referred to as VAT) when state institutions provide services for the lease of state (municipal) property, informs the following.
According to subparagraph 4.1 of paragraph 2 of article 146 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), operations for the provision of services by state institutions are not recognized as an object of taxation by value added tax.
Based on Article 123.22 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), a state institution is a state (municipal) institution.
By virtue of the provisions of articles 214, 215 and 296 of the Civil Code, property is assigned to state (municipal) institutions on the basis of the right of operational management.
In view of the above, when state institutions provide services for the lease of state (municipal) property assigned to state institutions (including state authorities and administrations, as well as local governments) on the basis of the right of operational management, the object of VAT taxation does not arise. In this regard, tenants of such property do not pay VAT as a tax agent.
In accordance with paragraph 3 of Article 161 of the Code, when federal property, property of constituent entities of the Russian Federation and municipal property are provided on the territory of the Russian Federation by state authorities and local governments, the tax base for VAT is defined as the amount rent subject to tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, tenants of the said property are recognized as tax agents. These persons are obliged to calculate, withhold from the income paid to the lessor, and pay to the budget the appropriate amount of tax.
In accordance with Article 214 of the Civil Code state property in the Russian Federation is property owned by the right of ownership of the Russian Federation (federal property), and property owned by the right of ownership of the constituent entities of the Russian Federation - republics, territories, regions, cities of federal significance, autonomous regions, autonomous districts (property of the subject
Russian Federation).
The funds of the relevant budget and other state property not assigned to state enterprises and institutions constitute the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district.
According to Article 215 of the Civil Code, property owned by urban and rural settlements, as well as other municipalities, is municipal property.
Funds local budget and other municipal property not assigned to municipal enterprises and institutions constitute the municipal treasury of the corresponding city, rural settlement or another municipality.
Taking into account the above, when state (municipal) property, not assigned to state (municipal) enterprises and institutions, constituting the state (municipal) treasury, is provided by state authorities and local governments for rent, the obligation to calculate and pay VAT rests with the tenant, being a tax agent.
A similar conclusion follows from the Definitions Supreme Court of the Russian Federation dated November 15, 2017 No. 309-KG17-16472, dated September 27, 2017 No. 301-KG17-13104, dated March 26, 2015 No. 310-KG15-1150.
This position has been agreed with the Russian Ministry of Finance.
Bring this letter to lower tax authorities and taxpayers.
Acting State Councilor
Russian Federation 3rd class
D.S. satin
Report non-compliance with this recommendation by the tax authority
The Federal Tax Service draws the attention of users of the reference database to the fact that the information you send about cases of non-compliance by the tax authorities with the explanations of the Federal Tax Service of Russia is not:
This information will be used by the Federal tax service in order to improve the quality of tax administration and work with taxpayers.
In accordance with paragraphs. 4.1 p. 2 art. 146 of the Tax Code of the Russian Federation, for the purpose of calculating VAT, the performance of works (rendering of services) by state institutions, as well as budgetary and autonomous institutions within the framework of the state (municipal) assignment, is not recognized as an object of taxation, source financial support which is a subsidy from the relevant budget budget system RF.
The specified subparagraph was introduced by Federal Law No. 239-FZ of July 18, 2011 "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with the Improvement of the Legal Status of Autonomous Institutions" and was initially applied to works (services) that were performed (rendered) starting from January 1 2012 (clause 1, article 2, part 2, article 6 of the Federal Law of July 18, 2011 N 239-FZ). However, according to Art. 3 of the Federal Law of 05.04.2013 N 39-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Article 4 of the Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation in Connection with Improving the Principles of Determining Prices for Taxation Purposes" the effect of this rule is extended for legal relations that arose from January 1, 2011.
In accordance with the legislation of the Russian Federation, public institutions can be created solely for the purpose of providing state (municipal) services, performing work and (or) performing state (municipal) functions to ensure the implementation of the powers of state authorities (state bodies) or local governments provided for by the legislation of the Russian Federation . According to paragraphs 2 and 3 of Art. 161 of the Budget Code of the Russian Federation, financial support for the activities of a public institution is carried out at the expense of the corresponding budget of the budgetary system of the Russian Federation and on the basis of a budget estimate. A government institution may carry out income-generating activities only if such a right is provided for in its constituent document, and the income received from this activity goes to the appropriate budget of the budget system of the Russian Federation.
A budgetary institution is a non-profit organization established by the Russian Federation, a constituent entity of the Russian Federation or a municipality to perform work, provide services in order to ensure the implementation of the powers provided for by the legislation of the Russian Federation, respectively, of state authorities (state bodies) or local governments in the field of science, education, healthcare, culture, social protection, employment of the population, physical culture and sports, as well as in other areas. A budgetary institution has the right to carry out income-generating activities only to achieve the goals of its creation and in accordance with these goals, provided that such activities are indicated in its constituent documents. The income received from the said activities and the property acquired at the expense of these incomes shall be placed at the independent disposal of the budgetary institution.
An autonomous institution is a non-profit organization created by the Russian Federation, a constituent entity of the Russian Federation or a municipality to perform work, provide services in order to exercise the powers of state authorities provided for by the legislation of the Russian Federation, the powers of local governments in the field of science, education, healthcare, culture, social protection, employment of the population , physical culture and sports, as well as in other areas in cases established by federal laws. An autonomous institution has the right to carry out income-generating activities only to achieve the goals of its creation and in accordance with these goals, provided that such activities are indicated in its constituent documents. The income received from the said activities and the property acquired at the expense of these incomes shall be placed at the independent disposal of the autonomous institution.
Thus, a state (municipal) institution can be classified as a certain type based on the possibility of the specified institution to perform state (municipal) functions in order to exercise the powers of state authorities and local governments provided for by the legislation of the Russian Federation.
For the performance of state (municipal) functions, only a state institution may be created, with the exception of cases expressly established by federal laws.
An autonomous institution and a budgetary institution are created by a public legal entity (subject of the Russian Federation, municipality) to perform state (municipal) work, provide state (municipal) services and are not entitled to perform state (municipal) functions, except for cases expressly established by federal laws.
A state (municipal) institution can be assigned to a certain type based on the field of activity in which it is created.
An autonomous institution may be created in the field of science, education, healthcare, culture, social protection, employment, physical culture and sports, as well as in other areas in cases established by federal laws. For example, in accordance with Urban Planning Code Autonomous institutions of the Russian Federation may be created to conduct state expertise project documentation and results of engineering surveys.
Areas of activity budget institutions are not limited. The Federal Law marks the priority areas in which budgetary institutions are created - science, education, health care, culture, social protection, employment, physical culture and sports, and at the same time provides the opportunity to create budgetary institutions in other areas without restrictions.
The scope of activity of a state institution is not limited by the Federal Law. Taking into account the peculiarities of the legal status of state-owned institutions, it is advisable to classify as state-owned institutions only institutions established in the field of management activities, or institutions classified as state-owned in accordance with the law.
In addition, Art. 6 of the Budget Code of the Russian Federation, it is determined that a state (municipal) task is a document that establishes requirements for the composition, quality and (or) volume (content), conditions, procedure and results of the provision of state (municipal) services (performance of work).
In accordance with par. 2 p. 3 art. 69.2 of the Budget Code of the Russian Federation, the state (municipal) assignment is formed for budgetary and autonomous institutions, as well as government institutions, determined in accordance with the decision of the state authority ( government agency), a local self-government body exercising the budgetary powers of the main manager of budgetary funds.
From paragraph 2 of Art. 69.2 of the Budget Code of the Russian Federation it follows that in order to fulfill the state (municipal task) by budgetary or autonomous institutions, the amount of the subsidy is determined by the indicators of this task, and for the fulfillment of the state (municipal) task by state institutions, a budget estimate is drawn up.
Thus, in accordance with paragraphs. 4.1 p. 2 art. 146 of the Tax Code of the Russian Federation, for the purpose of calculating VAT, the performance of work (rendering of services) by budgetary and autonomous institutions within the framework of the state (municipal) task is not recognized as an object of taxation, provided that the source of financial support for the state (municipal) task is a subsidy from the corresponding budget of the budget system of the Russian Federation. From 01.01.2011, work performed by a public institution (rendered services) are not subject to value added tax taxation without any conditions.
It should be noted that the provisions of par. 4.1 p. 2 art. 146 of the Tax Code of the Russian Federation do not apply when selling goods, including those of own production, and when selling state (municipal) property. In this case, VAT is taxed in the general manner.
With regard to filling in tax returns for VAT, by Order of the Ministry of Finance of Russia dated October 15, 2009 N 104n "On approval of the form tax return on Value Added Tax and the Procedure for Completing It" provides that transactions that are not recognized as an object of VAT taxation are subject to reflection in section 7 of the VAT tax return. The cost of such operations must be indicated in column 2 on line 010 of section 7 of the VAT tax return.
At the same time, in column 1 on line 010 of section 7 of the declaration, the transaction codes are reflected in accordance with Appendix No. 1 to the Procedure for filling out a VAT tax return. At the same time, Appendix No. 1 to the Procedure for filling out a VAT tax return (in the current version) does not yet provide for an operation code for the norm of subparagraph 4.1 of paragraph 2 of Art. 146 of the Tax Code of the Russian Federation.
The Ministry of Finance of the Russian Federation in a letter dated November 21, 2011 No. ED-4-3 / [email protected]"On the procedure for filling out a VAT tax return" reported that before the relevant changes are made, taxpayers have the right to reflect the operations provided for in paragraphs. 4.1 p. 2 art. 146 of the Tax Code of the Russian Federation - under the code 1010816.
1. In the production of excisable goods, the following shall be recognized as payers:
1.1. organizations and individual entrepreneurs, carrying out the production of excisable goods from any type of raw materials (tolling or own) and (or) using excisable goods.
The production of excisable goods also includes:
bottling of excisable alcoholic products and beer, carried out as part of the overall production process of these excisable goods in accordance with the requirements of state standards and (or) other technical legal acts that regulate the production process of these excisable goods and approved in the manner prescribed by law;
any kind of mixing of goods (including the infusion of alcoholic products) in the places of their storage and sale (with the exception of alcoholic products sold at retail prices, produced by mixing and (or) infusion of alcoholic products by organizations, individual entrepreneurs engaged in catering), which results in excisable goods;
1.2. legal entities Republic of Belarus, carrying out contract manufacturing of tobacco products.
2. When importing excisable goods into the territory of the Republic of Belarus under commission agreements, commission agreements and other similar civil law agreements, organizations and individual entrepreneurs importing excisable goods are recognized as payers.
3. When selling excisable goods imported into the territory of the Republic of Belarus under commission agreements, commission agreements and other similar civil law contracts, organizations and individual entrepreneurs entrusted with the sale of excisable goods are recognized as payers.
4. When selling (transferring) liquefied hydrocarbon gas and compressed natural fuel gas for refueling vehicles (including own vehicles) through gas stations, as well as using fuel-dispensing equipment, organizations and individual entrepreneurs that carry out such sale (transfer) are recognized as payers.
5. In case of use (sale, transfer) of diesel fuel purchased (received) for the production of diesel fuel with fatty acid methyl esters for other purposes, organizations and individual entrepreneurs that allowed such improper use (sale, transfer) are recognized as payers.
6. Legal entities of the Republic of Belarus are recognized as payers when using (realizing, transferring) not for their intended purpose:
raw ethyl alcohol from food raw materials purchased (received) for the production of rectified ethyl alcohol;
rectified ethyl alcohol from food raw materials purchased (received) for the production of alcoholic products, vinegar and low-alcohol drinks;
alcohol purchased (received) for the production of medicines, veterinary drugs;
2. For the purposes of this chapter, the following shall not be recognized as an object of taxation:
2) transfer free of charge residential buildings, kindergartens, clubs, sanatoriums and other social, cultural, housing and communal facilities, roads, electrical networks, substations, gas networks, water intake facilities and other similar facilities to state authorities and local governments (or by decision of these authorities, to specialized organizations that use or operate these facilities for their intended purpose), as well as the transfer on a gratuitous basis of objects of socio-cultural appointments to the treasury of a republic within the Russian Federation, to the treasury of a territory, region, federal city, autonomous region, autonomous district, to the municipal treasury of the corresponding urban, rural settlement or other municipal formation;
3) transfer of property of state and municipal enterprises, redeemed in the order of privatization;
4) performance of works (rendering of services) by bodies that are part of the system of state authorities and local governments, within the framework of exercising their exclusive powers in a certain field of activity, if the obligation to perform the specified works (rendering of services) is established by the legislation of the Russian Federation, legislation of the constituent entities of the Russian Federation, acts of local governments;
5) transfer on a gratuitous basis, the provision of transfer services to free use objects of fixed assets to state authorities and administrations and local governments, as well as state and municipal institutions, state and municipal unitary enterprises;
6) sales operations land plots(shares in them);
7) transfer of property rights of the organization to its successor (successors);
8) transmission Money or real estate for the formation or replenishment of the target capital non-profit organization in the manner prescribed by federal law
8.1) the transfer of real estate in the event of the dissolution of the endowment of the non-profit organization, the cancellation of the donation, or in any other case, if the return of such property transferred to replenish the endowment of the non-profit organization is provided for by the donation agreement and (or) Federal Law of December 30, 2006 N 275- Federal Law "On the procedure for the formation and use of the target capital of non-profit organizations". The norm of this subparagraph shall apply when such property is transferred by a non-profit organization - the owner of the endowment capital to the donor, his heirs (successors) or another non-profit organization in accordance with Federal Law No. 275-FZ of December 30, 2006 "On the procedure for the formation and use of the endowment capital of non-profit organizations" ;
9.3) transfer to the ownership on a gratuitous basis to educational and scientific non-profit organizations for the implementation of statutory activities state property, not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipality;
Federal Law No. 281-FZ of November 25, 2009 supplemented paragraph 2 of Article 146 of this Code with subparagraph 10, which shall enter into force on January 1, 2010, but not earlier than one month after the official publication of the said Federal Law
10) the provision of services for the transfer for gratuitous use to non-profit organizations for the implementation of the statutory activities of state property that is not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region , an autonomous district, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal formation;
11) performance of work (provision of services) as part of additional measures aimed at reducing tension in the labor market of the constituent entities of the Russian Federation, implemented in accordance with decisions of the Government of the Russian Federation;
12) operations for the sale (transfer) on the territory of the Russian Federation of state or municipal property not assigned to state enterprises and institutions and constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous okrug, as well as municipal property not assigned to municipal enterprises and institutions and constituting the municipal treasury of the corresponding urban, rural settlement or other municipal formation, redeemed in the manner established by Federal Law No. property in state or municipal ownership and leased by small and medium-sized businesses, and on amendments to certain legislative acts of the Russian Federation";
13) related to the implementation of measures provided for by the Federal Law "On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup, the 2020 UEFA European Football Championship and amending certain legislative acts of the Russian Federation", transactions for the sale of goods (works, services) and property rights by the Organizing Committee "Russia-2018", subsidiaries of the Organizing Committee "Russia-2018", the Russian Football Union, producers of FIFA media information and suppliers of goods (works, services) FIFA, determined by the specified Federal law and being Russian organizations, as well as related to the implementation of activities for the preparation and holding of the UEFA European Football Championship 2020 in the Russian Federation, provided for by the said Federal Law, operations for the sale of goods (works, services) and property rights by the Russian Football Union and the local organizational structure, commercial partners of UEFA , suppliers of goods (works, services) of UEFA and broadcasters of UEFA, determined by the said Federal Law, in the period up to December 31, 2020 inclusive.
Federal Law No. 78-FZ of April 20, 2014 supplemented Item 2 of Article 146 of this Code with Sub-Clause 14, which applies to legal relations arising from the day Federal Law No. 39-FZ of April 2, 2014 came into force
14) implementation by an autonomous non-profit organization established in accordance with the Federal Law "On the Protection of Interests individuals having deposits in banks and separate structural divisions banks registered and (or) operating on the territory of the Republic of Crimea and on the territory of the federal city of Sevastopol", property and property rights and the provision of services by this organization to represent the interests of depositors;
Federal Law No. 366-FZ of November 24, 2014 supplemented paragraph 2 of Article 146 of this Code with subparagraph 15, which shall enter into force not earlier than one month after the official publication of the said Federal Law and not earlier than the 1st day of the next tax period following value added tax
15) operations for the sale of property and (or) property rights of debtors recognized in accordance with the legislation of the Russian Federation as insolvent (bankrupt);
Paragraph 2 was supplemented by subparagraph 16 from January 1, 2018 - Federal Law of November 27, 2017 N 351-FZ
16) transfer on a gratuitous basis to state authorities of the constituent entities of the Russian Federation and local self-government bodies of property, including objects of construction in progress, by a joint-stock company, which was established in order to implement agreements on the creation of special economic zones and 100 percent of whose shares belong to the Russian Federation, and economic societies created with the participation of such joint-stock company for the specified purposes, being the management companies of special economic zones;
17) transfer free of charge:
into the ownership of a non-profit organization, the main statutory goals of which are the promotion and holding of the FIA Formula 1 World Championship, a real estate object for holding Formula 1 road and ring car races, as well as simultaneously with the said real estate object intangible assets and (or) necessary to ensure the functioning of the specified real estate objects of infrastructure, movable property;
into state or municipal ownership of an immovable property intended for holding sports events in speed skating, as well as, simultaneously with the said immovable property, infrastructure facilities, movable property necessary to ensure the functioning of the said immovable property;
Paragraph 2 was supplemented by subparagraph 18 from January 1, 2019 - Federal Law of November 12, 2018 N 414-FZ
18) transfer on a gratuitous basis to state authorities and (or) local authorities of the results of work on the creation and (or) reconstruction of heat supply facilities, centralized hot water supply systems, cold water supply and (or) sanitation, individual objects of such systems located in the state or municipal property and transferred for temporary possession and use to the taxpayer in accordance with lease agreements, as well as heat supply facilities, centralized hot water supply systems, cold water supply and (or) sanitation, individual objects of such systems created by the taxpayer during the term of the lease agreements, in the event the conclusion by this taxpayer in relation to these objects of concession agreements in accordance with Part 1 of Article 51 of the Federal Law of July 21, 2005 N 115-FZ "On Concession Agreements";
Paragraph 2 was supplemented by subparagraph 19 from July 1, 2019 - Federal Law of April 15, 2019 N 63-FZ
19) transfer on a gratuitous basis to the state treasury of the Russian Federation of real estate objects;
Paragraph 2 was supplemented by subparagraph 20 from April 15, 2019 - Federal Law of April 15, 2019 N 63-FZ
20) transfer on a gratuitous basis of property to the ownership of the Russian Federation for the purposes of organizing and (or) conducting scientific research in Antarctica.
