1. For the purposes of this chapter, income is recognized in the reporting (tax) period in which it occurred, regardless of the actual income Money, other property (works, services) and (or) property rights (accrual method).
2. For income relating to several reporting (tax) periods, and if the relationship between income and expenses cannot be clearly determined or is determined indirectly, the income is distributed by the taxpayer independently, taking into account the principle of uniform recognition of income and expenses.
For industries with long-term (more than one tax period) the technological cycle in the event that the terms of the concluded contracts do not provide for the phased delivery of works (services), the income from the sale of these works (services) is distributed by the taxpayer independently in accordance with the principle of formation of expenses for the specified works (services) (the paragraph was additionally included from January 1, 2003 of the year federal law dated December 31, 2002 N 191-FZ).
3. For income from sales, unless otherwise provided by this chapter, the date of receipt of income is the date of sale of goods (works, services, property rights), determined in accordance with paragraph 1 of Article 39 of this Code, regardless of the actual receipt of funds (other property (works, services) and (or) property rights) in their payment. When goods (works, services) are sold under a commission agreement (agency agreement) by the taxpayer-committent (principal), the date of receipt of income from the sale is the date of sale of the property (property rights) belonging to the principal (principal) specified in the notice of the commission agent (agent) on the sale and (or) in the commission agent's (agent's) report (paragraph as amended by Federal Law No. 57-FZ of May 29, 2002; the effect applies to relations that arose from January 1, 2002.
Implementation date real estate the date of transfer of immovable property to the acquirer of this property according to the deed of transfer or other document on the transfer of immovable property is recognized.
(The paragraph is additionally included from January 1, 2013 by the Federal Law of November 29, 2012 N 206-FZ)
Paragraphs two - four of clause 3 of the previous edition from January 1, 2013 are considered, respectively, paragraphs three - five of clause 3 of this edition - Federal Law of November 29, 2012 N 206-FZ.
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The date of sale of securities owned by the taxpayer is also recognized:
(The paragraph was additionally included from January 1, 2010 by Federal Law No. 281-FZ of November 25, 2009; as amended by Federal Law No. 420-FZ of December 28, 2013.
the date of termination of obligations to transfer securities by offsetting similar counterclaims;
(The paragraph is additionally included from January 1, 2015 by the Federal Law of December 28, 2013 N 420-FZ)
the date of actual receipt by the taxpayer of the amounts of partial redemption of the nominal value of the security during the period of its circulation, provided for by the terms of the issue.
(The paragraph is additionally included from January 1, 2015 by the Federal Law of December 28, 2013 N 420-FZ)
Paragraphs four and five of clause 3 of the previous edition from January 1, 2015 are considered, respectively, paragraphs six and seven of clause 3 of this edition - Federal Law of December 28, 2013 N 420-FZ.
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For the purposes of this chapter, requirements for the transfer of securities of the same issuer, one type, one category (type) or one unit share having the same scope of rights are recognized as homogeneous. investment fund(for investment units of mutual investment funds) (the paragraph is additionally included from January 1, 2010 by the Federal Law of November 25, 2009 N 281-FZ).
At the same time, the offset of counter homogeneous claims must be supported by documents in accordance with the law. Russian Federation on the termination of obligations to transfer (accept) securities, including reports of a clearing organization, persons engaged in brokerage activities, or managers who, in accordance with the legislation of the Russian Federation, provide the taxpayer with clearing, brokerage services or carry out trust management in the interests of the taxpayer (the paragraph is additionally included from January 1, 2010 by the Federal Law of November 25, 2009 N 281-FZ).
4. For non-operating income, the date of receipt of income is recognized:
1) the date of signing by the parties of the act of acceptance and transfer of property (acceptance and delivery of works, services) - for income (paragraph as amended by Federal Law of May 29, 2002 N 57-FZ; the effect applies to arising since January 1, 2002:
the paragraph was excluded from June 30, 2002 by the Federal Law of May 29, 2002 N 57-FZ, the effect applies to relations that arose from January 1, 2002;
in the form of property (works, services) received free of charge;
for other similar income;
2) the date of receipt of funds to the settlement account (cash desk) of the taxpayer - for income:
in the form of dividends from equity participation in the activities of other organizations;
in the form of donated funds;
in the form of refunds of previously paid non-profit organizations contributions that were included in expenses;
in the form of interest accrued on the amount of claims of the bankruptcy creditor in accordance with the legislation on insolvency (bankruptcy);
(The paragraph is additionally included from January 1, 2014 by the Federal Law of December 28, 2013 N 420-FZ)
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The provisions of paragraph five, subparagraph 2, paragraph 4 of this article (as amended by Federal Law No. 420-FZ of December 28, 2013) apply to legal relations that arose from January 1, 2011 - see paragraph 4 of Article 6 of the Federal Law of December 28, 2013 N 420-FZ.
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Paragraph five of subparagraph 2 of the previous edition from January 1, 2014 is considered paragraph six of subparagraph 2 of this edition - Federal Law of December 28, 2013 N 420-FZ.
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(The subparagraph was additionally included from June 30, 2002 by the Federal Law of May 29, 2002 N 57-FZ; the effect applies to relations that arose from January 1, 2002)
2.1) the date of receipt of immovable property under a transfer deed or other document on the transfer (confirming the transfer) of immovable property, the date of transfer of ownership of other property (including securities) - for income in the form of dividends received in non-monetary form;
(The subparagraph is additionally included from January 1, 2015 by the Federal Law of November 24, 2014 N 366-FZ)
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Subparagraph 2 of the previous edition from June 30, 2002 is considered subparagraph 3 of this edition - Federal Law of May 29, 2002 N 57-FZ. The action applies to relations that arose from January 1, 2002.
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3) the date of making settlements in accordance with the terms of concluded agreements or presenting to the taxpayer the documents that serve as the basis for making settlements, or the last day of the reporting (tax) period - for income:
from renting out property;
in the form of license payments (including royalties) for the use of intellectual property;
in the form of other similar income;
(The subparagraph as amended, entered into force on June 30, 2002 by the Federal Law of May 29, 2002 N 57-FZ; the effect applies to relations that arose from January 1, 2002.
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Subparagraph 3 of the previous edition from June 30, 2002 is considered subparagraph 4 of this edition - Federal Law of May 29, 2002 N 57-FZ. The action applies to relations that arose from January 1, 2002.
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4) the date of recognition as a debtor or the date of entry into force of a court decision - for income in the form of fines, penalties and (or) other sanctions for violation of contractual or debt obligations, as well as in the form of amounts of compensation for losses (damage) (subparagraph as amended by effective from June 30, 2002 by Federal Law No. 57-FZ of May 29, 2002; the effect applies to relations that arose from January 1, 2002;
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Subparagraph 4 of the previous edition from June 30, 2002 is considered subparagraph 5 of this edition - Federal Law of May 29, 2002 N 57-FZ. The action applies to relations that arose from January 1, 2002.
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5) the last day of the reporting (tax) period - for income:
in the form of amounts of restored reserves and other similar income;
in the form of income distributed in favor of the taxpayer with his participation in a simple partnership;
on income from trust management of property;
for other similar income;
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Subparagraph 5 of the previous edition from June 30, 2002 is considered subparagraph 6 of this edition - Federal Law of May 29, 2002 N 57-FZ. The action applies to relations that arose from January 1, 2002.
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6) the date of detection of income (receipt and (or) discovery of documents confirming the availability of income) - on income of previous years;
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Subparagraph 6 of the previous edition from June 30, 2002 is considered subparagraph 7 of this edition - Federal Law of May 29, 2002 N 57-FZ. The action applies to relations that arose from January 1, 2002.
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7) the date of transfer of ownership of foreign currency and precious metals when making transactions with foreign currency and precious metals (including depersonalized metal accounts), as well as the last day of the current month - for income in the form of a positive exchange rate difference on property and claims (liabilities), the value of which is expressed in foreign currency(excluding advances), and a positive revaluation of the value of precious metals and claims (liabilities) denominated in precious metals, carried out in the manner prescribed by regulations Central Bank Russian Federation;
(Subclause as amended, entered into force on January 1, 2016 by the Federal Law of November 28, 2015 N 328-FZ.
7) the subparagraph is excluded from June 30, 2002 by the Federal Law of May 29, 2002 N 57-FZ, the effect applies to relations that arose from January 1, 2002;
8) the date of drawing up the act of liquidation of depreciable property, drawn up in accordance with the requirements for accounting, - for income in the form of materials or other property received upon liquidation of depreciable property being decommissioned;
(Subclause as amended, entered into force on August 24, 2013 by the Federal Law of July 23, 2013 N 248-FZ.
9) the date when the recipient of the property (including cash) actually used the specified property (including cash) for other purposes or violated the conditions under which they were provided - for income in the form of property (including cash ) specified in paragraphs 14, 15 of Article 250 of this Code (subparagraph as amended by Federal Law No. 57-FZ of May 29, 2002; the effect applies to relations arising from January 1, 2002;
10) the date of transfer of ownership of foreign currency for income from the sale (purchase) of foreign currency (the subparagraph was additionally included from June 30, 2002 by Federal Law No. 57-FZ of May 29, 2002; the effect applies to relations that arose from January 1, 2002 );
11) the date of receipt of income in the form of a cash equivalent of property transferred to replenish the endowment of a non-profit organization in accordance with the procedure established by Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of the endowment capital of non-profit organizations" and returned to the donor or his successors, the date of crediting funds to the current account of the taxpayer is recognized (the subparagraph is additionally included from November 22, 2011 by the Federal Law of November 21, 2011 N 328-FZ);
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The provisions of subparagraph 8.1 of paragraph 2 of this article (as amended by Federal Law No. 328-FZ of November 21, 2011) shall apply from January 1, 2012 - see paragraph 3 of Article 4 of Federal Law No. 328-FZ of November 21, 2011.
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12) the date of receipt of income in the form of profit of a controlled foreign company is recognized on December 31 of the calendar year following the tax period in which the date of the end of the period falls, for which, in accordance with the personal law of such a company, financial statements are prepared for fiscal year, and in the absence, under the personal law of such a company, of the obligation to draw up and present financial reporting- December 31 of the calendar year following the tax period in which the end date of the calendar year for which its profit is determined falls.
(The subparagraph was additionally included from January 1, 2015 by Federal Law No. 376-FZ of November 24, 2014; as amended by Federal Law No. 32-FZ of February 15, 2016.
4.1. Funds in the form of subsidies received by organizations, except for cases of receiving subsidies under a reimbursable contract, are recognized as non-operating income in the following order:
subsidies received to finance expenses not related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights are accounted for no more than three tax periods, counting the tax period in which these subsidies were received, as they are recognized expenses actually incurred from these funds. At the end of the third tax period, subsidies received that are not included in income are recognized as non-operating income for the last reporting date this tax period;
subsidies received to finance expenses related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights are taken into account as expenses actually incurred from these funds are recognized. When the said property, property rights are sold, liquidated or otherwise disposed of, the subsidies received that are not included in income are recognized as non-operating income as of the last date of the reporting (tax) period in which the sale, liquidation or other disposal of the said property, property rights took place;
subsidies received to compensate for previously incurred expenses not related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, the acquisition of property rights, or lost income, are accounted for at a time on the date of their enrollment;
subsidies received to compensate for previously incurred expenses related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights, are accounted for at a time on the date of their crediting in the amount corresponding to the amount of accrued depreciation for previously incurred expenses related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights. The difference between the amount of subsidies received and the amount accounted for in income as of the date of their transfer is reflected in income in the manner similar to the procedure provided for in paragraph three of this clause.
In case of violation of the conditions for receiving subsidies provided for by this paragraph, the amounts of subsidies received are fully reflected as part of the income of the tax period in which the violation was committed.
(The paragraph is additionally included from April 7, 2010 by Federal Law of April 5, 2010 N 41-FZ, applies to legal relations that arose from January 1, 2009; as amended by Federal Law of December 29, 2014 N 465-FZ.
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The provisions of Clause 4.1 of this Article (as amended by Federal Law No. 465-FZ of December 29, 2014) apply to legal relations on accounting as part of tax base for corporate income tax income in the form of subsidies received to support the purchase activity electrical energy from power systems foreign countries and from manufacturers operating in the territory of the Crimean federal district, for the purpose of its further sale to consumers (ensuring energy supply to consumers of electrical energy) according to fixed prices(tariffs) that arose from June 1, 2014 - see paragraph 2 of Article 3 of the Federal Law of December 29, 2014 N 465-FZ.
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4.2. The clause was additionally included from September 2, 2010 by the Federal Law of July 27, 2010 N 229-FZ, the effect applies to legal relations that arose from January 1, 2010; invalidated from January 1, 2015 - Federal Law of December 29, 2014 N 465-FZ.
4.3. The clause was additionally included from March 11, 2011 by the Federal Law of March 7, 2011 N 23-FZ, the effect applies to legal relations that arose from January 1, 2011; invalidated from January 1, 2015 - Federal Law of December 29, 2014 N 465-FZ.
4.4. The clause is additionally included from July 22, 2011 by the Federal Law of July 19, 2011 N 245-FZ, applies to legal relations that arose from January 1, 2010; invalidated from January 1, 2015 - Federal Law of December 29, 2014 N 465-FZ.
5. When a financial agent sells financing services against the assignment of a monetary claim, as well as when a new creditor who has received the specified claim, financial services the date of receipt of income is determined as the day of the subsequent assignment this requirement or performance by the debtor of this requirement. When a taxpayer - the seller of goods (works, services) cedes the right to claim a debt to a third party, the date of receipt of the assignment of the right to claim is determined as the day the parties sign the act of assignment of the right to claim N 57-FZ; the effect applies to relations that arose from January 1, 2002.
6. Under loan agreements or other similar agreements (including debt obligations executed in securities), the validity of which falls on more than one reporting (tax) period, for the purposes of this chapter, income is recognized as received and included in the corresponding income at the end of each month of the corresponding reporting (tax) period, regardless of the date (terms) of its payment, provided for by the contract.
In the event that a loan agreement or other similar agreement (including debt obligations executed in securities) provides that the fulfillment of an obligation under such an agreement depends on the value (or other value) of the underlying asset with accrual of a fixed interest rate, income accrued on the basis of this fixed rate is recognized on the last day of each month of the relevant reporting (tax) period, and income actually received based on the prevailing value (or other value) of the underlying asset is recognized on the date of fulfillment of the obligation under this agreement.
In the event of termination of the contract (repayment debt obligation) within a calendar month, income is recognized as received and included in the relevant income as of the date of termination of the contract (repayment of the debt obligation).
The provisions of this paragraph shall not apply to income in the form of interest accrued on the amount of claims of the bankruptcy creditor in accordance with the legislation on insolvency (bankruptcy).
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The provisions of paragraph four of paragraph 6 of this article (as amended by Federal Law No. 420-FZ of December 28, 2013) apply to legal relations that arose from January 1, 2011 - see paragraph 4 of Article 6 of Federal Law No. 420 of December 28, 2013 -FZ.
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(Paragraph as amended, entered into force on January 1, 2014 by the Federal Law of December 28, 2013 N 420-FZ.
7. The clause was additionally included from June 30, 2002 by the Federal Law of May 29, 2002 N 57-FZ, the effect applies to relations that arose from January 1, 2002; invalidated from January 1, 2015 - Federal Law of April 20, 2014 N 81-FZ.
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Clause 7 of the previous edition from June 30, 2002 is considered clause 8 of this edition - Federal Law of May 29, 2002 N 57-FZ. The action applies to relations that arose from January 1, 2002.
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8. Income denominated in foreign currency shall be recalculated for taxation purposes into rubles according to official exchange rate established central bank Russian Federation as of the date of recognition of the relevant income, unless otherwise provided by this paragraph.
Claims (obligations), the value of which is expressed in foreign currency, property in the form of currency valuables are converted into rubles at the official rate established by the Central Bank of the Russian Federation on the date of transfer of ownership of the said property, termination (fulfillment) of claims (obligations) and (or) on the last day of the current month, whichever happened first.
If, when recalculating a foreign currency denominated (conditional monetary units) the value of claims (liabilities) payable in rubles, a different foreign exchange rate established by law or by agreement of the parties is applied, recalculation of income, claims (liabilities) in accordance with this paragraph is made at such a rate.
In the event of receipt of an advance payment, earnest money, income denominated in foreign currency shall be recalculated into rubles at the official exchange rate established by the Central Bank of the Russian Federation on the date of receipt of the advance payment, earnest money (to the extent attributable to advance payment, earnest money).
(Paragraph as amended, entered into force on January 1, 2015 by Federal Law No. 81-FZ of April 20, 2014.
Located on a land plot owned by another person, has the right to use the land provided by such a person for this property land plot.
The second paragraph is invalid.
2. When transferring the right of ownership to real estate located on someone else's land to another person, he acquires the right to use the relevant land on the same conditions and to the same extent as the former owner of the real estate.
1. Limit dimensions the area of the part of the land plot occupied by the building, structure, structure and necessary for their use is determined in accordance with paragraph 3 of Art. 33 of the Land Code based on the duly approved norms for land acquisition for specific types of activities or the rules for land use and development, land management, town planning and project documentation.
2. In the event of the transfer of ownership of a building, structure, structure to several owners, the procedure for using the land plot is determined taking into account the shares in the ownership of the building, structure, structure or the established procedure for using the land plot (clause 1, article 35 of the Land Code).
3. The buyer of a building, structure, structure has the right to demand registration of the relevant rights to a land plot occupied by real estate and necessary for its use, on the same conditions and to the same extent as the previous owner of real estate, from the moment of state registration of the transfer of ownership of the building , building, structure.
Arbitrage practice.
If the real estate is located on a land plot owned by the seller on the right of permanent (perpetual) use, and the buyer, in accordance with Article 20 of the Land Code of the Russian Federation, cannot be provided with a land plot on such a right, the latter as a person to whom the right of permanent (perpetual) use of the land plot has been transferred in connection with with the acquisition of a building, structure, structure (clause 2, article 268, clause 1, article 271 of the Civil Code of the Russian Federation), can formalize its right to a land plot by concluding a lease agreement or acquire it in ownership in the manner provided for in clause 2, art. 3 of the Law on the Enactment of the ZK.
The buyer of a building, structure, structure located on a land plot owned by the seller on a leasehold basis, from the moment of registration of the transfer of ownership of such real estate, acquires the right to use the land plot occupied by a building, structure, structure and necessary for their use on a leasehold basis, regardless of whether the lease agreement between the buyer of real estate and the owner of the land plot has been formalized in the prescribed manner (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 N 11).
4. Land plots that are in state or municipal ownership and on which buildings, structures and structures are located that are owned by all-Russian public organizations of the disabled and organizations whose sole founders are all-Russian public organizations of the disabled on the day the Land Code is put into effect are provided for ownership specified organizations free of charge.
Special law.
Federal Law No. 137-FZ of October 25, 2001 "On Enactment of the Land Code of the Russian Federation".
1. The owner of a building, structure or other immovable property located on a land plot owned by another person has the right to use the part of the land plot provided by such person for this immovable property.
Unless otherwise follows from the law, the decision to grant state or municipal land, or the contract, the owner of a building or structure has the right to permanent use of a part of the land plot (Articles 268-270) on which this immovable property is located.
2. Upon transfer of ownership of real estate located on someone else's land to another person, he acquires the right to use the relevant part of the land on the same conditions and to the same extent as the former owner of the real estate.
The transfer of the right of ownership to a land plot is not the basis for the termination or change of the right of use of this land belonging to the owner of real estate.
3. The owner of immovable property located on someone else's land plot has the right to own, use and dispose of this immovable property at his own discretion, including the demolition of the relevant buildings and structures, insofar as this does not contradict the terms of use of this plot established by law or contract.
The absence in the current Russian legislation of the rule that everything located on the land plot follows the right to land often leads to a situation where the owner of the land plot and the owner of the building are different persons. At the same time, the exercise of ownership of a structure (building, structure) is impossible without any right to land. Based on this, in paragraph 1 of Art. 271, it was determined that the owner of a building, structure or other real estate located on a land plot owned by another person has the right to use the land plot provided for real estate by the owner of the land plot.
If an agreement is not reached between the owner of the plot and the owner of the real estate on the provision of a land plot and the rights to the plot located under the property cannot be established on the basis of the law or the decision on the provision of land, then by virtue of the norm of paragraph 1 of Art. 271 the owner of real estate has the right to permanent (unlimited) use of the land plot under the real estate object. However, due to restrictions in establishing the right to permanent (unlimited) use of a land plot, established by Art. 20 of the Land Code, the right to permanent (unlimited) use of a land plot can only be held by state and municipal institutions, federal state-owned enterprises, state authorities and local governments. Other persons cannot have such a right and must transform their right into the right of ownership or lease within the prescribed period, except for citizens for whom the period has not been established (see commentary to Article 270).
New edition Art. 271 Tax Code of the Russian Federation
1. For the purposes of this chapter, income is recognized in the reporting (tax) period in which it occurred, regardless of the actual receipt of funds, other property (work, services) and (or) property rights (accrual method), unless otherwise provided for in paragraph 1.1 of this article.
1.1. The taxpayers specified in subparagraph 1 of paragraph 1 of Article 275.2 of this Code recognize income from activities related to the production of hydrocarbons at a new offshore hydrocarbon field in the tax (reporting) period in which they occurred, regardless of the time of actual receipt funds, other property (works, services) and (or) property rights (accrual method), but not earlier than the date of allocation of a new offshore hydrocarbon deposit in the subsoil area or, in the cases provided for in paragraph 8 of Article 261 of this Code, the date the taxpayer makes a decision on the completion of work (part thereof) for the development natural resources on the specified subsoil plot or on the complete cessation of work on the subsoil plot due to economic inexpediency, geological futility or for other reasons.
If more than one new offshore hydrocarbon field has been identified in the subsoil area, the amount of income up to the date of allocation of new offshore hydrocarbon fields in the subsoil area related to activities related to the production of hydrocarbons in a new offshore hydrocarbon field carried out at each new field in this subsoil plot, is determined taking into account the provisions of paragraph 3 of Article 299.3 of this Code.
The incomes specified in this paragraph, expressed in foreign currency, for taxation purposes are recalculated into rubles at the official rate established by the Central Bank of the Russian Federation on the dates corresponding to the dates of recognition of similar types of income in accordance with paragraphs 3-6 of this article, without taking into account the provisions of paragraph one of this paragraph.
2. For income relating to several reporting (tax) periods, and if the relationship between income and expenses cannot be clearly determined or is determined indirectly, the income is distributed by the taxpayer independently, taking into account the principle of uniform recognition of income and expenses.
For industries with a long (more than one tax period) technological cycle, if the terms of the concluded contracts do not provide for the phased delivery of works (services), the income from the sale of these works (services) is distributed by the taxpayer independently in accordance with the principle of formation of expenses for these works (services). ).
3. For income from sales, unless otherwise provided by this chapter, the date of receipt of income is the date of sale of goods (works, services, property rights), determined in accordance with paragraph 1 of Article 39 of this Code, regardless of the actual receipt of funds (other property (works, services) and (or) property rights) in their payment. When goods (works, services) are sold under a commission agreement (agency agreement) by the taxpayer-committent (principal), the date of receipt of income from the sale is the date of sale of the property (property rights) belonging to the principal (principal) specified in the notice of the commission agent (agent) on the sale and (or) in the report of the commission agent (agent).
The date of sale of immovable property is the date of transfer of immovable property to the acquirer of this property under a deed of transfer or other document on the transfer of immovable property.
The date of sale of securities owned by the taxpayer is also recognized:
the date of termination of obligations to transfer securities by offsetting similar counterclaims;
the date of actual receipt by the taxpayer of the amounts of partial redemption of the nominal value of the security during the period of its circulation, provided for by the terms of the issue.
For the purposes of this chapter, requirements for the transfer of securities of one issuer, one type, one category (type) or one unit investment fund (for investment units of unit investment funds) having the same scope of rights are recognized as homogeneous.
At the same time, the set-off of homogeneous counterclaims must be confirmed by documents in accordance with the legislation of the Russian Federation on the termination of obligations to transfer (accept) securities, including reports of a clearing organization, persons engaged in brokerage activities, or managers who, in accordance with the legislation of the Russian Federation, provide to the taxpayer clearing, brokerage services or carry out trust management in the interests of the taxpayer.
4. For non-operating income, the date of receipt of income is recognized:
1) the date of signing by the parties of the act of acceptance and transfer of property (acceptance and delivery of works, services) - for income:
the second paragraph is deleted;
in the form of property (works, services) received free of charge;
for other similar income;
2) the date of receipt of funds to the settlement account (cash desk) of the taxpayer - for income:
in the form of dividends from equity participation in the activities of other organizations;
in the form of donated funds;
in the form of refunds of contributions previously paid to non-profit organizations that were included in expenses;
in the form of interest accrued on the amount of claims of the bankruptcy creditor in accordance with the legislation on insolvency (bankruptcy);
2.1) the date of receipt of immovable property under a deed of transfer or other document on the transfer (confirming the transfer) of immovable property, the date of transfer of ownership of other property (including securities) - for income in the form of dividends received in non-monetary form;
3) the date of making settlements in accordance with the terms of concluded agreements or presenting to the taxpayer the documents that serve as the basis for making settlements, or the last day of the reporting (tax) period - for income:
from renting out property;
in the form of license payments (including royalties) for the use of intellectual property;
in the form of other similar income;
4) the date of recognition as a debtor or the date of entry into force of a court decision - on income in the form of fines, penalties and (or) other sanctions for violation of contractual or debt obligations, as well as in the form of amounts of compensation for losses (damage);
5) the last day of the reporting (tax) period - for income:
in the form of amounts of restored reserves and other similar income;
in the form of income distributed in favor of the taxpayer with his participation in a simple partnership;
on income from trust management of property;
for other similar income;
6) the date of detection of income (receipt and (or) discovery of documents confirming the availability of income) - on income of previous years;
7) the date of transfer of ownership of foreign currency and precious metals when making transactions with foreign currency and precious metals (including depersonalized metal accounts), as well as the last day of the current month - for income in the form of a positive exchange rate difference on property and claims ( liabilities), the value of which is expressed in foreign currency (excluding advances), and a positive revaluation of the value of precious metals and claims (obligations) denominated in precious metals, carried out in accordance with the procedure established by the regulations of the Central Bank of the Russian Federation;
8) the date of drawing up the act of liquidation of depreciable property, drawn up in accordance with the requirements for accounting, - for income in the form of materials or other property received upon liquidation of depreciable property being decommissioned;
9) the date when the recipient of the property (including cash) actually used the specified property (including cash) for other purposes or violated the conditions under which they were provided - for income in the form of property (including cash ) specified in paragraphs 14, 15 of Article 250 of this Code;
10) the date of transfer of ownership of foreign currency for income from the sale (purchase) of foreign currency;
11) the date of receipt of income in the form of a cash equivalent of property transferred to replenish the endowment of a non-profit organization in accordance with the procedure established by Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of the endowment capital of non-profit organizations" and returned to the donor or his successors, the date of crediting funds to the current account of the taxpayer is recognized;
12) the date of receipt of income in the form of profit of a controlled foreign company is recognized as December 31 of the calendar year following the tax period in which the end date of the period falls, for which, in accordance with the personal law of such a company, financial statements for the financial year are prepared, and in the absence of in accordance with the personal law of such a company, the obligation to prepare and present financial statements is December 31 of the calendar year following the tax period in which the end date of the calendar year for which its profit is determined falls.
4.1. Funds in the form of subsidies, with the exception of those specified in Article 251 of this Code or received under a reimbursable contract, are recognized as non-operating income in the following order:
subsidies received to finance expenses not related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights are taken into account as expenses actually incurred from these funds are recognized;
subsidies received to finance expenses related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights are taken into account as expenses actually incurred from these funds are recognized. When the said property, property rights are sold, liquidated or otherwise disposed of, the subsidies received that are not included in income are recognized as non-operating income as of the last date of the reporting (tax) period in which the sale, liquidation or other disposal of the said property, property rights took place;
subsidies received to compensate for previously incurred expenses not related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, the acquisition of property rights, or lost income, are accounted for at a time on the date of their enrollment;
subsidies received to compensate for previously incurred expenses related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights, are accounted for at a time on the date of their crediting in the amount corresponding to the amount of accrued depreciation for previously incurred expenses related to the acquisition, creation, reconstruction, modernization, technical re-equipment of depreciable property, acquisition of property rights. The difference between the amount of subsidies received and the amount accounted for in income as of the date of their transfer is reflected in income in the manner similar to the procedure provided for in paragraph three of this clause.
In case of violation of the conditions for receiving subsidies provided for by this paragraph, the amounts of subsidies received are fully reflected as part of the income of the tax period in which the violation was committed.
Funds received from the grantor under a concession agreement, as well as funds received from a public partner under a public-private partnership agreement, a municipal-private partnership agreement, are recognized in the manner prescribed by this paragraph for accounting for subsidies.
5. When a financial agent sells financing services against the assignment of a monetary claim, as well as the sale of financial services by a new creditor who has received the specified claim, the date of receipt of income is determined as the day of the subsequent assignment of this claim or the execution of this claim by the debtor. When a taxpayer - the seller of goods (works, services) cedes the right to claim a debt to a third party, the date of receipt of the assignment of the right to claim is determined as the day the parties sign the act of assignment of the right to claim.
6. Under loan agreements or other similar agreements (including debt obligations executed in securities), the validity of which falls on more than one reporting (tax) period, for the purposes of this chapter, income is recognized as received and included in the corresponding income at the end of each month of the corresponding reporting (tax) period, regardless of the date (terms) of its payment, provided for by the contract.
In the event that a loan agreement or other similar agreement (including debt obligations in securities) provides that the fulfillment of an obligation under such an agreement depends on the value (or other value) of the underlying asset with accrual of a fixed interest rate during the period of the agreement, income accrued based on this fixed rate, are recognized on the last day of each month of the relevant reporting (tax) period, and income actually received based on the prevailing value (or other value) of the underlying asset is recognized on the date of fulfillment of the obligation under this agreement.
In the event of termination of the contract (repayment of a debt obligation) within a calendar month, income is recognized as received and included in the relevant income as of the date of termination of the contract (repayment of a debt obligation).
The provisions of this paragraph shall not apply to income in the form of interest accrued on the amount of claims of the bankruptcy creditor in accordance with the legislation on insolvency (bankruptcy).
Regardless of the provisions of paragraphs one to three of this paragraph, income in the form of interest accrued under a loan agreement for financing a foreign geological exploration project and not recognized for tax purposes for the period from the date of issuance of such a loan to the last day of the month on which the date of the decision on such a foreign exploration project are accounted for for tax purposes in one of the following ways:
in the event of termination of obligations under a loan agreement to finance a foreign geological exploration project in full without satisfaction of the property claims of the taxpayer in connection with the completion of work on the specified foreign geological exploration project and the recognition of such a project as economically inexpedient and (or) geologically unpromising, they are not taken into account for the purposes of taxation;
in the event that a loan agreement for financing a foreign geological exploration project does not comply with one of the conditions specified in paragraph 11 of Article 261 of this Code, they are taken into account in full on the 1st day of the month following the month in which such condition was violated;
The date of making a decision on a foreign exploration project is the earliest of the following dates:
the date the taxpayer made a decision on the success of a foreign geological exploration project;
the date of termination of obligations under the loan agreement to finance a foreign geological exploration project in full without satisfaction of the property claims of the taxpayer in connection with the completion of work on the specified foreign geological exploration project and the recognition of such a project as economically inexpedient and (or) geologically unpromising;
date of termination (partial termination) of obligations under a loan agreement for financing a foreign geological exploration project;
the date on which one of the conditions specified in paragraph 11 of Article 261 of this Code was violated in respect of a loan agreement for financing a foreign geological exploration project;
the last day of the month in which seven consecutive calendar years expire from the date of issuance of a loan to finance a foreign exploration project.
The recognition of a foreign geological exploration project as successful or economically inexpedient and (or) geologically unpromising is carried out by the taxpayer independently in the manner similar to the procedure established by paragraph 10 of Article 261 of this Code in relation to the decision specified in paragraph five of paragraph 11 of Article 261 of this Code.
Income in the form of interest actually received (both in cash and in kind, including by offsetting counterclaims and obligations) by a taxpayer under a loan agreement to finance a foreign geological exploration project in the period from the date of issuance of such a loan to the last day of the month , which falls on the date of making a decision on such a foreign geological exploration project, are recognized on the date of their receipt, determined in the manner established by paragraph 2 of Article 273 of this Code.
7. Has expired.
8. Income denominated in foreign currency shall be recalculated for tax purposes into rubles at the official rate established by the Central Bank of the Russian Federation as of the date of recognition of the relevant income, unless otherwise provided by this clause.
Claims (obligations), the value of which is expressed in foreign currency, property in the form of currency valuables are converted into rubles at the official rate established by the Central Bank of the Russian Federation on the date of transfer of ownership of the said property, termination (fulfillment) of claims (obligations) and (or) on the last day of the current month, whichever happened first.
If, when recalculating the value of claims (obligations) payable in rubles, expressed in foreign currency (conventional monetary units), a different foreign exchange rate is applied, established by law or by agreement of the parties, the recalculation of income, claims (obligations) in accordance with this paragraph is carried out according to such course.
In the event of receipt of an advance payment, earnest money, income denominated in foreign currency shall be recalculated into rubles at the official exchange rate established by the Central Bank of the Russian Federation on the date of receipt of the advance payment, earnest money (to the extent attributable to advance payment, earnest money).
Claims denominated in a foreign currency under a loan agreement for financing a foreign exploration project (including debt on accrued interest) are recalculated into rubles at the official exchange rate established by the Central Bank of the Russian Federation as of the date of the decision on the foreign exploration project, determined by in the manner prescribed by paragraph 6 of this article.
Income in the form of a positive foreign exchange difference arising from the recalculation of claims under a loan agreement for financing a foreign geological exploration project as of the date a decision is made on a foreign geological exploration project is recognized as non-operating income in one of the following ways:
in the event of termination of obligations under such a loan agreement in full without satisfaction of the property claims of the taxpayer in connection with the completion of work on the specified foreign geological exploration project and the recognition of such a project as economically inexpedient and (or) geologically unpromising, they are not taken into account for tax purposes;
in the event that a loan agreement for financing a foreign geological exploration project does not comply with one of the conditions specified in paragraph 11 of Article 261 of this Code, they are taken into account in full as of the date when such condition was violated;
in other cases, they are taken into account evenly over two years starting from the month following the month in which the date of the decision on the foreign geological exploration project falls.
Starting from the day following the date of making a decision on a foreign exploration project, the recalculation of claims, the value of which is expressed in foreign currency, under the relevant loan agreement for financing a foreign exploration project in rubles is made in general order established by paragraphs one through four of this clause.
The procedure for recognizing income on an accrual basis is established by Art. 271 of the Tax Code of the Russian Federation. Accrual income is recognized in the period in which it is incurred. It does not matter whether the organization received money or other property ( property rights) associated with these earnings.
According to paragraph 3 of Art. 273 of the Code, income from sales on an accrual basis should be recognized at the time of shipment (transfer) of goods (works, services, property rights). In turn, the day of shipment is considered the day of sale. Article 39 of the Tax Code of the Russian Federation recognizes as the sale of goods, works or services, respectively, the transfer of ownership of goods, the performance of work or the provision of services.
Some contracts may provide for a special procedure for the transfer of ownership of goods. Most often, they indicate that ownership passes to the buyer after partial or full payment for the goods. In this case, the income of the seller, who uses the accrual method, also arises after partial or full payment for the goods.
With regard to property rights, according to Art. 38 of the Tax Code of the Russian Federation, property rights are not recognized as property for tax purposes (and therefore, goods too). That is, the rules of Art. 39 of the Tax Code of the Russian Federation do not apply here. However, in relation to such a type of property rights as the right to claim, the procedure for determining the date of receipt of income from its sale is prescribed in paragraph 5 of Art. 271 of the Tax Code of the Russian Federation. For a creditor who has received the right to a monetary claim, income is recognized on the day of the subsequent assignment or performance by the debtor of this claim. If the right to claim a debt for the sold goods (works, services) is assigned directly by the seller of these goods (works, services), then the date of receipt of income from this operation is the day of signing the act of assignment of the right to claim. Moreover, in this case, the income is considered non-operating.
Paragraph 4 of Art. 271 of the Tax Code of the Russian Federation determines when non-operating income should be recognized for tax purposes.
For example, if a company received property free of charge, income is recognized on the day when the parties sign an act of acceptance and transfer of property (acceptance and delivery of works, services).
Interest, penalties and fines are recognized as income on the day they are accrued. Some loan agreements loan agreements) do not provide for a uniform payment of interest. However, for tax purposes, such interest must be included in income quarterly in equal shares.
Income from participation in a simple partnership or from trust management of property must be recognized on the last day of the first quarter, half a year, 9 months and a year.
Upon liquidation of an item of fixed assets, the organization may receive income in the form of materials remaining after its dismantling. Such income is considered received on the day when the depreciable property liquidation act was drawn up.
And finally target funds, which the organization used for other purposes, are included in non-operating income on the day they are received on the settlement account (cash) of the organization.
An organization that uses the accrual method must increase or decrease its income by the amount of sum differences (clause 7, article 271 of the Tax Code of the Russian Federation). We are talking about those sum differences that arise when the price of goods (works, services, property rights) is expressed in foreign currency or conventional monetary units, and payment for them is made in rubles.
Based on paragraph 2 of Article 249 of the Tax Code, sales proceeds are determined based on all receipts related to payments for goods (works, services) sold or property rights expressed in cash and (or) in kind.
At the same time, depending on the method of recognition of income and expenses chosen by the taxpayer, receipts related to settlements for goods (works, services) sold or property rights are recognized for the purposes of Chapter 25 of the Tax Code in accordance with Article 271 of the Tax Code (on an accrual basis) or Article 273 of the Tax Code (on a cash basis).
In practice, disputes arise on the issue of the moment of recognition for tax purposes of the profit of the organization's income from the sale of real estate belonging to it.
Paragraph 1 of Article 248 of the Tax Code establishes that for the purposes of taxation with income tax, the income of an organization is divided into income from the sale of goods (works, services) and property rights and non-operating income. For the purposes of calculating income tax, goods are determined in accordance with paragraph 3 of Article 38 of the Tax Code, according to which any property sold or intended for sale is recognized as a product for the purposes of the Tax Code.
Thus, income from the sale of fixed assets of the organization (its real estate objects related to depreciable property) should be classified as income from sales.
Article 249 of the Tax Code establishes that for the purposes of applying Chapter 25 of the Tax Code, sales revenue is recognized as proceeds from the sale of goods (works, services) both of own production and previously purchased. Sales proceeds are determined on the basis of all receipts related to settlements for goods sold, expressed in cash and (or) in kind.
In the event that the taxpayer uses the accrual method as a method of recognizing income and expenses for the purposes of income tax, then the receipts associated with settlements for goods (works, services) or property rights sold are recognized for tax purposes in accordance with Article 271 NK. Based on the provisions of this article, the profit received by the taxpayer is subject to inclusion in the tax base in the reporting period in which the property was sold.
In addition, Article 323 of the Tax Code establishes the specifics of conducting tax accounting operations with depreciable assets. In accordance with the norms of this article, the taxpayer determines the profit (loss) from the sale or disposal of depreciable property on the basis of analytical accounting for each object as of the date of recognition of income (expense).
The loss incurred by the taxpayer is reflected in analytical accounting as other expenses of the taxpayer in accordance with the procedure established by Article 268 of the Tax Code: the resulting loss is included in the composition of other expenses of the taxpayer in equal shares over the period determined as the difference between the period beneficial use of this property and the actual period of its operation until the moment of sale.
Paragraph 1 of Article 11 of the Tax Code establishes that the institutions, concepts and terms of the civil, family and other branches of the legislation of the Russian Federation used in the Tax Code are applied in the sense in which they are used in these branches of legislation, unless otherwise provided by the Tax Code.
In accordance with the provisions enshrined in paragraph 1 of Article 131 of the Civil Code, the right of ownership and other property rights to immovable things, restrictions on these rights, their occurrence, transfer and termination are subject to state registration in the Unified state register bodies implementing state registration rights to real estate and transactions with it.
"Your tax lawyer", 2008, N 9
Despite the fact that according to Art. 39 of the Tax Code of the Russian Federation, the transfer of ownership of the results of work performed (services rendered) is recognized as a sale, and in accordance with Art. 249 of the Tax Code of the Russian Federation, sales revenue is considered to be sales proceeds, in Art. 271 of the Code established special order, which in some cases requires early recognition of income, i.e. until implementation. However, in Art. 272 of the Code establishes a "mirror" norm for the distribution of expenses, which organizations recognize either taking into account the principle of uniform recognition of income and expenses, or independently. These rules have been in force for only a few years, arbitration practice is only developing. Let us analyze in the proposed dilogy of articles approaches to the practical application of these norms.
If the subject of the contract is the performance of works or the provision of services, and the term of the contract is more than one tax period and the contract does not provide for stages, taxpayers need to take into account a very specific aspect of Ch. 25 of the Tax Code of the Russian Federation, established by par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation:
"For industries with a long (more than one tax period) technological cycle, if the terms of the concluded contracts do not provide for the phased delivery of works (services), the income from the sale of these works (services) is distributed by the taxpayer independently in accordance with the principle of formation of expenses for these works ( services).
"For industries with a long (more than one tax period) technological cycle, if the terms of the concluded contracts do not provide for the phased delivery of works (services), the income from the sale of these works (services) is distributed by the taxpayer independently, taking into account the principle of uniform recognition of income based on accounting data At the same time, the principles and methods in accordance with which the income from sales is distributed must be approved by the taxpayer in accounting policy for tax purposes".
It should be borne in mind that these norms came into force only on January 1, 2004 - attention was drawn to this circumstance in the Resolution of the Federal Antimonopoly Service of the North-Western District of February 19, 2007 in case N A05-7836 / 2006-34. At the same time, the Decree of the Federal Antimonopoly Service of the North-Western District dated February 22, 2008 in case N A56-14884 / 2007 states: "Production with a long technological cycle for the purpose of calculating income tax should be understood as production, the start and end dates of which fall on different tax periods, regardless of the number of days of production. The specified applies only to cases of concluding an agreement that does not provide for the phased delivery of work, services (regardless of the duration of the stages)."
Thus, if the sale is of a discrete nature (i.e., separate, discontinuous), for example, if the subject of the contract is a specific scope of work or a separate stage, then it is this discrete object that will be sold in a specific period, and the income from its sale is recognized as the proceeds of this period.
If the sale is of a continuous (lasting) nature, then taxpayers performing such work (providing such services) need to decide how they will recognize income from the performance of these works (rendering services): the price of the contract can be distributed between periods, during which the contract is being fulfilled, in one of the following ways - evenly or in proportion to the share of the actual expenses of this period in total amount expenses provided for in the estimate (such an alternative is proposed by the Ministry of Finance of Russia in the Letter dated October 13, 2006 N 03-03-04 / 4/160).
Example 1. The atelier entered into a household contract for urgent tailoring of a coat. The order was accepted on December 29, 2007, completion of work and delivery of the completed work to the customer - January 2, 2008. The contractual cost is 1000 rubles.
The tax authorities believe that if the terms of the contract provide for the performance of work (provision of services) even within 5 days, but these days fall on two different tax periods, then the income under this contract must be distributed between these periods.
So, in this case (since the term of the contract falls on two tax periods - 2007 and 2008), according to paragraph 2 of Art. 271 of the Tax Code of the Russian Federation, income must be distributed in one of two ways.
The first method ("uniform"): contractual cost in the amount of 1000 rubles. divided by the number of days during which this contract was executed: 1000 rubles. : 5 days = 200 rubles.
There are 3 days in 2007 (December 29, 30, 31), based on this, income is also determined: 200 rubles. x 3 days = 600 rubles.
There are 2 days in 2008 (January 1 and 2), based on this, income is also determined: 200 rubles. x 2 days = 400 rubles.
Thus, the income in the amount of 1000 rubles. must be evenly distributed between the two years (tax periods) during which the contract was executed:
The second method ("proportional"): contractual cost in the amount of 1000 rubles. divided according to the budget.
Suppose the estimate provides that on the first three days of work (December 29, 30 and 31, 2007) 70% of all expenses are carried out, and on the next two days (January 1 and 2, 2008) - 30%. Means:
Thus, the income in the amount of 1000 rubles. should be distributed in proportion to the cost estimate between two years (tax periods) during which the contract was executed:
A number of courts disagree with the literal text tax code of the Russian Federation on the need to distribute income between tax periods with recognition of partial income ahead of schedule (see, in particular, the Decree of the FAS of the West Siberian District of May 3, 2005 in case N F04-2537 / 2005 (10825-A81-26), FAS of the Volga Region district dated April 14, 2005 in case N A72-9271 / 04-7 / 711, FAS Central District dated July 27, 2004 in case N A62-5158 / 03 and the Federal Antimonopoly Service of the North-Western District of February 5, 2004 in case N A56-23359 / 03).
However, in the Decree of the FAS of the East Siberian District of January 23, 2006 in case N A78-1 / 05-C2-17 / 9-F02-6985 / 05-C1, recognition of income from continuing construction work is linked to the dating of intermediate acts on the acceptance of work performed form KS-2<1>and certificates of the cost of work performed form KS-3<1>. A similar conclusion was made in the Decree of the Federal Antimonopoly Service of the Urals District of October 3, 2005 in case No. Ф09-4378/05-С7. At the same time, in the absence of acts of completed work, the very raising of the issue of recognizing any income is debatable - attention was drawn to this obvious circumstance in the Decree of the Federal Antimonopoly Service of the North-Western District of February 20, 2004 in case N A56-17837 / 03.
<1>Unified forms of primary accounting documentation for the accounting of work in capital construction and repair and construction works are approved by the Decree of the State Statistics Committee of Russia dated November 11, 1999 N 100.
The same courts that recognize the early recognition of income from continuing contracts in accordance with paragraph 2 of Art. 271 of the Tax Code of the Russian Federation, link the recognition of income with the simultaneous recognition of expenses.
Example 2. The court concluded that the recognition of income from ongoing works as they are partially completed should be accompanied by the simultaneous recognition of a part of the expenses attributable to income. In doing so, the court stated the following. First, determining the degree of readiness of orders and calculating income and expenses in proportion to it, the taxpayer was guided by par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation.
Secondly, the interdependence of the procedure for the formation of income and expenses is also provided for in paragraph 1 of Art. 272 of the Tax Code of the Russian Federation, according to which, if the terms of the contract provide for the receipt of income over more than one reporting period and do not provide for the phased delivery of goods (works, services), expenses are distributed by the taxpayer independently, taking into account the principle of uniform recognition of income and expenses.
Consequently, the application of the features of determining the tax base for industries with a long technological cycle implies an inseparable temporal connection between income and expenses and excludes the reflection of income in isolation from the expenses caused by them.
position tax authority, which is the basis of the contested decision, allows for a separate reflection of income and expenses, as well as taxation of income without reducing them by the amount of expenses related to them.
Similar conclusions are contained in the Decisions of the FAS of the Central District of December 12, 2007 in case N A36-3264 / 2006 and of May 31, 2006 in case N A36-4182 / 2005. At the same time, in its judgment of 12 December 2007, the court stated that construction site is an object with a long technological cycle. In this regard, the object of taxation for this site should be determined taking into account the features provided for tax legislation, namely, taking into account the norms of paragraph 2 of Art. 271 of the Tax Code of the Russian Federation.
In the Decree of the Federal Antimonopoly Service of the North-Western District of March 23, 2005 in case N A56-8174 / 04, the recognition of income and expenses under a commission agreement was recognized as legitimate. The court pointed out that despite the fact that the terms of the commission agreement do not provide for the phased delivery of work to the commission agent and the customer, the acts determining the degree of readiness of orders were drawn up by the taxpayer in unilaterally and cannot testify to the performance of work in any part.
Determining the degree of readiness of orders and calculating income and expenses in proportion to it, the taxpayer was guided by par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation. At the same time, in the practical application of this provision of the Code, it is necessary to take into account the sectoral specifics of the taxpayer's activities.
Example 3. The decision of the Supreme Arbitration Court of the Russian Federation of September 21, 2007 N 11536/07 upheld the Resolution of the FAS of the East Siberian District of May 24, 2007 in the case of N A33-32430 / 05-F02-2563 / 07, in which the determination by the taxpayer was recognized as lawful proceeds from spent nuclear fuel storage services based on the amount of actual costs, since there are no specific deadlines for completing the spent nuclear fuel handling stages.
According to the case file, the taxpayer provides long-term, comprehensive service, which includes transportation, acceptance, technological storage, subsequent processing of spent nuclear fuel, exposure of radioactive waste. The cost of services for handling spent heat-removing assemblies is determined on the basis of contractual wholesale prices for imported waste. The price for the services of long-term storage of spent nuclear fuel is set by protocols approved by the First Deputy Minister of the Russian Federation for Atomic Energy, and includes the cost of providing these services, as well as the costs of using a special train, the services of accompanying personnel, and transporting spent fuel on the territory of the Russian Federation.
Since the cost under the contracts is determined for the complex provision of services, and there are no clearly established deadlines for completing the stages of handling spent nuclear fuel, the conclusions of the tax authority that profit should be determined at the time of drawing up an act on the acceptance of radioactive waste for technological storage based on the amount of spent nuclear fuel are unlawful. fuel accepted for storage, and the wholesale price established by the approval protocols as one of the conditions of the concluded contracts.
Since services for the storage and processing of spent nuclear fuel have a long technological cycle, and funds are received for the entire range of services provided for by the contract and agreements, it is impossible to determine in what amount the services were paid for the corresponding tax period under these circumstances. Therefore, by certain enough facts economic activity are only the costs incurred by the enterprise in the relevant tax period in the provision of these services.
In this regard, the taxpayer reasonably established the method of determining the revenue from the sale of such services in the amount of recognized expenses increased by 25% of the planned profitability, and tax office had no grounds for determining revenue by another method, so the courts correctly recognized the decision of the tax authority as illegal in terms of additional accrual of income tax.
If the taxpayer has decided to apply the provisions of par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation and distribute income over tax periods, then it is necessary to decide in which cases this needs to be done (according to official bodies).
There is a point of view that industries with a long technological cycle include, for example, the activities of machine-building plants (aircraft, shipbuilding, turbine, etc.). However, at the same time, contracts with a long (long-term) period of validity should be distinguished from industries with a long production cycle, since these are different things.
So, if an organization enters into a long-term contract for the maintenance of any equipment, then such an agreement cannot be considered a production with a long technological cycle, and therefore income under such an agreement is recognized in the general manner (upon signing acts confirming the performance of work), i.e. . it is not necessary to distribute them by reporting (tax) periods. As a justification for this position, as a rule, they refer to the Letter of the Ministry of Finance of Russia dated February 4, 2005 N 03-03-01-04 / 1/52. It follows from this that maintenance work on main pipelines is not a production with a long technological cycle (as, for example, the construction of ships, aircraft, turbines), but long-term (long-term) is the validity period of contracts concluded with customers, which is not the same thing. same. At the same time, with regard to the provision of information services under an agreement lasting from September 1, 2003 to October 31, 2004, in the Letter of the Ministry of Finance of Russia dated September 20, 2004 N 03-03-01-04 / 1/51, an answer was given that "the taxpayer must distribute the income received and the expenses incurred evenly over the entire period of provision of services under this contract."
So the early recognition of income due to the literal interpretation of the norms of paragraph 2 of Art. 271 of the Tax Code of the Russian Federation nevertheless arises in any case of the performance of work (rendering of services) under continuing contracts in relation to:
When interpreting par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation, it turns out that the word "production" is linked exclusively to the production finished products and does not apply to works and services not related to its release.
In this regard, a number of questions arise, which sooner or later the Supreme Arbitration Court of the Russian Federation is called upon to resolve. Firstly, if "production" is linked only to the production of finished products, then why do the tax authorities apply paragraph 2 of Art. 271 of the Tax Code of the Russian Federation to builders who sell not their finished products, but the results of the work performed?
Secondly, in par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation we are talking about production with a long (more than one tax period) technological cycle in the case "if the terms of the concluded contracts do not provide for the phased delivery of works (services) ...". Does it follow from here that this applies only to those machine-building plants that produce their finished products under contracts with specific customers for the manufacture of things (Article 703 of the Civil Code of the Russian Federation), and does not apply to those that produce their finished products on the free market and sell it then under supply contracts (Article 506 of the Civil Code of the Russian Federation)? (It turns out that aviation, shipbuilding and power engineering plants that work on specific orders should recognize income ahead of schedule, but automobile plants that produce their finished products not for a specific customer, but for a free specific market) should not do this.
Thirdly, if during the "construction of ships, aircraft, turbines, etc." income must be recognized during the period of "construction", then what do you want to do if, as a result of the sale of "ships, aircraft, turbines, etc." will not be, because the matter will not come to the release of finished products?
Since the condition for the application of par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation is the absence of stages in the contract, some experts propose to introduce a condition on stages in the contract in order to avoid the need for early recognition of part of the income. In this case, the income will be determined for each completed stage - while the stage may last more than one tax period. Recall that in the Decree of the Federal Antimonopoly Service of the North-Western District of February 22, 2008 in case N A56-14884 / 2007, it is stated that the norms of par. 2 p. 2 art. 271 of the Tax Code of the Russian Federation apply "only to cases of concluding an agreement that does not provide for the phased delivery of work, services (regardless of the duration of the stages)".
Example 4. When assessing additional income tax, the inspectorate pointed to an underestimation of income by the taxpayer as a result of a violation of the principle of uniform recognition of income and expenses when performing work over several tax periods, established by paragraph 2 of Art. 271 of the Tax Code of the Russian Federation.
In this case, the contract provides for the delivery of works in stages, in connection with which a schedule for the delivery of the relevant completed works has been drawn up. Since the transfer of work performed in 2004 was not carried out, but was carried out in 2005, the court of appeal came to the conclusion that the taxpayer lawfully took into account income in accordance with the requirements of paragraph 1 of Art. 271 of the Tax Code of the Russian Federation, i.e. in 2005
(Resolution of the Federal Antimonopoly Service of the West Siberian District of May 31, 2007 in case N Ф04-7506 / 2006 (34257-А81-14))
The nuances of determining income during the phased delivery of work are explained in the Letters of the Ministry of Finance of Russia of August 20, 2007 N 03-03-06 / 1/578 and the Ministry of Taxes of Russia of September 15, 2004 N 02-5-10 / 54. However, it must be borne in mind that not every stage generates income.
Example 5. When considering a dispute regarding the legitimacy of the taxpayer's reflection of income from government contracts(convicted to perform work on the development of electronic visual teaching aids) courts, applying paragraph 4 of Art. 38 of the Tax Code of the Russian Federation, Art. Art. 702, 708, 711 and 720 of the Civil Code of the Russian Federation, made a legitimate and reasonable conclusion about the unfounded requirement of the tax authority to reflect income for the first two stages in the tax period of 2002. When making a decision, the court relied on the following facts:
Conclusions. Despite controversial arbitration practice, taxpayers are required to distribute income over several tax periods and to recognize partially income ahead of schedule if the following conditions are met:
If stages are established in the contract, then the income is determined for each stage, while the stage must be a completed work (service) that has independent significance.
By general rule established by par. 1 p. 1 art. 272 of the Tax Code of the Russian Federation, expenses accepted for income tax purposes are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds and (or) another form of payment and are determined taking into account the provisions of Art. . Art. 318 - 320 of the Tax Code of the Russian Federation. Recall that Art. Art. 318 and 320 of the Code regulate the distribution of direct costs.
Indirect costs should be discussed separately. On the one hand, the first sentence of par. 2 p. 1 art. 272 of the Tax Code of the Russian Federation provides that expenses are recognized in the reporting (tax) period in which they arise based on the terms of transactions.
On the other hand, par. 3 p. 1 art. 272 of the Tax Code of the Russian Federation establishes a special rule for continuing contracts: "... if the terms of the contract provide for the receipt of income during more than one reporting period and do not provide for the phased delivery of goods (works, services), the costs are distributed by the taxpayer independently, taking into account the principle of uniform recognition of income and expenses." At the same time, this norm is corresponding ("mirror") with the special norm of paragraph 2 of Art. 271 of the Tax Code of the Russian Federation. Based on this, the recognition of income and expenses under continuing contracts should be made jointly in one period (such a circumstance is recognized, in particular, in the Resolutions of the Federal Antimonopoly Service of the North-Western District of February 22, 2008 in case N A56-14884 / 2007 and March 23, 2005 in case N A56-8174 / 04, FAS of the East Siberian District of May 24, 2007 in case N A33-32430 / 05-F02-2563 / 07, FAS of the Central District of May 31, 2006 in case N A36 -4182/2005).
However, the Federal Law of June 6, 2005 N 58-FZ par. 2 p. 1 art. 272 of the Tax Code of the Russian Federation was supplemented with a second sentence: "... if the transaction does not contain such conditions and the relationship between income and expenses cannot be clearly determined or is determined indirectly, the expenses are distributed by the taxpayer independently."
This norm was put into effect on January 1, 2006 and still raises a lot of questions. If before January 1, 2006, expenses under contracts in which there was no period for using the result of the performance of the contract could be recognized for the purposes of calculating income tax at a time<1>, then from January 1, 2006, taxpayers for such expenses are already required to make an independent decision on the distribution of these expenses by periods. What situations does the specified norm of the Tax Code of the Russian Federation apply to?
<1>A similar conclusion follows from arbitration practice - see, in particular, the Resolutions of the FAS of the North-Western District of October 15, 2007 in case N A05-810 / 2007 and of March 13, 2007 in case N A05-11056 / 2006- 12, FAS of the Moscow District of May 22, 2007 in case N KA-A40 / 4360-07, FAS of the West Siberian District of April 9, 2007 in case N F04-1999 / 2007 (33120-A81-34).
It's obvious that rent for January is the expense of January. The costs of obtaining a license for a certain period are subject to distribution during the period of validity of the obtained license - this obvious circumstance was noted in the Decree of the Federal Antimonopoly Service of the Volga District dated February 14, 2008 in case N A65-9200 / 2007.
But the expense of what period is the fee for the non-exclusive right to use the software product? If the contract establishes the duration of such a right, then everything is clear - during this period, the costs are distributed. What if there is no such clause in the contract? Then the taxpayer is obliged to make an independent decision.
It turns out that the criteria for the distribution of expenses are set for each individual expense for a particular transaction (by analogy with accounting, such expenses can also be called deferred expenses in tax accounting).
Based on this, many experts suggest, for each case of applying this rule, to draw up an accountant's certificate, which shows the mechanism for distributing expenses (for example, evenly over one tax period: 50% during one tax period and 50% during another; 70% and 30 %). The legitimacy of this approach is also confirmed by arbitration practice, and even for episodes that arose before 2006.
Example. When determining the taxable base for income tax, the inspection did not accept the company's expenses paid for consulting services (on the formation and management of a portfolio of securities, legal support for the circulation of securities, transactions with promissory notes, accounting for rights to securities, etc.) for 2004 and 2005, since these expenses are not related to activities aimed at generating income, and are not economically justified and not documented.
Since the relationship between income and expenses could not be clearly defined, the taxpayer, on the basis of par. 2 p. 1 art. 272 of the Tax Code of the Russian Federation independently distributed expenses, taking into account the principle of uniformity of recognition, based on the prospects for its activities and the recognition of a 10-year period for using the information received under the contract:
The courts upheld the legitimacy of the taxpayer's actions and recognized the conclusion of the tax authority on the economic unreasonability of the services rendered as inconsistent with the evidence, since the taxpayer bought and sold promissory notes in the audited period.
(Resolution of the Federal Antimonopoly Service of the East Siberian District of October 24, 2007 in case N A74-126 / 07-F02-7592 / 07)
Thus, even prior to January 1, 2006, taxpayers had the right to independently distribute certain expenses between several reporting (tax) periods. This right was confirmed arbitration courts, in particular in:
At the same time, the Decree of the Federal Antimonopoly Service of the Central District dated November 22, 2007 in case No. A14-571-200716/25 emphasizes: "The taxpayer's arguments about attributing expenses to any tax periods are rejected as contrary to tax legislation."
Conclusions. Summarizing the above, it can be stated that if the contract contains conditions on the period of its validity or the period of use of the result of its execution, then the costs are subject to distribution based on these terms.
Under a contract that does not contain such conditions, it is necessary to compare the incurred expense with the expected income:
A.N. Medvedev
chief auditor
CJSC "Audit BT",
member of the Scientific and Expert Council
Chambers of tax consultants
1. For the purposes of this chapter, income is recognized in the reporting (tax) period in which it occurred, regardless of the actual receipt of funds, other property (work, services) and (or) property rights (accrual method).
(Item 4 as amended by Federal Law No. 57-FZ of May 29, 2002)
Constitution of the Russian Federation paragraph 1 of article 271
2. For income relating to several reporting (tax) periods, and if the relationship between income and expenses cannot be clearly determined or is determined indirectly, the income is distributed by the taxpayer independently, taking into account the principle of uniform recognition of income and expenses.
For industries with a long (more than one tax period) technological cycle, if the terms of the concluded contracts do not provide for the phased delivery of works (services), the income from the sale of these works (services) is distributed by the taxpayer independently in accordance with the principle of formation of expenses for these works (services). ).
(paragraph introduced by Federal Law No. 191-FZ of December 31, 2002)
3. For income from sales, unless otherwise provided by this chapter, the date of receipt of income is the date of sale of goods (works, services, property rights), determined in accordance with paragraph 1 of Article 39 of this Code, regardless of the actual receipt of funds (other property (works, services) and (or) property rights) in their payment. When goods (works, services) are sold under a commission agreement (agency agreement) by the taxpayer-committent (principal), the date of receipt of income from the sale is the date of sale of the property (property rights) belonging to the principal (principal) specified in the notice of the commission agent (agent) on the sale and (or) in the report of the commission agent (agent).
On the refusal to accept for consideration a request for recognition of paragraph 3 of Article 271 as not complying with the Constitution of the Russian Federation, see the ruling of the Constitutional Court of the Russian Federation of 06.06.2003 N 278-O.
The date of sale of securities owned by the taxpayer is also recognized as the date of termination of obligations to transfer securities by offsetting similar counterclaims.
For the purposes of this chapter, requirements for the transfer of securities of one issuer, one type, one category (type) or one unit investment fund (for investment units of unit investment funds) having the same scope of rights are recognized as homogeneous.
(paragraph introduced by Federal Law No. 281-FZ of November 25, 2009)
At the same time, the set-off of homogeneous counterclaims must be confirmed by documents in accordance with the legislation of the Russian Federation on the termination of obligations to transfer (accept) securities, including reports of a clearing organization, persons engaged in brokerage activities, or managers who, in accordance with the legislation of the Russian Federation, provide to the taxpayer clearing, brokerage services or carry out trust management in the interests of the taxpayer.
(paragraph introduced by Federal Law No. 281-FZ of November 25, 2009)
(Clause 3 as amended by Federal Law No. 57-FZ of May 29, 2002)
4. For non-operating income, the date of receipt of income is recognized:
1) the date of signing by the parties of the act of acceptance and transfer of property (acceptance and delivery of works, services) - for income:
paragraph is excluded. - Federal Law of May 29, 2002 N 57-FZ;
in the form of property (works, services) received free of charge;
for other similar income;
2) the date of receipt of funds to the settlement account (cash desk) of the taxpayer - for income:
in the form of dividends from equity participation in the activities of other organizations;
in the form of donated funds;
in the form of refunds of contributions previously paid to non-profit organizations that were included in expenses;
(Item 2 was introduced by Federal Law No. 57-FZ of May 29, 2002)
3) the date of making settlements in accordance with the terms of concluded agreements or presenting to the taxpayer the documents that serve as the basis for making settlements, or the last day of the reporting (tax) period - for income:
On the refusal to accept for consideration a request for recognition of subparagraph 3 of paragraph 4 of Article 271 as inconsistent with the Constitution of the Russian Federation, see the ruling of the Constitutional Court of the Russian Federation of 06.06.2003 N 278-O.
from renting out property;
in the form of license payments (including royalties) for the use of intellectual property;
in the form of other similar income;
(Item 3 as amended by Federal Law No. 57-FZ of May 29, 2002)
4) the date of recognition as a debtor or the date of entry into force of a court decision - on income in the form of fines, penalties and (or) other sanctions for violation of contractual or debt obligations, as well as in the form of amounts of compensation for losses (damage);
On the refusal to accept for consideration a request for recognition of subparagraph 4 of paragraph 4 of Article 271 as inconsistent with the Constitution of the Russian Federation, see the ruling of the Constitutional Court of the Russian Federation of 06.06.2003 N 278-O.
5) the last day of the reporting (tax) period - for income:
(Clause 2.1 was introduced by Federal Law No. 242-FZ of July 30, 2010)
On the refusal to accept for consideration a request for recognition of subparagraph 5 of paragraph 4 of Article 271 as inconsistent with the Constitution of the Russian Federation, see the ruling of the Constitutional Court of the Russian Federation of 06.06.2003 N 278-O.
in the form of amounts of restored reserves and other similar income;
in the form of income distributed in favor of the taxpayer with his participation in a simple partnership;
on income from trust management of property;
for other similar income;
6) the date of detection of income (receipt and (or) discovery of documents confirming the availability of income) - on income of previous years;
7) the date of transfer of ownership of foreign currency and precious metals when making transactions with foreign currency and precious metals, as well as the last day of the current month - for income in the form of a positive exchange difference on property and claims (liabilities), the value of which is expressed in foreign currency (excluding advances), and a positive revaluation of the value of precious metals;
(as amended by Federal Laws No. 57-FZ of May 29, 2002, No. 137-FZ of July 27, 2006, No. 229-FZ of July 27, 2010)
7) excluded. - Federal Law of May 29, 2002 N 57-FZ;
8) the date of drawing up an act of liquidation of depreciable property, drawn up in accordance with the requirements accounting, - on income in the form of received materials or other property upon liquidation of depreciable property being decommissioned;
9) the date when the recipient of the property (including cash) actually used the specified property (including cash) for other purposes or violated the conditions under which they were provided - for income in the form of property (including cash ) specified in paragraphs 14, 15 of Article 250 of this Code;
(Item 9 as amended by Federal Law No. 57-FZ of May 29, 2002)
10) the date of transfer of ownership of foreign currency for income from the sale (purchase) of foreign currency.
(Item 10 was introduced by Federal Law No. 57-FZ of May 29, 2002)
4.1. Amounts of payments received to promote the self-employment of unemployed citizens and stimulate the creation of additional jobs by unemployed citizens who have opened their own business for the employment of unemployed citizens at the expense of budget funds budget system of the Russian Federation in accordance with programs approved by the relevant state authorities, are accounted for as income during three tax periods with simultaneous reflection of the corresponding amounts as expenses within the limits of actually incurred expenses of each tax period, provided for by the conditions for receiving these amounts of payments.
In case of violation of the conditions for receiving payments provided for by this clause, the amounts of payments received are fully reflected as part of the income of the tax period in which the violation was committed. If at the end of the third tax period the amount of the received payments specified in the first paragraph of this clause exceeds the amount of expenses accounted for in accordance with this clause, the remaining unaccounted amounts are fully reflected in the income of this tax period.
(Clause 4.1 was introduced by Federal Law No. 41-FZ of April 5, 2010)
4.2. Funds received by cinematography organizations from the Federal Fund for Social and Economic Support of Domestic Cinematography for the production, distribution, screening and promotion of a national film, the source of which is budget appropriations, are accounted for as non-operating income in proportion to the conditions for obtaining these funds, the expenses actually incurred from this source , but not more than three tax periods from the moment of receipt of these funds.
This procedure for accounting for these funds does not apply to cases of acquisition of depreciable property at the expense of this source. In the event that depreciable property is acquired at the expense of the said funds, these funds are recognized as income as expenses for the acquisition of depreciable property are recognized.
In case of violation of the conditions for receiving funds provided for by this paragraph, the funds received are fully reflected as income of the tax period in which the violation was committed. If, at the end of the third tax period, the amount of funds received specified in the first paragraph of this clause exceeds the amount of expenses accounted for in accordance with this clause that were actually made at the expense of this source, the difference between the indicated amounts is fully reflected in the non-operating income of this tax period.
(Clause 4.2 was introduced by Federal Law No. 229-FZ of July 27, 2010)
5. When a financial agent sells financing services against the assignment of a monetary claim, as well as the sale of financial services by a new creditor who has received the specified claim, the date of receipt of income is determined as the day of the subsequent assignment of this claim or the execution of this claim by the debtor. When a taxpayer - the seller of goods (works, services) cedes the right to claim a debt to a third party, the date of receipt of the assignment of the right to claim is determined as the day the parties sign the act of assignment of the right to claim.
(as amended by Federal Law No. 57-FZ of May 29, 2002)
6. Under loan agreements and other similar agreements (other debt obligations, including securities), the validity of which falls on more than one reporting period, for the purposes of this chapter, income is recognized as received and included in the composition of the relevant income at the end of the month of the corresponding reporting period.
(as amended by Federal Law No. 281-FZ of November 25, 2009)
In case of termination of the contract (repayment of the debt obligation) before the end of the reporting period, income is recognized as received and included in the relevant income as of the date of termination of the contract (repayment of the debt obligation).
(Clause 6 as amended by Federal Law No. 57-FZ of May 29, 2002)
7. The amount difference is recognized as income:
1) for a taxpayer-seller - on the date of repayment of receivables for sold goods (works, services), property rights, and in case of advance payment - on the date of sale of goods (works, services), property rights;
2) from the taxpayer-buyer - on the maturity date accounts payable for purchased goods (works, services), property, property or other rights, and in case of advance payment - on the date of acquisition of goods (works, services), property, property or other rights.
(Clause 7 was introduced by Federal Law No. 57-FZ of May 29, 2002)
8. Income denominated in foreign currency shall be recalculated for taxation purposes into rubles at the official rate established by the Central Bank of the Russian Federation as of the date of recognition of the respective income. Liabilities and claims denominated in foreign currency, property in the form of currency values are recalculated into rubles at the official rate established by the Central Bank of the Russian Federation as of the date of transfer of ownership of transactions with the said property, termination (fulfillment) of obligations and claims and (or) on the last the number of the reporting (tax) period, depending on what happened earlier.
(as amended by Federal Laws No. 57-FZ of May 29, 2002, No. 137-FZ of July 27, 2006)
In the event of receipt of an advance payment, earnest money, income denominated in foreign currency shall be recalculated into rubles at the official exchange rate established by the Central Bank of the Russian Federation on the date of receipt of the advance payment, earnest money (to the extent attributable to advance payment, earnest money).
(paragraph introduced by Federal Law No. 395-FZ of December 28, 2010)
