Companies planning to import goods to Russia will face many issues related to accounting and taxation in their work. You can find answers to many of them in the article. We will also tell you what features exist when importing goods from Belarus, and about new form VAT declarations for such importers.
The operation of bringing goods into the territory Russian Federation refers to objects of taxation on (clause 2 clause 1 article 146 tax code RF). True, in this case, VAT is paid not through the tax office, but through customs officers as part of general customs payments, which directly follows from paragraphs. 3 p. 1 art. 318 of the Customs Code of the Russian Federation. The tax rate will be either 10% or 18%, depending on the type of imported valuables (clause 5, article 164 of the Tax Code of the Russian Federation).
As a rule, organizations do not have problems with the calculation of "customs" VAT. Most of the questions are related to the application of the deduction. The fact is that organizations can deduct "customs" VAT (clause 2, article 171 of the Tax Code of the Russian Federation). When does the right to deduction arise?
The answer to this question is contained in paragraph 1 of Art. 172 of the Tax Code of the Russian Federation: the tax amount is deductible after the valuables are registered. If we are talking about valuables purchased for further sale (goods), then the date of registration is the posting of their value to account 41. But with regard to fixed assets, tax authorities and taxpayers do not have a common opinion. The former argue that the acceptance of an object for registration means putting it into operation, i.e. the moment when the value of the property is transferred to the debit of account 01. However, according to taxpayers, the object is considered to be registered immediately after its value is shown on accounts 08 or 07. We will have to agree with this opinion. Another Presidium of the Supreme Arbitration Court The Russian Federation in Decree N 10865/03 of February 24, 2004 indicated that the fact of acceptance of the equipment to account 07 is sufficient to obtain the buyer's right to a deduction. And since 2006, it has been officially allowed to deduct VAT on equipment for installation, i.e. from the moment of posting the equipment on account 07.
The basis for the deduction of VAT paid on the import of goods here will not be an invoice, as usual, but customs declaration together with payment documents confirming the fact of payment of VAT to customs officers. These documents must be registered in the purchase book, which is expressly stated in clause 10 of the Rules for maintaining registers of received and issued invoices, purchase books and sales books when calculating value added tax, approved by Decree of the Government of the Russian Federation dated 02.12.2000 N 914. By the way, if the payment of tax on imports is made at the expense of borrowed funds, tax office does not have the right to refuse the organization in the deduction. After all, it follows from the Tax Code of the Russian Federation that the tax must be paid, and it does not matter at what expense exactly. A similar point of view was expressed by the Ministry of Finance of Russia in Letter No. 03-04-08/226 of 24.08.2005.
As already mentioned, when importing property from abroad, organizations receive the right to deduct only if they have paid tax at customs, and the fact of payment is documented. At first glance, it may seem that confirming the fact of payment for the importer of labor will not be: it is enough to have payment order to which the tax was paid. However, in practice the situation is not so simple. The importing organization usually transfers funds to the customs in advance (to the customs deposit), and the customs, in turn, writes off this advance as necessary to pay customs duties and VAT. Therefore, one payment order confirming the transfer of advance amounts is not enough, because. making an advance does not yet indicate the payment of tax on a specific customs declaration.
This conclusion is dictated not only by logic, but also by the norms of Art. 330 of the Customs Code of the Russian Federation. According to paragraph 1 of this article, "advance payments are funds deposited to the account of the customs authority on account of upcoming customs payments and not identified by the payer as specific types and amounts of customs payments in respect of specific goods." And in paragraph 3 of the same article it is said that "the funds received by the customs authority as advance payments are the property of the person who made the advance payments and cannot be considered as customs payments until this person makes an order on this customs authority. And further: "As an order of the person who made advance payments, the filing by him or on his behalf of a customs declaration or the performance of other actions indicating the intention to use their funds as customs payments is considered."
Thus, it actually turns the previously paid advance payments into paid VAT on the customs declaration. Is it then possible to say that filing a customs declaration and a payment order is sufficient to apply the deduction?
As practice shows, no. Not so long ago, the Russian Ministry of Finance issued official clarifications on this matter. In Letter N 03-07-08/198 dated 02.10.2009, the officials noted: the document confirming the actual payment of tax in order to accept it for deduction by the taxpayer is a document called "Confirmation of payment customs duties, taxes". Its issuance at the request of the payer is provided for by paragraph 5 of article 331 of the Customs Code of the Russian Federation.
Earlier, representatives of the financial department in their official clarifications cited a completely different document - the Spending Report Money made as advance payments, which is issued in accordance with paragraph 4 of Art. 330 of the Customs Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated June 30, 2008 N 03-07-08 / 159).
In practice, the tax authorities require one of these documents, and if they are not available, they refuse to deduct the "customs" VAT from the organization. Nevertheless, taxpayers manage to defend their right to a deduction in judicial order. The evidence is, for example, the Decree of the Federal Antimonopoly Service of the Moscow District dated June 19, 2008 N KA-A40 / 4995-08. In this Resolution, the court stated: “Receiving from the customs authority a report on the expenditure of funds made as advance payments is the right, and not the obligation of the taxpayer, and therefore ... the absence of a report, as well as a seal on this document, cannot be grounds for refusing to grant a tax deduction.
We also believe that these documents are not necessary for the purposes of obtaining the right to deduct "customs" VAT. In most cases, customs officers put special marks on the reverse side of the "advance" payment: they indicate the number of the customs declaration, withdraw the balance of funds and certify this entry with a personal numbered seal. Such actions are carried out by customs officers on the basis of paragraph 2 of the Rules for conducting customs control over the accrual and payment of customs payments in the course of customs clearance of goods (approved by Order of the State Customs Committee of Russia dated 04.01.1995 N 2). Judicial practice shows that such marks serve as sufficient evidence of the fact that VAT has been paid at customs (Resolution of the Federal Antimonopoly Service of the West Siberian District dated June 26, 2006 N F04-3664 / 2006 (23712-A45-31)). But if there are no such marks, we recommend that the importer take the opportunity to receive either a Report on the expenditure of funds made as advance payments, or a Confirmation of payment of customs duties and taxes.
And if customs duties and VAT were paid to customs from the settlement account of not the organization, but one of its counterparties, who owed it for the work performed? In other words, the organization asked its debtor to repay the debt by transferring the required amount to pay customs duties and VAT. The importer had the following documents as supporting documents: an agreement with this counterparty for the performance of work and an offsetting act, according to which the amounts of VAT paid by the counterparty to customs were offset against payment for the work performed by our client. Can the importer accept the amount of VAT deductible on the basis of these documents?
In our opinion, maybe, because the tax was still paid, albeit by a third party. However, being aware of the established practice of behavior of the tax authorities, we warn about possible failure on the part of the inspection in the deduction of "import" VAT, since such precedents have already been. True, if the case went to court, the tax inspectorates lost, because. Art. 328 of the Customs Code of the Russian Federation allows you to pay customs duties and taxes to any person. As positive examples from arbitration practice, we cite the Resolutions of the Federal Antimonopoly Service of the North-Western District of June 29, 2006 in case N A56-34727 / 2005, of the Moscow District of May 22, 2006 N KA-A40 / 4033-06.
Another reason for refusing to deduct customs VAT in practice is the state of settlements with a foreign supplier, or rather the absence of such settlements. For some reason, some inspections believe that if the importer has not paid off with his foreign partner, he does not have the right to deduct the VAT paid at customs for deduction from the budget. Although the Tax Code of the Russian Federation refers to the payment of the amount of tax at customs, and not the payment of the cost of imported goods. Nevertheless, the tax authorities in practice come up with new conditions, so organizations have to prove their right to a deduction in court (Resolution of the Federal Antimonopoly Service of the North-Western District of 05.12.2005 N A56-7661 / 2005).
But what about importers who are transferred to the payment of UTII, agricultural tax or using a simplified taxation system? Such organizations single tax does not replace the payment of VAT, transferred at customs when importing goods into Russia. So, when importing goods from abroad, they will have to pay a tax, which, unfortunately, cannot be deducted from the budget. First, one of the conditions for the deduction - the use of goods in VATable transactions - is not met. Secondly, the Tax Code of the Russian Federation clearly states: organizations that are not VAT payers take into account the tax paid upon importation in the cost of goods (clause 3, clause 2, article 170). On this occasion, the Federal Tax Service of Russia issued a Letter of October 19, 2005 N MM-6-03 / [email protected], which, however, concerns some "simplifiers". In it, officials noted that the tax paid on the import of fixed assets is included in the cost of the object.
In practice, the following situation may arise: an imported product is credited and sold in one tax period, in the same period VAT is deducted, and in another tax period customs, the amount of VAT and customs fees changes accordingly. The question arises: do I need to adjust the amount of the deduction?
If the adjustment was made in the direction of increase, then the organization has the right to accept the additional paid amount of VAT for deduction. But she must do this as the surcharge, because. in relation to "import" VAT, the right to a deduction arises on the basis of documents confirming the actual payment of tax amounts (clause 1, article 172 of the Tax Code of the Russian Federation). Accordingly, additional sheets to the purchase book in this case are not compiled, because additional amount the organization will reflect the deduction in the current period - the payment period.
If, as a result of the adjustment, the amount of VAT turned out to be less than originally paid, practice shows that the tax authorities require the submission of an updated declaration for the period when the overstated deduction of "customs" VAT was applied. The likelihood of claims from the tax authorities in the absence of such "clarifications" is the highest if the customs, as a result of the adjustment, refunded the overpaid VAT to the importer. But in judicial practice you can find disputes in which the tax inspectorate declared the illegal application of the deduction even in the absence of the fact that the excess VAT was returned to the importer. Therefore, in order to avoid claims, the organization may decide to clarify its VAT obligations. In this case, in addition to the revised declaration, she will need to draw up an additional sheet to the purchase book for the period in which the customs VAT deduction was applied.
However, judicial practice in this matter is on the side of importers. A similar dispute was considered by the Federal Antimonopoly Service of the North-Western District in its Decision of December 26, 2006 in case No. A05-4379 / 2006-18, and in the situation under discussion, the overpaid VAT was not returned to the importer. The court pointed out that a change in the direction of reducing the customs value of the goods "cannot lead to an understatement of the tax, since the amount by which the tax payable at customs is reduced will be equal to the amount by which the tax deductions must be reduced."
Moreover, in judicial practice, one can find decisions in which the court took the side of the taxpayer even if there was a fact that the customs office returned the overpaid VAT (Resolution of the Federal Antimonopoly Service of the West Siberian District of 06.28.2007 N F04-4105 / 2007 (35511-A03-29)) . Thus, if the organization decides to take a risk and does not submit an updated VAT return for the previous tax period, it has a chance to challenge the actions of the tax authorities to recognize part of the deduction as illegal in court.
There is also an official explanation of the Federal Tax Service of Russia on this issue. In Letter No. 03-2-03/1236 dated 27.06.2007, officials indicated that if, after the customs declaration is accepted, it is corrected, then the amounts of VAT actually paid by the taxpayer and credited to the account of the customs authority are subject to deductions, taking into account the specified adjustment.
When importing goods into the customs territory of the Russian Federation, the organization also bears the costs of paying customs duties. Can these amounts be taken into account when taxing profits and in what order?
If the importer will use the imported values as inventories (account 10), the cost of paying customs duties will form the cost of inventories (IPZ). This clearly follows from paragraph 2 of Art. 254 of the Tax Code of the Russian Federation.
If the organization carries out trading activities and plans to sell imported values, the procedure for accounting for expenses in this case is regulated by Art. 320 of the Tax Code of the Russian Federation. This article provides the procedure for forming the cost of goods, and among the costs that form this cost, customs payments are not indicated. But it is said that "the taxpayer has the right to form the cost of acquiring goods, taking into account the costs associated with the acquisition of these goods (Italics aut. - O.A.)". Since customs payments are paid in connection with the purchase (import) of goods, these costs, at the request of the organization, can form the purchase cost of goods. This conclusion was also made in the Letters of the Ministry of Finance of Russia dated May 29, 2007 N 03-03-06 / 1/335, the Federal Tax Service of Russia for Moscow dated September 9, 2005 N 20-12 / 64164.2. But if the organization decides not to include customs duties in the cost of goods, the cost of paying customs duties will be considered as indirect costs. The chosen option for accounting for the costs of paying customs duties, the organization must register in its accounting policy.
Can organizations using the simplified tax system include the amount of customs payments in expenses when calculating a single tax? The amounts of customs payments paid when importing goods into the Russian customs territory are indicated separately in the list of expenses taken into account when calculating the single tax (clause 11 clause 1 article 346.16 of the Tax Code of the Russian Federation). Therefore, immediately after paying the amount of customs duties, the "simplifier" can include them in expenses that reduce the tax base for a single tax (clause 2, article 346.17 of the Tax Code of the Russian Federation).
When importing goods, the importing organization, as a rule, engages carriers or forwarders to deliver the goods to its warehouse. Such expenses are taken into account when taxing profits. And if the importer applies the simplified taxation system?
Until January 1, 2008, the "simplifiers" reduced the income from the sale of goods by the amount of transportation costs. This procedure followed from the old version of paragraphs. 23 paragraph 1 of Art. 346.16 of the Tax Code of the Russian Federation. It said that "when selling these goods, the taxpayer has the right to reduce the income from these operations by the amount of expenses directly related to such sale, including the amount of expenses for storage, maintenance and transportation of the goods being sold."
The current wording of this subparagraph sounds different: it does not follow from its wording that transportation costs should reduce income from the sale of goods, as it was before. It simply says: expenses include "expenses for paying for the cost of goods purchased for further sale (reduced by the amount of expenses specified in paragraph 8 of this paragraph), as well as expenses associated with the acquisition and sale of these goods, including expenses for storage, maintenance and transportation of goods (Italics author - O.A.)". Thus, at present, the fact of the sale of goods is not important for inclusion in the cost of shipping costs. Moreover, this amendment, which entered into force in 2008, extended its effect to 2007 as well.
In addition, in paras. 2 p. 2 art. 346.17 of the Tax Code of the Russian Federation clearly states: as the goods are sold, the costs of paying for their cost are taken into account (there is no addition "as well as the costs associated with the acquisition ..."). Whereas it is noted below: "The costs directly related to the sale of these goods, including the costs of storage, maintenance and transportation, are accounted for as expenses after they are actually paid (Italic ed. - O.A.)". Thus, the "simplifier" can also include the costs of delivery in the calculation of the single tax as payment is made, without waiting for the fact of the sale of goods, i.e. without breaking down shipping costs by item.
When accounting for transportation costs, importers applying the general taxation regime should pay attention to one important feature. If the carrier submits an invoice with the VAT allocated at the rate of 18%, then before accepting this amount of tax for deduction, it is necessary to check whether the carrier applied the correct rate.
The fact is that works or services for the transportation of goods imported into the territory of the Russian Federation are subject to VAT at a rate of 0% (clause 2, clause 1, article 164 of the Tax Code of the Russian Federation). Accordingly, if for such works (services) the carrier applies the 18% VAT rate and presents the corresponding amount of tax to the customer (importer), the latter will have problems deducting input VAT. Inspectors simply recognize such a deduction as illegal and charge additional VAT, penalties and fines.
So, in the Letter of the Ministry of Finance of Russia dated 06.17.2009 N 03-07-08 / 134 it is said: "Invoices issued by the seller providing services for the organization of transportation and transportation of imported goods, taxable at a zero rate of value added tax, indicating otherwise the size of the rate of this tax cannot be the basis for accepting from the buyer for deduction the amounts of tax unlawfully presented by the seller of services. Officials held the same opinion earlier (see Letters of the Ministry of Finance of Russia of 25.07.2008 N 03-07-08 / 187, the Federal Tax Service of Russia of 13.01.2006 N MM-6-03 / [email protected]).
This position is shared by the courts. They note that the use of an 18% rate instead of zero is contrary to the principle of equality of taxation, because. allows the possibility of arbitrary application by VAT payers of the provisions of the Tax Code of the Russian Federation. Therefore, it is unlawful to claim VAT at a rate of 18% (see, for example, Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 20, 2007 N 7205/07, Decision of the Supreme Arbitration Court of the Russian Federation of June 9, 2006 N 4364/06, Resolution of the FAS of the Moscow District of December 11, 2008 N KA-A40/11445-08). The legitimacy of this approach was also confirmed by the Constitutional Court of the Russian Federation in Ruling No. 468-O-O of 05.03.2009: the norms of the Tax Code of the Russian Federation, according to which the buyer of transport services is not entitled to deduct VAT, unlawfully charged to him by the carrier at a rate of 18%, correspond to the Constitution of the Russian Federation.
Thus, not on all invoices received from carriers, the importer can, without risks, accept the VAT indicated there for deduction.
But do not be upset. Perhaps, in some cases, setting the 18% VAT rate by the carrier is justified. If transportation is carried out between points, one of which is located on the territory of the Russian Federation, and the other - outside it, transportation services should be taxed at a rate of 0% (Letter of the Ministry of Finance of Russia dated 07.06.2007 N 03-07-08 / 146). If the transportation is carried out in relation to imported goods, but between two points located on the territory of Russia, the organization is not entitled to apply the zero VAT rate, and such services are subject to VAT at a rate of 18% (Letter of the Ministry of Finance of Russia dated 01.08.2006 N 03-04- 08/169). The same conclusion is contained in the Letter of the Ministry of Finance of Russia dated July 26, 2007 N 03-07-08 / 210. This means that in such cases, the importer can safely and without risks for himself take VAT deductible on invoices received from the carrier.
With regard to the import of goods from Belarus, the procedure for calculating and paying VAT differs from the general one. True, the "special" procedure applies to imported goods produced in the Republic of Belarus.
With regard to goods imported from the Republic of Belarus, one should be guided by the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on the principles of levying indirect taxes on the export and import of goods, the performance of work, the provision of services dated September 15, 2004, or rather, the Annex to it (hereinafter referred to as the Annex ). In accordance with this Agreement, when importing goods from Belarus, the Russian buyer must calculate and pay VAT on this operation.
From sec. 1 of the Appendix it follows that the collection of VAT on goods imported from Belarus is carried out by the tax authorities at the place of registration of taxpayers. Thus, the Russian buyer must pay VAT not at customs (as happens in other cases), but through his tax office.
In this case, the tax base for VAT is determined on the date of registration of imported goods as the sum of the cost of purchased goods (transaction price), including the costs of transportation and delivery of goods (if such costs were not included in the transaction price). These costs are given in paragraph 2 of Sec. I Applications:
Shipping costs, incl. for transportation, loading, unloading, reloading, transshipment and forwarding of goods;
Sum insured;
The cost of containers and (or) other non-returnable non-returnable containers, if they are considered as a whole with the goods being valued;
The cost of packaging, including the cost of packaging materials and packaging work.
The calculated VAT shall be paid to the budget no later than the 20th day of the month following the month in which the imported goods are registered. The question immediately arises: is it really necessary to focus on a month if the tax period for VAT is a quarter?
Since no changes were made to the Regulation, the procedure for paying VAT on the import of goods remained the same: no later than the 20th day of the month following the month of registration of imported goods (clause 5, section I of the Regulation). Not later than this date, taxpayers are also required to submit to the tax authorities the relevant tax returns with the documents prescribed by the Regulations attached (Clause 6, Section I of the Regulations), incl. a separate VAT declaration, filled in in case of import of goods from Belarus (it also needs to be drawn up for the month, not for the quarter).
When importing goods from the Republic of Belarus, a separate tax declaration is filled out in the form and in the manner approved by Order of the Ministry of Finance of Russia dated November 27, 2006 N 153n. Not so long ago, minor changes were made to this form (Order of the Ministry of Finance of Russia dated July 31, 2009 N 83n), mainly related to the appearance of the Protocol between the Government of the Russian Federation and the Government of the Republic of Belarus on the procedure for collecting indirect taxes when performing work, rendering services dated March 23, 2007 , ratified federal law dated 01.04.2008 N 34-FZ.
Along with this declaration, as we have already noted, Russian importers of Belarusian goods must submit the relevant documents. First of all, an application for the import of goods, drawn up in the form approved by the Order of the Ministry of Finance of Russia dated November 27, 2006 N 153n. This application must be completed in triplicate. The first one remains with the tax authority, the second and third are returned to the taxpayer with marks from the tax authority confirming the payment of VAT in full (on the existence of an exemption for goods that, in accordance with the legislation of the state of the party, are not subject to taxation when imported into the customs territory of this state). The organization must send the third copy to the Belarusian supplier of goods so that he can confirm the zero rate.
Moreover, if within one tax period the import of goods from Belarus was carried out under several contracts, the number of applications should be equal to the number of contracts. This is due to the fact that the application form for the import of goods and payment of indirect taxes provides for the reflection in this statement information on goods imported from the territory of the Republic of Belarus and subject to payment of indirect taxes under each contract (question 13 of the Letter of the Federal Tax Service of Russia dated 10.10.2005 N MM-6-03 / [email protected]).
To necessary documents also includes a bank statement (its copy), confirming the actual payment of tax on imported goods. Thus, before submitting a "Belarusian" declaration, the company will first have to pay VAT, so that when submitting the declaration itself, it will have a bank statement confirming the payment of VAT.
You should also submit an agreement (its copy), on the basis of which the goods are imported from Belarus, transport documents confirming the movement of goods from Belarus to Russia, a shipping document of Belarusian taxpayers. At the same time, the norms of the Regulation do not contain a requirement for the presence of a mark of the tax authority of the Republic of Belarus on the shipping document of the Belarusian taxpayer submitted by the taxpayer, in connection with which it is presented without any marks of the tax authorities of the Republic of Belarus (question 14 of the Letter of the Federal Tax Service of Russia dated 10.10.2005 N MM- 6-03/ [email protected]).
After paying VAT, a Russian buyer applying common system taxation, may deduct this VAT if goods imported from Belarus are used in transactions subject to VAT. More details on the application of the deduction are explained in the Letter of the Federal Tax Service of Russia dated 02.03.2005 N MM-6-03 / [email protected]: taxpayers importing goods from Belarus are entitled to apply tax deductions if the following conditions are met:
When registering goods imported into the territory of the Russian Federation (taking into account the specifics provided for by Article 172 of the Tax Code of the Russian Federation) on the basis of the relevant primary documents;
When using imported Russian territory goods for carrying out transactions subject to value added tax;
If there are documents confirming the actual payment to the budget of the amount of value added tax on goods imported into the territory of Russia: applications for the import of goods with a mark from the tax authority on the payment of tax at the place of registration of the taxpayer, tax return, which reflects the amount of VAT calculated for payment to the budget on the relevant imported goods, and a payment document for transferring the amount of VAT indicated in this tax declaration to the budget.
An organization applying the "simplified system" is not exempt from paying VAT when importing goods into the customs territory of the Russian Federation (clause 2, article 346.11 of the Tax Code of the Russian Federation). This rule also applies to the import of goods into Russia from the Republic of Belarus (clause 1, section I of the Regulations). The procedure for calculating and paying VAT "simplified" is the same as under the general taxation regime.
However, unlike an organization applying the general regime, a "simplifier" will not be able to accept the paid VAT for deduction in accordance with the norms of the provisions of Ch. 21 of the Tax Code of the Russian Federation. This conclusion is also contained in the Letter of the Federal Tax Service of Russia dated 10.10.2005 N MM-6-03 / [email protected](question 2): "Consequently, since persons who have switched to paying agricultural tax, a single tax on imputed income, a simplified taxation system, as well as persons exempted from fulfilling the duties of a taxpayer in accordance with Article 145 of the Code, are not recognized as payers of value added tax cost, then they do not have the right to deduct the amounts of tax paid when importing goods into the Russian Federation from the territory of the Republic of Belarus.
On the other hand, the “simplifier” can include the amount of VAT paid on the importation of goods into expenses on the basis of paragraphs. 8 p. 1 art. 346.16 of the Tax Code of the Russian Federation. The possibility of including such VAT in the expenses of the "simplified" is also confirmed in the Letter of the Ministry of Finance of Russia dated 07.07.2005 N 03-04-08 / 174.
The import of goods is understood as their import into the customs territory of Russia from abroad without an obligation to re-export. The fact of import is recorded at the moment the goods cross the customs border of the Russian Federation.
If an organization purchases goods outside the Russian Federation, then when importing such goods at customs, it will be necessary to pay VAT. One of the features of this tax is that it is levied as a regular tax and as a customs payment.
VAT payers at customs are persons recognized as taxpayers in connection with the movement of goods across the customs border of the Russian Federation and determined in accordance with the Customs Code of the Russian Federation. That is, when referring economic entities to this category, it is necessary to be guided by the norms of customs law.
Attention!
According to the Tax Code of the Russian Federation, when goods are imported into the territory of the Russian Federation, VAT at customs may not be paid if:
Goods are imported from the list contained in the Tax Code of the Russian Federation;
Implementation of import operations from the Republic of Belarus.
The norms of Chapter 21 "Value Added Tax" of the Tax Code of the Russian Federation in relation to import operations contain several features.
Firstly, when carrying out operations for the import of goods, the procedure and terms for paying VAT are somewhat different from the usual ones. Since when importing goods from abroad this tax acts as a customs payment, the VAT payer must be guided by the norms of customs law and act in accordance with the Order of the State Customs Committee of the Russian Federation dated February 7, 2001 No. 131 “On Approval of the Instruction on the Procedure for the Application of VAT by the Customs Authorities of the Russian Federation in Respect of Goods Imported into the Territory of the Russian Federation” . Paragraph 24 of this document reads as follows:
When goods are imported into the territory of the Russian Federation, value added tax is paid before or simultaneously with the acceptance of the customs declaration.
If the customs declaration was not filed within the period established by the Customs Code of the Russian Federation, then the terms for payment of value added tax are calculated from the date of expiration of the established period for filing the customs declaration.
According to Article 171 of the Customs Code of the Russian Federation:
The customs declaration is submitted within the time limits established by the State Customs Committee of the Russian Federation. These periods may not exceed 15 days from the date of presentation of the goods and Vehicle transporting goods to the customs authority of the Russian Federation.
Thus, until VAT is paid at customs, customs officers will not return the goods. In addition, if the VAT payer at the customs did not pay VAT within 15 days from the date of receipt of the goods at the customs, the customs authorities have the right to charge penalties.
Example.
Azimut LLC imports technological equipment from Japan. The goods entered the customs territory of the Russian Federation on January 17, 2003. The organization did not have time to file a customs declaration and pay VAT. In accordance with the Customs Code of the Russian Federation, the deadline for filing a declaration expired on January 31, 2003, therefore, starting from February 1, 2003 and until the moment when Azimut LLC pays VAT, customs will calculate penalties for late payment.
Secondly, when determining the amount of tax, it is necessary to be guided by the Tax Code of the Russian Federation and the provisions of the above-mentioned Instruction of the State Customs Committee of the Russian Federation. According to the Tax Code of the Russian Federation:
When importing goods (with the exception of goods specified in paragraphs 3 and 5 of this article, and taking into account Articles 150 - 152 of this Code) into the customs territory of the Russian Federation, it is determined as the amount of:
1) the customs value of these goods;
2) payable customs duty;
3) payable excises (on excisable goods and excisable mineral raw materials).
2. When importing into the customs territory of the Russian Federation products of processing of goods previously exported from it for processing outside the customs territory of the Russian Federation in accordance with the customs regime for processing outside the customs territory, the tax base is determined as the cost of such processing.
3. The tax base is determined separately for each group of goods of the same name, type and brand imported into the customs territory of the Russian Federation. If one consignment of goods imported into the customs territory of the Russian Federation contains both excisable goods (excisable mineral raw materials) and non-excisable goods and mineral raw materials, the tax base is determined separately for each group of these goods. The tax base is determined in a similar manner if the consignment of goods imported into the customs territory of the Russian Federation contains products of processing of goods previously exported from the customs territory of the Russian Federation for processing outside the customs territory of the Russian Federation.
4. If, in accordance with an international treaty of the Russian Federation, customs control and customs clearance of goods imported into the territory of the Russian Federation are abolished, the tax base is determined as the sum of:
the cost of purchased goods, including the cost of delivering these goods to the border of the Russian Federation;
payable excises (for excisable goods and excisable mineral raw materials).
Thus, based on the provisions of tax and customs legislation, when calculating the VAT that must be paid at customs, in relation to goods subject to customs duties and excises, the following formula can be used: Snds \u003d (St + Ps + Ac) x H (1), where SNDs - the amount of value added tax; St - the customs value of the imported goods; PS - the amount of import customs duty; Ac - excise amount; H is the value added tax rate as a percentage.
If goods are imported from abroad that are exempt from customs duties, but subject to excises, then the following formula will be used when calculating VAT: Snds \u003d (St + Ac) x H (2).
If goods are imported that are subject to customs duties, but exempt from excises, then the formula will look like this: Snds \u003d (St + Ps) x H (3).
If the goods are exempt from customs duties and excises, then the formula is applied: Snds \u003d St x H (4).
Tax rates for imported goods are established in the same manner as in Chapter 21 of the Tax Code of the Russian Federation.
Example.
Azimut LLC, under a contract with a German company, imports a batch of natural wine (2,000 bottles of 0.75 liters) into Russia. The contract amount is 15,000 US dollars. The goods crossed the Russian border on January 17, 2003. On January 18, Azimut LLC submitted a customs declaration. Simultaneously with the submission of the declaration, he must pay customs duties, customs duties, VAT and the amount of excise at the customs. On January 20, Azimut LLC transferred the payment to the German side. We will not consider the amount of fees charged for customs clearance, as it does not affect the calculation of the amount of VAT.
Assume that the rate of customs duty on wine is 20% of the value of the contract, the excise rate is 4 rubles per 1 liter, the exchange rate of the Central Bank of the Russian Federation: January 17 - 31.80 rubles / USD; January 18 - 31.78 rubles / dollar; January 20 – 31.75 RUB/USD
Then the amount of customs duty that Azimut LLC will pay at customs:
$15,000 x 20% x RUB 31.78/$ = 95,340 rubles.
Excise amount: 2000 bottles x 0.75 l x 4 rubles / liter = 6000 rubles.
The VAT rate for this product is 20%, and it is not exempt from customs duties and excises, therefore, in order to calculate the amount of VAT payable at customs, we will use formula 1: (15,000 USD X 31.78 RUB / USD + RUB 95,340 + RUB 6,000) x 20% = RUB 115,608
The following entries will be made in the accounting records of Azimut LLC when calculating VAT payable:
Debit 41 "Goods" Credit 60 "Settlements with suppliers and contractors" - $ 15,000 x 31.80 rubles / $. - 477,000 rubles.
Attention! When calculating VAT payable at customs, it is necessary to make the following entries:
Debit 19 “Value Added Tax” Credit 68 “VAT Calculations” - 115,608 rubles;
Debit 68 “VAT settlements” Credit 51 “Settlement account” - 115,608 rubles. - VAT paid at customs.
Debit 60 “Settlements with suppliers and contractors” Credit 52 “Currency account” - 476,250 rubles ($ 15,000 x 31.75 rubles / dollar) - the cost of goods was paid to the supplier;
Debit 60 "Settlements with suppliers and contractors" Credit 91-1 "Other income" - 750 rubles. (USD 15,000 x (RUB 31.80/USD - RUB 31.75/USD)) - reflected positive.
Forming the initial cost of the goods, the accountant of Azimut LLC will take into account the amount of excise paid at customs, customs duty and the cost of customs fees. These are the requirements of PBU 5/01 “Accounting for inventories”, approved by Order of the Ministry of Finance of the Russian Federation dated June 9, 2001 No. 44n.
Thirdly, VAT paid by a Russian taxpayer can be deductible. This right of the taxpayer is enshrined in the Tax Code of the Russian Federation:
2. Tax amounts presented to a taxpayer and paid by him when acquiring goods (works, services) on the territory of the Russian Federation or paid by a taxpayer when importing goods into the customs territory of the Russian Federation under the customs regimes of release for free circulation, temporary importation and processing outside the customs territory are subject to deductions. in a relationship:
1) goods (works, services) purchased for carrying out transactions recognized as objects of taxation in accordance with this Chapter, with the exception of goods provided for in paragraph 2 of Article 170 of this Code;
2) goods (works, services) purchased for resale.
Thus, if the requirements of tax legislation are met in relation to further transactions related to goods imported into the territory of Russia, then the “input” VAT paid at customs can be reimbursed from the budget. In this case, the documents confirming the right of the taxpayer to deduct VAT will be a foreign economic agreement (contract), an invoice (account) of a foreign counterparty and a cargo customs declaration, which records the amount of VAT paid by the importer at customs (column 47).
Attention!
When carrying out operations for the import of goods, having paid the amount of VAT at the customs, he must make an entry in the purchase book. The basis for registration of invoices in the book of purchases is the customs declaration for imported goods and payment documents confirming the actual payment of NLS to the customs authority. This requirement is enshrined in paragraph 10 of Decree of the Government of the Russian Federation of December 2, 2001 No. 914 "Rules for keeping registers of received and issued invoices, purchase books and sales books when calculating value added tax." Thus, VAT can be deducted in the tax period when the goods purchased under the import transaction were credited by the purchasing company. In this situation, there is no tax legislation requirement to pay for these goods to the counterparty, because the importer pays VAT not to the supplier, but directly to the customs authority.
Fourth, tax law provides for cases where VAT paid at customs is not deductible, but is included in the cost material resources Tax Code of the Russian Federation):
The amounts of tax presented to the buyer when purchasing goods (works, services), including fixed assets and intangible assets, or actually paid when importing goods, including fixed assets and intangible assets, into the territory of the Russian Federation, are taken into account in the cost of such goods (works, services), including fixed assets and intangible assets, in the following cases:
1) acquisition (importation) of goods (works, services), including fixed assets and intangible assets used for operations for the production and (or) sale (as well as transfer, performance, provision for own needs) of goods (works, services) not subject to taxation (exempted from taxation);
2) acquisition (importation) of goods (works, services), including fixed assets and intangible assets used for operations for the production and (or) sale of goods (works, services), the place of sale of which is not recognized as the territory of the Russian Federation;
3) acquisition (importation) of goods (works, services), including fixed assets and intangible assets, by persons who are not taxpayers in accordance with this chapter or who are exempted from fulfilling the obligations of a taxpayer to calculate and pay tax;
4) acquisition (importation) of goods (works, services), including fixed assets and intangible assets, for the production and (or) sale of goods (works, services), the sale (transfer) operations of which are not recognized as the sale of goods (works, services) in accordance with paragraph 2 of Article 146 of this Code.
Thus, if during import operations at least one of these provisions takes place, then in this case the VAT paid at customs will be taken into account in the cost of imports.
Example.
Azimut LLC carries out retail sales of household appliances. This type activities are subject to Chapter 26.3 of the Tax Code of the Russian Federation "The system of taxation in the form of a single tax on imputed income for certain types of activities." This means that Azimut LLC is not a VAT payer, since this simplified taxation regime replaces part of the taxes paid by taxpayers in the regular system accounting, ENVD.
Suppose Azimut LLC entered into a contract with a German company for the supply of a batch of household appliances intended for resale. total cost contract - 10,000 US dollars. The goods entered customs on February 15, 2003. The contract stipulates that the ownership of the goods to the Russian side passes at the time of registration of the cargo customs declaration. Azimut LLC submitted the declaration on February 17 and at the same time paid the amounts of fees for customs clearance, customs duty and VAT. The amount of customs duty was 63,060 rubles, the amount of VAT paid at customs was 75,672 rubles, the amount of customs duty was 631 rubles. On February 20, Azimut LLC paid for the delivery of the goods.
The exchange rate of the Central Bank of the Russian Federation was: on February 15 - 31.50 rubles / dollar; February 17 - 31.53 rubles / dollar; February 20 - 31.70 RUB/USD
The accountant of Azimut LLC must reflect these transactions in the accounting as follows:
Debit 41 "Goods" Credit 60 "Settlements with suppliers and contractors" - 315,300 rubles (10,000 dollars x 31.53 rubles / dollars) - reflects the transfer of ownership of the goods from a foreign supplier to the Russian side;
Debit 19 “Value Added Tax Credit 68 “VAT Calculations” - 75,672 rubles. - VAT is charged, payable at customs;
Debit 41 "Goods" Credit 76 "Settlements with customs" - 63,691 rubles. – the amounts of customs duties and fees for customs clearance are included in the cost of goods;
Debit 68 “VAT settlements” Credit 51 “Settlement account” - 75,672 rubles. - VAT is transferred;
Debit 76 "Settlements with customs" Credit 51 "Settlement account" - 63,691 rubles. - the amount of customs fees and customs duties has been transferred;
Debit 41 "Goods" Credit 19 "Value Added Tax" - 75,672 rubles. – VAT paid at customs is included in the cost of imported goods.
Debit 60 “Settlements with suppliers and contractors” Credit 52 - 317,000 rubles. ($10,000 x 31.70 rubles/$) - paid for goods to a foreign partner;
Debit 91-2 "Other expenses" Credit 60 "Settlements with suppliers and contractors" - 1700 rubles. 10,000 x (RUB 31.70/USD - RUB 31.53/USD) - reflects a negative exchange rate difference.
A VAT tax agent is obliged to calculate, withhold and pay value added tax to the budget when transferring funds to a foreign partner (clause 4 of article 173 and clause 4 of article 174 of the Tax Code of the Russian Federation).
If a Russian organization or an individual entrepreneur purchases works or services from a foreign company, then The obligations of tax agents for VAT arise when two conditions are met simultaneously:
The exception is foreign companies registered on the website of the Federal Tax Service of the Russian Federation as VAT payers when providing “Internet services” individuals on the territory of the Russian Federation (clause 4.6 of article 83 of the Tax Code of the Russian Federation, clause 2 of article 161 of the Tax Code of the Russian Federation). The list of such services is given in clause 1 of article 174.2 of the Tax Code of the Russian Federation.
When purchasing “Internet services”, Russian buyers are not tax agents only if the services are provided through a separate subdivision of a foreign organization located on the territory of the Russian Federation, i.e. when the foreign company is “physically” registered with the Russian tax office.
If a foreign company (non-resident) is registered only on the website of the Federal Tax Service of the Russian Federation, organizations and individual entrepreneurs who purchase "Internet services" from it, until January 1, 2019, will have to act as a VAT tax agent (clause 2 of article 161 and clause 9 article 174.2 of the Tax Code of the Russian Federation).
From January 1, 2019, a foreign organization providing services in electronic form will have to register on the website of the Federal Tax Service of the Russian Federation not only in the case of providing “Internet services” to individuals, but also legal entities(clause 4.6 of article 83 of the Tax Code of the Russian Federation as amended by the Federal Law of November 27, 2017 N 335-FZ from 01/01/2019). That is, from 01/01/2019, she herself will pay VAT to the budget and present it to her customers.
Such amendments have been made to Art. 161 and 174.2 of the Tax Code of the Russian Federation Federal Law of November 27, 2017 N 335-FZ "On Amendments to Parts One and Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation".
The duties of tax agents arise even for non-payers of VAT, for example, for individual entrepreneurs or organizations using the simplified tax system (clause 2, article 161 of the Tax Code of the Russian Federation)!
Thus, if works (services) are purchased from representative offices of foreign companies registered with the tax authorities in the territory of the Russian Federation, the Russian buyer is NOT a tax agent for VAT.
If works and services are purchased from a non-resident company, a Russian organization (or individual entrepreneur) purchasing such services (works) must act as a VAT tax agent only if the place of sale of services (works) is the territory of the Russian Federation.
To determine the place of implementation correctly, you need to figure out which document to use. And it depends on the taxpayer of which state the contract is concluded.
If the partner of a Russian organization or individual entrepreneur is a taxpayer of the EAEU member states (Belarus, Kazakhstan, Armenia, Kyrgyzstan), then the place of sale of services (works) must be determined in accordance with Appendix No. 18 to the Treaty on the Eurasian Economic Union of May 29, 2014 (hereinafter - Protocol), since international treaties have priority over the norms of the Tax Code of the Russian Federation (Article 7 of the Tax Code of the Russian Federation).
In other cases of concluding agreements with foreign partners, the place of sale of services (works) is determined in accordance with Article 148 of the Tax Code of the Russian Federation.
The place of sale of services depends on the type of services provided (performance of works)!
Here are some examples of determining the place of sale of services (works) for VAT purposes.
For real estate services:
Place of sale of services related to real estate (except for air, sea vessels and inland navigation vessels, as well as space objects) is determined by its location.
In other words, if a foreign organization performs construction and installation work on the construction of real estate in the territory foreign state or leases real estate located abroad, then the territory of the Russian Federation is not a place for the sale of such services, which means that the Russian customer or tenant is not a tax agent for VAT (clause 1 clause 1 and clause 1 clause 1.1 article 148 of the Tax Code RF, paragraph 2 and paragraph 1, paragraph 29 of the Protocol).
For services related to movable property:
The place of supply of services related to movable property (in particular, installation, assembly, processing, processing, repair and maintenance) is determined by the location of the property. So, if, for example, a foreign company repairs equipment ( movable property) located on the territory of a foreign state, then the territory of the Russian Federation is not a place for the implementation of such works (clause 2, clause 1.1, article 148 of the Tax Code of the Russian Federation, clause 2, clause 29 of the Protocol).
But if specialists of a foreign company go to Russian client and make repairs on the territory of the Russian Federation - the Russian customer has the duties of a tax agent for VAT, since the place of sale of such services will be the territory of the Russian Federation (clause 2, clause 1, article 148 of the Tax Code of the Russian Federation, clause 2, clause 29 of the Protocol).
For services in the field of culture, art, education (training), physical culture, tourism, recreation and sports:
If the services are actually provided on the territory of the Russian Federation, then the place of their sale is the Russian Federation (clause 3, clause 1, article 148 of the Tax Code of the Russian Federation, clause 3, clause 29 of the Protocol). And vice versa. For example, when conducting training abroad, a Russian buyer does not have the duties of a tax agent for VAT.
For the services of a foreign carrier (NOT an EAEU taxpayer):
The place of sale of such services will be the territory of the Russian Federation only if the point of departure and destination are located on the territory of the Russian Federation, i.e. if an agreement has been concluded with a foreign carrier for the carriage of goods through the territory of the Russian Federation. The exception is services for the transportation of passengers and baggage provided by foreign persons not through the permanent establishment of this foreign person (clause 4.1 clause 1, clause 5 clause 1.1 article 148 of the Tax Code of the Russian Federation).
But if the transportation agreement is concluded with the taxpayer of the state - a member of the EAEU, the place of sale will be considered the territory of this state of the EAEU. That is, when concluding a contract for the carriage of goods with a taxpayer from Belarus, Kazakhstan, Armenia or Kyrgyzstan, a Russian organization should not act as a tax agent for VAT, regardless of the route of such a carrier (clause 5, clause 29 of the Protocol).
The place of sale of many services (works) is determined "according to the buyer", i.e. the place of their sale is the territory of the Russian Federation, if the buyer - Russian taxpayer. Thus, a Russian organization or individual entrepreneur will become a tax agent for VAT if it purchases from a foreign company services for the transfer and granting of patents and licenses, consulting, legal, accounting, auditing, engineering, advertising, marketing services, information processing services, incl. h. via the Internet. (clause 4, clause 1, article 148 of the Tax Code of the Russian Federation and clause 4, clause 29 of the Protocol).
Also, “according to the buyer”, the place of sale of services for the transfer of rights to computer programs, including via the Internet (clause 4, clause 1 and clause 2, article 148 of the Tax Code of the Russian Federation and clause 4, clause 29 of the Protocol) is determined. That is, if a Russian organization or individual entrepreneur acquires the rights to computer programs from a foreign company, the place of sale of such services is the territory of the Russian Federation.
In the case when the transfer of rights to computer programs is carried out on the basis of a license (sublicense) agreement, including via the Internet, it is not necessary to pay VAT. Such an operation is exempt from VAT in accordance with clause 26, clause 2, article 149 of the Tax Code of the Russian Federation (Letters of the Ministry of Finance of the Russian Federation dated 21.10.2014 N 03-07-03/52967, dated 01.02.2016 N 03-07-08/4141, dated 07/11/2012 No. 03-07-08/177).
For the services of foreign intermediaries (agents, commission agents):
The territory of the Russian Federation is not a place for the sale of services of such intermediaries who sell or assist in the sale of goods (works, services) Russian companies or individual entrepreneurs, as well as acquiring goods (works, services) for the Russian committent or principal on their own behalf. Accordingly, when acquiring such services, the Russian committent or principal will not act as a tax agent for VAT (clause 2, article 148 of the Tax Code of the Russian Federation, clause 5, clause 29 of the Protocol).
If a foreign organization performs (renders) several types of works (services) and the implementation of some works (services) is of an auxiliary nature in relation to the implementation of other works (services), the place of implementation of auxiliary works (services) is recognized as the place of implementation of the main works (services). ) (clause 3, article 148 of the Tax Code of the Russian Federation, clause 33 of the Protocol).
Documents confirming the place of performance of work (rendering of services) are (clause 4, article 148 of the Tax Code of the Russian Federation, clause 30 of the Protocol):
When purchasing works or services, a tax agent must calculate and pay VAT to the budget when transferring money to a foreign company (Letter of the Ministry of Finance of Russia dated 01.21.2015 N 03-07-08 / 1467), i.e.:
The tax agent who purchases services (works) must transfer the calculated and withheld VAT to the budget simultaneously with the payment (transfer) of funds when working with foreign partners.
Moreover, the bank servicing the tax agent is not entitled to accept from him an instruction to transfer funds in favor of the specified taxpayers, if the tax agent has not also submitted to the bank an instruction to pay tax from an account opened with this bank if there are sufficient funds to pay the entire amount of tax ( Clause 4, Article 174 of the Tax Code of the Russian Federation).
The tax base is defined as the amount of income from the sale of these services, including Russian VAT (clause 1, article 161 of the Tax Code of the Russian Federation). The VAT rate is 18/118 (clause 4, article 164 of the Tax Code of the Russian Federation).
As a rule, foreign companies do not include the amount of Russian VAT in the cost of their services (works), making a reservation that their cost does not include indirect taxes paid in accordance with the legislation of the Russian Federation. In this case, in order to determine the tax base for VAT, the tax agent needs to increase the value specified in the contract by the amount of VAT, i.e. charge 18% over the cost of services (works).
You can also do if about Russian VAT ( indirect tax) there is no mention at all in the foreign contract (Letters of the Ministry of Finance of Russia dated 05.06.2013 N 03-03-06 / 2/20797, dated 08.09.2011 N 03-07-08 / 276, dated 04.02.2010 N 03-07-08 / 32, Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 3, 2012 N 15483/11).
Example: the contract stipulates that the cost of services is 100 euros, excluding VAT. In this case, the amount of income from sales, from which the tax agent will have to withhold VAT, will be 118 euros (100 euros + 100 euros x 18%).
If settlements with a foreign company are made in foreign currency, the tax base for VAT in rubles must be determined at the rate of the Central Bank of the Russian Federation in force on the date of payment for services, works (as of the date of actual implementation of expenses) (clause 3 of article 153 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated 01.21.2015 N 03-07- 08/1467).
The VAT tax agent, when calculating the tax, must draw up an invoice, taking into account the requirements of paragraphs. 5 and 6 Art. 169 of the Tax Code of the Russian Federation (paragraph 2, clause 3, article 168 of the Tax Code of the Russian Federation). Despite the fact that there is no deadline for issuing an invoice for a tax agent by the norms of the Tax Code of the Russian Federation, it is better to do this within five calendar days from the date of transfer of money to a foreign partner (preliminary payment or payment for registered services (works).
This is the opinion of the tax authorities (Letter of the Federal Tax Service of Russia dated August 12, 2009 N ShS-22-3 / [email protected]@) - this document posted on the official website of the Federal Tax Service of Russia in the section "Explanations of the Federal Tax Service, mandatory for use by the tax authorities")).
When purchasing works and services, the “agency” invoice must indicate:
on line 5- the number and date of the "payment" for the transfer of VAT to the budget. (clause “h” clause 1 of the Rules for filling out an invoice used in calculating value added tax, approved by Decree of the Government of the Russian Federation of December 26, 2011 N 1137 (hereinafter referred to as the Rules for filling out an invoice and Resolution N 1137, respectively).
in lines 2 and 2a- full or abbreviated name and location of the foreign seller in accordance with the agreement concluded with the foreign counterparty (paragraph 2, paragraph “c”, paragraph 2, paragraph “d”, paragraph 1 of the Rules for filling out an invoice).
in line 2b (TIN / KPP of the seller) a dash is put (paragraph 2, paragraph “d”, paragraph 1 of the Rules for filling out an invoice).
The remaining indicators of invoices are filled in in the usual manner. The only thing that still needs to be remembered is the VAT rate for tax agents 18/118. Therefore, if a Russian buyer-tax agent independently calculated the tax base for VAT, adding 18% over the cost of services, in column 7 of the invoice, you must indicate the estimated tax rate 18/118 (clause 4 of article 164 of the Tax Code of the Russian Federation), and in column 9 - the cost of services, including VAT. Column 5 indicates the cost of paid services excluding VAT (the difference between columns 9 and 8) (See also the letter of the Federal Tax Service of Russia dated 12.08. [email protected]).
The issued invoice must be registered in the sales book, in the quarter when the obligation to pay VAT arose (that is, on the day the money was transferred to the foreign partner), regardless of the date of its issuance (clause 2, clause 3 and clause 15 of the Rules for maintaining the sales book used in the calculation of value added tax, approved by Decree N 1137, Letter of the Ministry of Finance of Russia dated December 16, 2015 N 03-07-11 / 73742). When filling out the sales book, in column 2 “Operation type code”, you must specify the code “06” (Order of the Federal Tax Service of Russia dated March 14, 2016 N ММВ-7-3 / [email protected]).
If the tax agent is a VAT payer and foreign services (works) are purchased for taxable transactions, VAT paid to the budget (including at its own expense) can be deducted (clause 3 of article 171 and clause 1 of article 172 Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated May 18, 2015 N 03-07-08 / 28428).
But the deduction can be made only after the registration of the work (services) performed and if there are relevant primary documents (confirming the fact of their registration) (Letter of the Federal Tax Service of the Russian Federation dated 12.08.2009 N ShS-22-3 / [email protected] and Decision of the Supreme Arbitration Court of the Russian Federation of September 12, 2013 N 10992/13, see also Letter of the Ministry of Finance of the Russian Federation of October 23, 2013 N 03-07-11 / 44418). That is, the tax agent is not entitled to claim for the deduction of the VAT withheld by him when transferring the prepayment until the services are rendered (works are completed).
Example. On June 15, 2018, a Russian organization transferred a 50% advance payment to a foreign company as payment for advertising services. The services were rendered on 07/01/2018. The final payment for the services was made on 07/04/2018. According to the terms of the contract, the cost of services does not include VAT and amounts to 1000 euros.
Assume that the euro exchange rate is:
as of June 15, 2018 - 73 rubles.
07/04/2018 - 72 rubles.
Since the services were provided in the 3rd quarter of 2018, the VAT paid to the budget when transferring funds to a foreign partner can be deducted by the tax agent in the 3rd quarter of 2018. I.e. in the VAT return for the 3rd quarter of 2018, he will declare deductible: 6570 rubles. (VAT paid when transferring an advance in the 2nd quarter) and 6480 rubles (VAT paid when transferring the final payment for services).
According to the Ministry of Finance of the Russian Federation, a tax agent is not entitled to postpone the VAT deduction to a later period, i.e. the deduction of "agency" VAT must be declared in the quarter in which the right to deduction arose (Letters of the Ministry of Finance of Russia dated November 17, 2016 N 03-07-08 / 67622, dated October 17, 2017 N 03-07-11 / 67480).
When accepting the “agency” VAT for deduction, the invoice issued is registered in the purchase book, and in column 2 “Operation type code”, the code “06” must be indicated (Order of the Federal Tax Service of Russia dated 14.03.2016 N ММВ-7-3 / [email protected]).
If services are purchased for the activity specified in clause 2 of Article 170 of the Tax Code of the Russian Federation (i.e. for non-taxable activities or by a VAT non-payer), then the "agency" VAT is not deductible, but is taken into account in the cost of purchased services, i.e. is taken into account in income tax expenses (clause 2, article 170 of the Tax Code of the Russian Federation), or when application of the simplified tax system with the object "income-expenses" or ESHN (if such expenses are provided for by the norms of the Tax Code of the Russian Federation).
Tax agents - VAT payers tax authority a regular VAT return, including section 2 “The amount of tax payable to the budget, according to the tax agent” in it. Section 2 of the Declaration is completed separately for each to a foreign person. Tax deduction"agency" VAT is reflected in line 180 of section 3 of the tax return.
Tax agents who are not VAT payers are also required to submit to the tax authorities at the place of their registration the relevant VAT tax return no later than the 25th day of the month following the quarter in which the payment was transferred (paragraph 2, clause 5 article 174 of the Tax Code of the Russian Federation).
Moreover, the declaration can be submitted in paper form (clause 5, article 174 of the Tax Code of the Russian Federation), although in practice such a declaration surprises tax inspectors.
Tax agents who are NOT VAT payers (using the USN, ESHN, UTII, PSN, as well as those exempted from fulfilling the duties of a taxpayer in accordance with Articles 145 and 145.1 of the Tax Code of the Russian Federation) fill in the VAT declaration title page and section 2 of the declaration. In the absence of indicators for filling in section 1 of the declaration, dashes are put in its lines.
At the same time, the code “231” is indicated in the title page for the requisite “at the location (accounting)” (clause 3 of the Procedure for filling out a VAT tax return, approved by Order of the Federal Tax Service of Russia of October 29, 2014 N ММВ-7-3 / [email protected](hereinafter - the Procedure for filling out the declaration).
It is clear that the “agency” invoices drawn up when transferring payment to a foreign partner for VAT payers should be reflected in Section 9 of the VAT return (data from the sales book), and when accepting this tax for deduction - in Section 8 of the declaration (data from the shopping book).
Is a VAT non-payer who applies special regimes, for example, “simplified”, obliged to include Section 9 of the declaration (data from the sales book) in the VAT return?
Formally, there is no such obligation. As already mentioned, the Procedure for filling out the declaration requires such withholding agents to include in the declaration only the title page, Section 1 and Section 2 (clause 3 of the Procedure for filling out a tax return). Moreover, despite the fact that all tax agents, purchasing works or services from foreign partners are required to issue invoices (clause 3 of article 168 of the Tax Code of the Russian Federation), the obligation to keep a sales book is established only for VAT taxpayers (clause 3 of article 169 of the Tax Code of the Russian Federation).
Thus, according to the author, "special regimes" acting as a VAT tax agent do not have the obligation to keep a sales book and fill out Section 9 of the VAT return. But many experts think otherwise. We have not been able to find any official explanation.
One thing is for sure: the tax authorities will not make claims if a non-paying VAT tax agent includes an “extra” section 9 in the VAT return and reflects the issued “agency” invoice in it.
A tax agent purchasing works (services) from a foreign partner must reflect in the VAT return only those amounts (tax base) that he transferred to the foreign partner. At the same time, line 060 reflects the amount of VAT payable to the budget by the tax agent (clause 37.6 of the Procedure for filling out the declaration).
Line 070 reflects the code of the transaction carried out by tax agents. Code 1011713 is indicated by tax agents who purchase so-called “Internet services” from foreign organizations, i.e. services specified in paragraph 1 of Article 174.2 of the Tax Code of the Russian Federation (advertising on the Internet, granting rights to use programs via the Internet, website support, etc.) value added, approved by Order of the Federal Tax Service of Russia dated October 29, 2014 N ММВ-7-3/ [email protected]).
And all the other "ordinary" tax agents, i.e. acquiring works and services NOT related to "Internet services" indicate the code 1011712 - in case of settlements with a foreign company in cash, and in non-cash settlements - code 1011711.
We have considered only the main issues, the calculation and payment of VAT by tax agents who purchase works and services from foreign companies. If, in practice, tax agents encounter any difficulties associated with the calculation of taxes, Pravovest Audit specialists will be happy to help in resolving issues.
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Customs VAT is a payment that is regulated by the legislation of the EAEU. It is taken by the customs authorities for products transported across the customs border. In each country that is a member of the Eurasian Union, the tax has its own characteristics, despite attempts to harmonize laws. Features of the customs fee is that it was created to protect the domestic manufacturer.
According to the established rules, payers who pay VAT on imports can declare a deduction in the declaration. Granting a VAT refund when importing into Russia depends on whether the payer has collected all the necessary documentation.
Subject to these criteria, it is possible to refund VAT on imports for goods imported into the Russian Federation:
If the importer is an entity that is exempt from VAT upon import, or operates under a special regime, then the deduction cannot be applied. Information about incoming products or works is recorded in the purchase book, which displays the amount of tax.
To make a deduction, you must collect the appropriate documentation package, which includes trade contract with a foreign supplier, an invoice, as well as a copy of the customs declaration, their bank statement. It is recommended to keep the documentation that substantiates the deduction claim for at least 4 years.
Import VAT may be subject to different rates. The VAT rate of 0% applies to goods such as humanitarian aid, which is free of charge, items of technical equipment that are not produced in the country and member states of the CU.
Import of goods that are medical, which are listed in the Tax Code of the Russian Federation, is also carried out at a zero rate. This also applies to the values of the cultural industry, which are donated to the objects of the Russian Federation or bought at the expense of the budget. Valuables that are imported on the basis of exchange with other states are not taxed.
The list of goods imported at a reduced rate includes precious stones that have not been processed, products obtained in other countries of the country's business entity, facilities for organizing the Olympic Games, and goods for the astronautics industry. This list is periodically amended.
Some food, medical products, as well as products for children are taxed at a rate of 10%. If the imported products do not fall under the list of preferential, the rate will be standard and will be 20%.
There are some nuances when importing services and works. Services that are performed by a foreign company are considered imported. If the organization providing services is not registered in the Russian Federation, the payment is made by the person who buys these services.
The VAT rate for the import of goods into the territory of the Russian Federation can be zero, and also be 10 or 20%. If the product does not belong to the one for which you need to make a deduction, then the calculation process will depend on the country of destination. There are some differences when importing products from the countries of the Eurasian Union and importing from other states.
VAT on the import of goods into the territory of the Russian Federation when trading between the EAEU countries is calculated quite simply. Payments for the importation of goods are made to the TO account.
It is necessary to determine the cost of the batch, add the excise tax (if any) to the obtained indicator. The time of formation of the tax base will be the day when the products were imported or credited according to the warehouse. To calculate the tax, you need to multiply the cost of the goods by the tariff used. For the quarter when the goods were imported, you need to submit a declaration.
VAT on imports from countries that are not members of the EAEU is paid differently. Payment of import VAT must occur before the release of products, that is, before the implementation of the customs clearance procedure.
VAT is calculated at a preferential or basic rate, the calculation takes into account the cost of goods, the presence of excise duty. If excises and duties are not charged, the tax is calculated by multiplying the value of the goods by the applicable tariff.
For VAT on imports, the entries that are used in accounting will not be different. When calculating VAT when importing goods, the display goes like this - DT 19 KT 68. If a payment is made on it - DT 68 KT 51. When deductions are accepted, the posting will be DT 68 KT 19.
However, according to the dates of the transactions, the differences in transactions that are associated with states that are not part of the EAEU and member countries will be significant. For example, if the country is not a member of the EAEU, transactions will be carried out at the time of release of goods in the Russian Federation. Otherwise, in the month following the month of importation, if the tax authority has accepted the reporting related to imports from the countries of the Eurasian Union.
The VAT declaration at customs for imported goods from the EAEU countries to the Russian Federation is submitted by organizations and individual entrepreneurs, including persons on a special regime who are exempt from tax payments.
Organizations submit a declaration to the fiscal authority at the place of registration (at the location). Individual entrepreneurs submit declarations at their place of residence. The document shall be submitted no later than the 20th day of the month following the month in which imported products are registered. If the deadlines for submitting documents are violated, a fine is charged.
Along with the declaration, it may be necessary to submit additional documents - an application, a bank statement, a contract for the purchase of products.
According to existing rules, payers who have paid import VAT (value added) have the right to claim a deduction of the tax paid. Granting a deduction is possible if the goods will be used in transactions that are taxed, the products will be resold in the future, the receipt of products is confirmed by the contract and the TD, the payment is certified.
What documents are needed:
Often, when organizing foreign trade deliveries, advance payment is used. In the case of an advance payment for the forthcoming receipt of products, the buyer shall pay a fee from the amount of the advance payment.
Exemption from VAT when importing goods is possible in several situations. VAT is not required if the products are not subject to taxes, the goods are imported into the country in connection with their transfer within the same legal entity, between units located in different EAEU member states.
The list of products that are exempt from tax when imported from the EAEU countries include meat products, some plants, extracts, water, pharmaceutical products, fertilizers, some types of reagents, latex for medical purposes, some types of clothing, shoes, wheelchairs, optical devices etc.
If a trading company purchases goods for resale abroad, it should be remembered that when they are imported into Russia, you must pay "customs" VAT. But it is not always possible to accept such an amount for deduction ...
We pay VAT at customs
The importation of goods into the customs territory of the Russian Federation is recognized as an object of value added tax (subclause 4, clause 1, article 146 of the Tax Code of the Russian Federation).
We calculate the tax
How to calculate the tax base for "import" VAT is stated in paragraph 1 of Article 160 of the Tax Code of the Russian Federation. It includes:
- customs value of imported goods;
- the amount of excises to be paid if the goods are excisable;
- customs duty.
customs value. The main document regulating the principles of its determination is the Law of the Russian Federation dated May 21, 1993 No. 5003-1 “On the customs tariff” (hereinafter referred to as the Law). According to paragraph 1 of Article 12 of the Law, the customs value of imported goods is calculated based on the value of the transaction with imported goods. And only if this is not possible, the customs value is set:
- at the cost of a transaction with identical goods;
- at the cost of a transaction with homogeneous goods;
- subtraction method;
- addition method;
- backup method.
So, as a rule, the customs value is determined on the basis of the price of imported goods actually paid (payable) at the time of crossing the customs border of the Russian Federation, taking into account additional costs. These include, in particular, remuneration to the agent, the cost of services for packaging and labeling the goods, for its delivery to the place of import into the customs territory of the Russian Federation, for loading, unloading, reloading, insurance during transportation (Articles 19, 19.1 of the Law).
Please note that in certain cases, in order to confirm the customs value of goods, as well as to verify the information provided, customs officers may require additional documents and information.
The customs value of goods, calculated from the value of the transaction, is confirmed by the corresponding declaration (its forms are approved by order of the Federal Customs Service of Russia dated September 1, 2006 No. 829).
When using the main method, form No. DTS-1 is filled out, in other cases - form No. DTS-2 (is an integral part of the cargo customs declaration).
Please note: it is necessary to distinguish between the customs value of the goods and its invoice value, since their values do not always coincide. If the first is needed for calculating customs payments, then the second is for calculating the initial cost of imported goods (it is determined from the terms of a foreign economic contract).
Import duty and excise. Decree of the Government of the Russian Federation of November 27, 2006 No. 718 "Customs Tariff of the Russian Federation" introduced customs duty rates as a percentage of the customs value of goods (ad valorem rates). But there are also specific rates. They are calculated in a fixed amount in euros per physical unit of measure of the goods (per piece, per thousand pieces, etc.). A combined order may also be used. In this case, the calculation is made both at the ad valorem and at the specific rate. The resulting amounts are then compared. The largest amount is paid into the budget.
The procedure for calculating excise duty is given in Article 194 of the Tax Code of the Russian Federation. Thus, the amount of excise tax on goods taxed at ad valorem rates is calculated as a percentage of tax base(sums of customs value and customs duty).
Excise tax on goods with specific rates is calculated as the product of the relevant rate and the tax base (taking into account the volume of imported goods in physical terms).
If combined rates are applied to goods, the excise tax is calculated as the sum of the excise tax at the specific and ad valorem rates.
Example 1 The Argo company entered into an agreement with a foreign counterparty for the supply of goods in the amount of 100,000 conventional units. The contract price does not include the following: Additional services:
- for the transportation of goods to the customs border of the Russian Federation in the amount of 100,000 rubles;
- for packaging - 60,000 rubles.
Imported goods are not excisable, the customs duty rate used in this case is 10 percent.
According to the agreement, the ownership of the goods was transferred to Argo on July 10, 2010 (on the day the customs declaration was made). The exchange rate for this date is 30 rubles. for a conventional unit.
Let us determine the customs value of the goods using the method based on the value of the transaction with imported goods:
100 000 c.u. e. x 30 rubles / y. e. + 100,000 rubles. + 60 000 rub. = 3,160,000 rubles.
Then the customs duty will be:
RUB 3,160,000 x 10% = 316,000 rubles.
The amount of value added tax that must be paid at customs when importing goods is calculated as follows:
VAT = (Customs value + Customs duty + Excise) x VAT rate.
Keep in mind that there are categories of goods, upon import of which VAT is not paid at all (Article 150 of the Tax Code of the Russian Federation).
We pay tax to the budget
"Customs" VAT is paid to the budget in a special manner: not according to the results of the quarter in which the goods were imported into Russia, but simultaneously with other customs payments. Moreover, this must be done by the one who declares the goods (Article 143, paragraph 1 of Article 174 of the Tax Code of the Russian Federation, Article 328 of the Customs Code of the Russian Federation).
The tax is paid no later than the date of submission of the customs declaration.
If this document is not submitted in a timely manner, then the terms for making customs payments are calculated from the day when the deadline for filing a customs declaration expires (Article 329 of the Customs Code of the Russian Federation).
In the event that the goods are declared in advance, all customs duties and taxes must be transferred no later than the day of release of these goods.
The fact of payment of "import" VAT can be confirmed by the stamp "Issue allowed", which is affixed in column "D" of the cargo customs declaration (Instruction on the procedure for filling out the customs declaration, which was approved by order of the Federal Customs Service of Russia dated September 4, 2007 No. 1057). Arbitrators have repeatedly paid attention to this (see the decisions of the Federal Antimonopoly Service of the Moscow District dated January 30, 2008 No. KA-A40 / 105-08, dated March 20, 2007 No. KA-A40 / 983-07, dated January 24, 2007 No. КА-А40/13676-06).
Please note: if the tax is not paid in full, a note on the conditional release of the goods is affixed to the declaration.
"Customs" VAT can be deducted
The amount of VAT paid at customs can be deducted (clause 1, article 172 of the Tax Code of the Russian Federation). But only if:
- goods are imported into Russia under the customs regimes of release for domestic consumption, for temporary import, for processing outside the customs territory;
- assets are accepted for accounting;
- there are documents confirming the payment of the "import" tax.
On the date of acceptance of goods for accounting
As a rule, it coincides with the moment of transfer of ownership. Indeed, unless otherwise provided by law or contract, the new owner has this right from the moment the thing is transferred (clause 1, article 223 of the Civil Code of the Russian Federation).
If the imported goods are intended for resale, then the date when they are registered is the day they are credited to account 41 "Goods". When acquiring an object of fixed assets with the determination of the date of acceptance of the asset for accounting, not everything is so simple.
Many experts believe that this is the date on which the object was accepted for accounting on account 08 “Acquisition of fixed assets” or 07 “Equipment for installation”. The Presidium of the Supreme Arbitration Court of the Russian Federation agrees with this, which confirms the decision of February 24, 2004 No. 10865/03. Letter No. 03-07-08/20 of January 29, 2010 from the Ministry of Finance of Russia also speaks in favor of this position. Here, the specialists of the main financial department agreed that the “import” VAT on equipment requiring installation can be deducted after the equipment is accepted for accounting on account 07.
However, many local inspectors insist that in order to deduct "import" VAT on a fixed asset, it is necessary to put this asset into operation. Such an interpretation of the current legislation is also reflected in the letter of the Federal Tax Service of Russia dated April 5, 2005 No. 03-1-03 / 530 / [email protected]
Supporting documents
“Customs VAT” is deductible based on:
- foreign economic contract;
- invoice of a foreign counterparty;
- customs declaration, which indicates the amount of VAT paid;
- documents confirming the fact of its inclusion in the budget (customs declaration, payment documents indicating the payment of VAT to the customs authority).
Payments customs card.
If the tax was paid by a customs card, it is possible to request from customs officers a written confirmation of payment of customs duties and taxes in the form approved by the order of the State Customs Committee of Russia dated November 27, 2003 No. 647-r. This document will be the basis for accepting VAT for deduction (letters of the Ministry of Finance of Russia dated October 2, 2009 No. 03-07-08 / 198, dated November 6, 2008 No. 03-07-08 / 249).
The tax has been paid in advance. In the event that customs payments, including VAT, are made in advance, customs specialists will issue a report on the expenditure of funds within 30 days (clause 4, article 330 of the Customs Code of the Russian Federation).
Goods for a trading company are imported by an intermediary. In such a situation, the company should take care of the availability of documents confirming that the intermediary paid VAT, and the company reimbursed him for these expenses (letter of the Ministry of Finance of Russia dated August 28, 2007 No. 03-07-08 / 242).
The tax authorities are not entitled to demand additional documents that are not stipulated by the current legislation (decrees of the Federal Antimonopoly Service of the Moscow District dated February 4, 2008 No. KA-A40 / 47-08, dated August 8, 2007 No. KA-A40 / 7613-07). True, if you still have to defend your innocence in court, any other documents may come in handy for the organization. For example, acts of acceptance and transfer of valuables for safekeeping, acts of reconciliation with customs authorities. This is also confirmed by arbitration practice (see, for example, the decisions of the Federal Antimonopoly Service of the Moscow District dated September 24, 2008 No. KA-A40 / 9086-08, dated July 16, 2007 No. KA-A40 / 6676-07).
Please note: the amount of "import" VAT should be accepted for deduction in the tax period when all the conditions for its application are met. This is also indicated by the tax authorities (letters of the Federal Tax Service of Russia for Moscow dated October 29, 2009 No. 16-15 / 113588, dated January 23, 2009 No. 19-11 / 4833). It is impossible to claim a deduction later than the right to it arose. The Supreme Arbitration Court of the Russian Federation also agrees with the officials. Decision No. 5704/08 of June 27, 2008 states that the provisions of Chapter 21 of the Tax Code of the Russian Federation (“Value Added Tax”) do not provide the right to choose when determining the tax period in which VAT is deductible.
In some cases, the amount of "customs" VAT is taken into account in the cost of imported goods. In particular, if:
- the goods are purchased for use in operations not subject to VAT;
- the company is released from fulfilling the obligations of a VAT payer under Article 145 of the Tax Code of the Russian Federation;
- the organization is on the "simplified" with the object of taxation "income" or pays a single tax on imputed income.
The norms of paragraph 2 of Article 170 of the Tax Code of the Russian Federation allow to take into account the amount of VAT paid at customs in the cost of goods.
