1. For the purposes of this chapter, the moment of determining the tax base, unless otherwise provided by paragraphs 3, 7 - 11, 13 - 15 of this article, is the earliest of the following dates:
1) the day of shipment (transfer) of goods (works, services), property rights;
2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.
2. Has expired. - Federal Law of July 22, 2005 N 119-FZ.
3. In cases where the goods are not shipped or transported, but there is a transfer of ownership of these goods, such a transfer of ownership for the purposes of this chapter is equated to its shipment, except for the case provided for by paragraph 16 of this article.
4 - 6. Lost their power. - Federal Law of July 22, 2005 N 119-FZ.
7. When a taxpayer sells goods transferred by him for storage under a warehouse storage agreement with the issuance of a warehouse certificate, the moment of determining the tax base for these goods is determined as the day of realization of the warehouse certificate.
8. When transferring property rights in the case provided for by paragraph 2 of Article 155 of this Code, the moment of determining the tax base is determined as the day of assignment of the monetary claim or the day of termination of the corresponding obligation, in the cases provided for by paragraphs 3 and 4 of Article 155 of this Code - as the day of assignment (subsequent assignment) of the claim or the day of fulfillment of the obligation by the debtor, and in the case provided for by paragraph 5 of Article 155 of this Code, as the day of transfer of property rights.
9. When selling goods (works, services) provided for in subparagraphs 1, 2.1 - 2.8, 2.10, 3, 3.1, 8, 9, 9.1 and 12 of paragraph 1 of Article 164 of this Code, the moment of determining the tax base for these goods (works, services ) is the last day of the quarter in which the complete package of documents provided for by Article 165 of this Code is collected.
If the full package of documents provided for in Article 165 of this Code is not collected within the time limits specified in paragraph 9 of Article 165 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this Code. article, unless otherwise provided by this paragraph. In the event that the full package of documents provided for in paragraph 5 of Article 165 of this Code is not collected on the 181st calendar day from the date of affixing the mark of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export, re-export or customs transit, the moment of determination the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (date state registration each newly established organization, and in case of reorganization in the form of affiliation - the date of inclusion in a single State Register legal entities records of the termination of activities of each affiliated organization).
In the event of importation into the port special economic zone of Russian goods placed outside the port special economic zone under the customs procedure for export (re-export), or when exporting supplies, the deadline for submission of documents established by paragraph 9 of Article 165 of this Code is determined from the date of placement of these goods under the customs procedure. export (re-export) procedure or from the date of declaration of supplies (and for taxpayers who sell supplies for which customs declaration is not provided for by the customs legislation of the Customs Union, from the date of registration of transport, shipping or other documents confirming the export of supplies outside the territory Russian Federation air and sea vessels, ships of mixed (river - sea) navigation).
9.1. In the cases provided for by paragraphs 6, 6.1 and 6.2 of Article 161 of this Code, the moment of determining the tax base by the tax agent is established in accordance with subparagraph 1 of paragraph 1 of this article.
9.2. For the purposes of this chapter, the moment of determining the tax base for the sale of services provided for in subparagraph 9.2 of paragraph 1 of Article 164 of this Code is the last day of each tax period.
10. For the purposes of this chapter, the moment of determining the tax base for the performance of construction and installation works for own consumption is the last day of each tax period.
11. For the purposes of this Chapter, the moment of determining the tax base for the transfer of goods (performance of work, provision of services) for own needs, recognized as an object of taxation in accordance with this Chapter, is determined as the day of the said transfer of goods (performance of work, provision of services).
12. The accounting policy adopted by the organization for taxation purposes is approved by the relevant orders, orders of the head of the organization.
Accounting policy for taxation purposes, it is applied from January 1 of the year following the year of its approval by the relevant order, order of the head of the organization.
The accounting policy for taxation purposes adopted by the organization is mandatory for all separate divisions of the organization.
The accounting policy for taxation purposes adopted by the newly created organization is approved no later than the end of the first tax period. An accounting policy for taxation purposes adopted by a newly created organization is considered applicable from the day the organization was established.
Paragraphs five - six have lost their force. - Federal Law of July 22, 2005 N 119-FZ.
13. In the event that a taxpayer - a manufacturer of goods (works, services) receives payment, partial payment against the upcoming deliveries of goods (performance of works, rendering of services), the duration of the production cycle of which is more than six months (according to the list determined by the Government of the Russian Federation), the taxpayer that is the manufacturer of the said goods (works, services) has the right to determine the moment of determining the tax base as the day of shipment (transfer) of the said goods (performance of works, rendering of services) if there is a separate accounting of the operations performed and the amounts of tax on the goods (works, services) acquired, in including fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations.
Upon receipt of payment, partial payment by the taxpayer - the manufacturer of goods (works, services) in tax authorities at the same time with tax return a contract with the buyer is submitted (a copy of such a contract certified by the signature of the head and chief accountant), as well as a document confirming the duration of the production cycle of goods (works, services), indicating their name, production time, name of the manufacturer, issued to the specified taxpayer-manufacturer federal agency executive power, carrying out the functions of developing public policy and legal regulation in the field of industrial, military-industrial and fuel and energy complexes, signed by an authorized person and certified by the seal of this body.
14. If the moment of determining the tax base is the day of payment, partial payment for the upcoming supply of goods (performance of work, provision of services) or the day of transfer of property rights, then on the day of shipment of goods (performance of work, provision of services) or on the day of transfer of property rights on account of the payment received earlier, partial payment, the moment of determining the tax base also arises.
15. For tax agents specified in paragraphs 4, 5, 5.1 and 8 of Article 161 of this Code, the moment of determining the tax base is determined in the manner established by paragraph 1 of this article.
16. When implemented real estate The date of shipment for the purposes of this Chapter is the day of transfer of real estate to the buyer of this property under a deed of transfer or other document on the transfer of real estate.
1. For the purposes of this chapter, the moment of determining the tax base, unless otherwise provided by paragraphs 3, 7 - 11, 13 - 15 of this article, is the earliest of the following dates:
1) the day of shipment (transfer) of goods (works, services), property rights;
2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.
2. Has expired. - Federal Law of July 22, 2005 N 119-FZ.
3. In cases where the goods are not shipped or transported, but there is a transfer of ownership of these goods, such a transfer of ownership for the purposes of this chapter is equated to its shipment, except for the case provided for by paragraph 16 of this article.
4 - 6. Lost their power. - Federal Law of July 22, 2005 N 119-FZ.
7. When a taxpayer sells goods transferred by him for storage under a warehouse storage agreement with the issuance of a warehouse certificate, the moment of determining the tax base for these goods is determined as the day of realization of the warehouse certificate.
8. When transferring property rights in the case provided for by paragraph 2 of Article 155 of this Code, the moment of determining the tax base is determined as the day of assignment of the monetary claim or the day of termination of the corresponding obligation, in the cases provided for by paragraphs 3 and 4 of Article 155 of this Code - as the day of assignment (subsequent assignment) of the claim or the day of fulfillment of the obligation by the debtor, and in the case provided for by paragraph 5 of Article 155 of this Code, as the day of transfer of property rights.
9. When selling goods (works, services) provided for in subparagraphs 1, 2.1 - 2.8, 2.10, 3, 3.1, 8, 9, 9.1 and 12 of paragraph 1 of Article 164 of this Code, the moment of determining the tax base for these goods (works, services ) is the last day of the quarter in which the complete package of documents provided for by Article 165 of this Code is collected.
If the full package of documents provided for in Article 165 of this Code is not collected within the time limits specified in paragraph 9 of Article 165 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this Code. article, unless otherwise provided by this paragraph. In the event that the full package of documents provided for in paragraph 5 of Article 165 of this Code is not collected on the 181st calendar day from the date of affixing the mark of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export, re-export or customs transit, the moment of determination the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (the date of state registration of each newly established organization, and in the case of reorganization in the form accession - the date of making an entry in the unified state register of legal entities on the termination of the activities of each affiliated organization).
In the event of importation into the port special economic zone of Russian goods placed outside the port special economic zone under the customs procedure for export (re-export), or when exporting supplies, the deadline for submission of documents established by paragraph 9 of Article 165 of this Code is determined from the date of placement of these goods under the customs procedure. export (re-export) procedure or from the date of declaration of supplies (and for taxpayers who sell supplies for which customs declaration is not provided for by the customs legislation of the Customs Union, from the date of registration of transport, shipping or other documents confirming the export of supplies outside the territory of the Russian Federation air and sea vessels, ships of mixed (river - sea) navigation).
9.1. In the cases provided for by paragraphs 6, 6.1 and 6.2 of Article 161 of this Code, the moment of determining the tax base by the tax agent is established in accordance with subparagraph 1 of paragraph 1 of this article.
9.2. For the purposes of this chapter, the moment of determining the tax base for the sale of services provided for in subparagraph 9.2 of paragraph 1 of Article 164 of this Code is the last day of each tax period.
10. For the purposes of this chapter, the moment of determining the tax base for the performance of construction and installation works for own consumption is the last day of each tax period.
11. For the purposes of this Chapter, the moment of determining the tax base for the transfer of goods (performance of work, provision of services) for own needs, recognized as an object of taxation in accordance with this Chapter, is determined as the day of the said transfer of goods (performance of work, provision of services).
12. The accounting policy adopted by the organization for taxation purposes is approved by the relevant orders, orders of the head of the organization.
The accounting policy for taxation purposes is applied from January 1 of the year following the year of its approval by the relevant order, order of the head of the organization.
The accounting policy for taxation purposes adopted by the organization is mandatory for all separate divisions of the organization.
The accounting policy for taxation purposes adopted by the newly created organization is approved no later than the end of the first tax period. An accounting policy for taxation purposes adopted by a newly created organization is considered applicable from the day the organization was established.
Paragraphs five - six have lost their force. - Federal Law of July 22, 2005 N 119-FZ.
13. In the event that a taxpayer - a manufacturer of goods (works, services) receives payment, partial payment against the upcoming deliveries of goods (performance of works, rendering of services), the duration of the production cycle of which is more than six months (according to the list determined by the Government of the Russian Federation), the taxpayer that is the manufacturer of the said goods (works, services) has the right to determine the moment of determining the tax base as the day of shipment (transfer) of the said goods (performance of works, rendering of services) if there is a separate accounting of the operations performed and the amounts of tax on the goods (works, services) acquired, in including for fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations.
Upon receipt of payment, partial payment by the taxpayer - the manufacturer of goods (works, services), a contract with the buyer is submitted to the tax authorities simultaneously with the tax declaration (a copy of such a contract certified by the signature of the head and chief accountant), as well as a document confirming the duration of the production cycle of goods (works , services), indicating their name, production time, name of the manufacturer, issued to the specified taxpayer-manufacturer by the federal executive body responsible for developing state policy and legal regulation in the field of industrial, military-industrial and fuel and energy complexes signed by an authorized person and certified by the seal of this authority.
14. If the moment of determining the tax base is the day of payment, partial payment for the upcoming supply of goods (performance of work, provision of services) or the day of transfer of property rights, then on the day of shipment of goods (performance of work, provision of services) or on the day of transfer of property rights on account of the payment received earlier, partial payment, the moment of determining the tax base also arises.
15. For the tax agents specified in paragraphs 4, 5, 5.1 and 8 of Article 161 of this Code, the moment of determining the tax base is determined in the manner established by paragraph 1 of this article.
16. When real estate is sold, the date of shipment for the purposes of this chapter is the day of transfer of real estate to the buyer of this property under a deed of transfer or other document on the transfer of real estate.
This article is the earliest of the following dates:
1) the day of shipment (transfer) of goods (works, services), property rights;
2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.
3. In cases where the goods are not shipped or transported, but there is a transfer of ownership of these goods, such a transfer of ownership for the purposes of this chapter is equated to its shipment, except for the case provided for by paragraph 16 of this article.
7. When a taxpayer sells goods transferred by him for storage under a warehouse storage agreement with the issuance of a warehouse certificate, the moment of determining the tax base for these goods is determined as the day of realization of the warehouse certificate.
8. When transferring property rights in the case provided for by paragraph 2 of Article 155 of this Code, the moment of determining the tax base is determined as the day of assignment of the monetary claim or the day of termination of the corresponding obligation, in the cases provided for by paragraphs 3 and 4 of Article 155 of this Code - as the day of assignment (subsequent assignment) of the claim or the day of fulfillment of the obligation by the debtor, and in the case provided for by paragraph 5 of Article 155 of this Code, as the day of transfer of property rights.
9. When selling goods (works, services) provided for in subparagraphs 1, 2.1 - 2.8, 2.10, , 3.1, , 9.1 and 12 of paragraph 1 of Article 164 of this Code, the moment of determining the tax base for these goods (works, services) is the last the number of the quarter in which the full package of documents provided for by Article 165 of this Code is collected.
If the full package of documents provided for in Article 165 of this Code is not collected within the time limits specified in paragraph 9 of Article 165 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this Code. article, unless otherwise provided by this paragraph. In the event that the full package of documents provided for in paragraph 5 of Article 165 of this Code is not collected on the 181st calendar day from the date of affixing the mark of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export, re-export or customs transit, the moment of determination the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (the date of state registration of each newly established organization, and in the case of reorganization in the form accession - the date of making an entry in the unified state register of legal entities on the termination of the activities of each affiliated organization).
In the event of importation into the port special economic zone of Russian goods placed outside the port special economic zone under the customs procedure for export (re-export), or when exporting supplies, the deadline for submission of documents established by paragraph 9 of Article 165 of this Code is determined from the date of placement of these goods under the customs procedure. export (re-export) procedure or from the date of declaration of supplies (and for taxpayers who sell supplies for which customs declaration is not provided for by the customs legislation of the Customs Union, from the date of registration of transport, shipping or other documents confirming the export of supplies outside the territory of the Russian Federation air and sea vessels, ships of mixed (river - sea) navigation).
13. In the event that a taxpayer - manufacturer of goods (works, services) receives payment, partial payment against the forthcoming deliveries of goods (performance of works, provision of services), the duration of the production cycle of which is more than six months (according to the list determined by the Government of the Russian Federation), the taxpayer that is the manufacturer of the said goods (works, services) has the right to determine the moment of determining the tax base as the day of shipment (transfer) of the said goods (performance of works, rendering of services) if there is a separate accounting of the operations performed and the amounts of tax on the goods (works, services) acquired, in including for fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations.
Upon receipt of payment, partial payment by the taxpayer - the manufacturer of goods (works, services), a contract with the buyer is submitted to the tax authorities simultaneously with the tax declaration (a copy of such a contract certified by the signature of the head and chief accountant), as well as a document confirming the duration of the production cycle of goods (works , services), indicating their name, production time, name of the manufacturer, issued to the specified taxpayer-manufacturer by the federal executive body responsible for developing state policy and legal regulation in the field of industrial, military-industrial and fuel and energy complexes signed by an authorized person and certified by the seal of this authority.
For value added tax
16. When real estate is sold, the date of shipment for the purposes of this chapter is the day of transfer of real estate to the buyer of this property under a deed of transfer or other document on the transfer of real estate.
By general rule“advance” VAT must be charged on the prepayment of upcoming deliveries (clause 2, clause 1, article 167 of the Tax Code of the Russian Federation). The seller will issue an invoice and reflect it in the sales book. In the future, on the date of shipment, he will again accrue (now "shipping") tax, at the same time he will receive the right to deduct "advance" VAT (clause 14, article 167, clause 8, article 171, clause 6, article 172 of the Tax Code of the Russian Federation ).
But if we are talking about the sale of goods (performance of work, provision of services), the manufacture of which takes more than six months (long production cycle), a different procedure for determining the VAT base is possible. Which? We will tell you in a consultation, focusing on the nuances of the designated topic. Let's not forget about the other side of the contract.
Taxpayers - manufacturers goods (works, services), the production of which takes a long (more than six months) period of time, has the right not to pay VAT on the advance payment received. This follows from the norms of paragraph 1 of Art. 154 of the Tax Code of the Russian Federation and par. 1 p. 13 Art. 167 of the Tax Code of the Russian Federation. In this case, an “advance” invoice is not issued and the corresponding entries in the sales book are not made (clauses 1, 2, article 169 of the Tax Code of the Russian Federation, paragraph 3, clause 17 of the Rules for maintaining the sales book). Therefore, the buyer will not be able to claim a VAT deduction from the listed prepayment of the forthcoming delivery.
But we are talking about special products - the list of "long-term" goods (works, services) is determined by the Government of the Russian Federation in Decree No. services (clause 2). For example, solid waste disposal and treatment activities are mentioned here; construction of ships, ships and floating structures, recreational and sports boats; production:
nuclear facilities and their constituent parts, including for Vehicle;
weapons and ammunition;
radio and television transmitting equipment;
navigational, meteorological, geodetic, geophysical and similar instruments, apparatus and instruments;
tools, equipment and devices used for medical purposes, etc.
Note: in May of this year, the list was updated (see Decree of the Government of the Russian Federation of 05.05.2017 No. 527): instead of codes for the now canceled All-Russian Classifier of Products OK 005-93, the names of goods (works, services) are correlated with codes of the All-Russian classifier products by type economic activity(OKPD 2) OK 034-2014 (KPES 2008) and the All-Russian Classification of Economic Activities (OKVED 2) OK 029-2014 (NACE Rev. 2).
The government list, as we see, includes very specific types of work and production. Therefore, most organizations, when receiving an advance payment from a customer under a long-term contract, are required to charge VAT on this amount, issue an invoice and reflect it in the sales book (clause 2, clause 1, article 167 of the Tax Code of the Russian Federation).
It is possible to apply a special procedure for calculating the tax base only if certain conditions are met. The taxpayer needs (clause 13 of article 167 of the Tax Code of the Russian Federation):
organize separate accounting of ongoing operations and tax amounts for purchased goods (works, services), including fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations (para. one);
simultaneously with the tax return submit (paragraph 2):
contract with the buyer (a copy of the contract certified by the signature of the head and chief accountant);
a document confirming the duration of the production cycle of goods (works, services) indicating their name, production time, name of the manufacturer, you this tax to the payer-manufacturer by the federal executive body responsible for the development of state policy and legal regulation in the field of industrial, military-industrial and fuel and energy complexes, signed by an authorized person and certified by the seal of this body.
The Ministry of Industry and Trade of Russia (Minpromtorg) is the same federal executive body.
Thus, in the above regulatory provisions, paragraph 13 of Art. 167 of the Tax Code of the Russian Federation, we are talking about a taxpayer manufacturer who has a document confirming the duration of the production cycle of goods (works, services) (Letter of the Federal Tax Service of Russia dated 12.01.2011 No. KE-4-3 / [email protected]). The document is issued by the Ministry of Industry and Trade in accordance with paragraph 1 of the Regulations and paragraph 10 of the Administrative Regulations.
So, in order to take advantage of the preference (on the basis of paragraph 1 of article 154 of the Tax Code of the Russian Federation, do not include in tax base prepayment for upcoming deliveries of “long-term” products), the documents specified in paragraph 13 of Art. 167 of the Tax Code of the Russian Federation.
Note: the term of the contract for the application of a preferential procedure for “advance” VAT does not matter (Letter of the Federal Tax Service of Russia dated February 20, 2017 No. SD-4-3 / [email protected]).
But the deduction of "input" VAT on goods (works, services) purchased for the manufacture of such products must be "delayed": it can be declared on the date of shipment or compilation primary document issued to the buyer (carrier), that is, at the time of determining the tax base for VAT. Reason - paragraph 7 of Art. 172 of the Tax Code of the Russian Federation.
Note: taxpayers - manufacturers of "durable" products make VAT deductions in the tax period in which the tax base for the goods (works, services) sold is determined, including after the expiration of three years calculated from the moment the acquisition is taken into account (Letter of the Ministry of Finance of Russia dated June 15, 2015 No. 03-07-11 / 34361).
It is also necessary to reason in relation to the presented by suppliers "advance" VAT. In Letter No. 03-07-11/26333 dated 05/06/2016, specialists of the financial department, referring to the conclusions of the Supreme Court of the Russian Federation (determinations No. 306-KG15-15782 dated 02.04.2016 and No. 301-KG15-16574 dated 20.02.2016), concluded: from a systematic interpretation of the provisions of paragraph 13 of Art. 167 of the Tax Code of the Russian Federation and paragraph 7 of Art. 172 of the Tax Code of the Russian Federation it follows that these norms do not establish any specific types of deductions, the list of which is given in Art. 171 of the Tax Code of the Russian Federation, and also do not provide for various legal regime in respect of VAT paid on the transfer of advances on account of future deliveries of goods used in the manufacture of goods with a long production cycle, and VAT paid on the purchase of such goods (works, services). Taking into account the above, the amounts of VAT on the listed amounts of advance payment (partial payment) of goods (works, services) used by the taxpayer to carry out operations for the production of products with a long production cycle are subject to deduction from the taxpayer applying the norm of clause 13 of Art. 167 of the Tax Code of the Russian Federation, in the manner prescribed by paragraph 7 of Art. 172 of the Tax Code of the Russian Federation, that is, at the time of determining the tax base.
Here is another example - Resolution No. Ф06-15835/2016 dated 21.12.2016 in case No. А12-10935/2016, in which AS PO supported its colleagues: the right to apply for VAT deduction both for purchased goods (works, services) and for advances transferred to the supplier for the purchase of goods intended for use in production with a long production cycle, the taxpayer did not have any in the audited period. The possibility of applying disputed tax deductions, including advance payments, can only arise in the manner prescribed by paragraph 7 of Art. 172 of the Tax Code of the Russian Federation, namely at the time of shipment of the goods.
Example 1
The organization is engaged in the construction of yachts and motor boats (OKVED code 2 - 30.12 "Construction of pleasure and sports boats").
In January, she received an order in the amount of 30,000,000 rubles; an advance payment of 50% (15,000,000 rubles) was received on the organization's settlement account. The contract sets the deadlines for the completion of works - August of the current year.
To fulfill this contract, the organization purchased goods (works, services), the “input” VAT on which (accumulated on account 19.5.2) amounted to 762,000 rubles. In addition, part of the goods was paid in advance - the organization was presented with an "advance" VAT in the amount of 230,000 rubles.
Accounting policy for the purposes of calculating VAT, the use of the norm of clause 13 of Art. 167 of the Tax Code of the Russian Federation.
The organization does not pay VAT on the received advance, and does not draw up an “advance” invoice.
Based on the results of the first quarter, in the VAT return, the amount received (15,000,000 rubles) will be reflected in line 010 of section. 7 (clause 44.6 of the Procedure for filling out the declaration). Simultaneously with the VAT declaration, the organization will submit:
contract with the buyer (or a copy certified by the signature of the manager and chief accountant);
a document confirming the duration of the production cycle of goods (works, services).
The VAT base in relation to the situation under consideration will arise only on the date of completion of the contract (when signing the work acceptance certificate), that is, in August. Then (in the declaration for the third quarter) the organization will have the right to deduct "input" (762,000 rubles) and "advance" (230,000 rubles) VAT on goods, works, services purchased to fulfill the order. The corresponding invoices are registered in the sales book for the specified .
(Note that VAT deductions for goods, works, services intended for other (if any) activities, the organization, with separate accounting, has the right to apply in a general manner.)
If, according to the declaration, payment of tax is expected, transfers to the budget will be made in equal installments by October 25, November 25, December 25 (clause 1, article 174 of the Tax Code of the Russian Federation).
In practice, a situation may arise when, at the time of receiving the advance, the seller does not have an opinion from the Ministry of Industry and Trade on the duration of the production cycle due to a delay in its issuance.
In this case, the Federal Tax Service explains, the seller must determine the tax base and charge "advance" VAT (Letter dated 12.01.2011 No. KE-4-3 / [email protected]).
In case of non-compliance with the conditions established by paragraph 13 of Art. 167 of the Tax Code of the Russian Federation, the tax base for VAT is determined based on the amount of the prepayment received, taking into account the tax in accordance with the generally established procedure (Letter of the Ministry of Finance of Russia dated August 30, 2017 No. 03-07-11 / 55511).
Subsequently (upon receiving the conclusion of the Ministry of Industry and Trade), the manufacturer will not be able to adjust the calculated tax by submitting an updated declaration, as reported by the Federal Tax Service in Letter No. ED-4-3 dated 11.10.2011 [email protected]
At the same time, examples of judicial decisions cast doubt on the conclusions tax service. Here are some proofs.
The company concluded a state contract with the Ministry of Defense (dated 06/08/2011) for the manufacture and supply of a diving boat for the needs of the ministry, according to which an advance payment of 70,000,000 rubles was received on the organization's settlement account (06/23/2011). On the same day, the company issued an "advance" invoice for the specified amount, including VAT - 10,677,966 rubles. The sales book for the II quarter of 2011 reflects the receipt of prepayment; calculated VAT is included in sect. 3 VAT returns.
The conclusion of the Ministry of Industry and Trade on the duration of the production cycle for the manufacture of goods (works, services) was received on 31.08.2011. In connection with the availability of the relevant document, on 09.10.2011 the company submitted an updated VAT return for the 2nd quarter of 2011, in which it reduced the tax base of the received prepayment for future deliveries by 70,000,000 rubles, as a result of which the amount of VAT payable to the budget was reduced by 10 RUB 677,966
The inspection considered that the company used the right to apply general order the moment of determining the tax base, and the invoice in accordance with the provisions of Ch. 21 of the Tax Code of the Russian Federation is not subject to withdrawal.
The society went to court and found support there. The court pointed out that when field inspection the inspection had information about the existing conclusion of the Ministry of Industry and Trade on the duration of the production cycle for the manufacture of goods, the position of the tax authority does not comply with Art. 81, 154, Tax Code of the Russian Federation and in fact deprives the taxpayer of the right to apply a certain procedure for calculating tax. The court declared illegal the contested decision of the inspectorate regarding the additional charge of VAT for the 2nd quarter of 2011, penalties and reduction of the VAT calculated in an overestimated amount for the 3rd quarter of 2011.
Since the company documented that the duration of the production cycle for manufacturing products sold by it under government contracts dated 01/31/2006 and 02/02/2006 exceeds six months, and documents confirming this circumstance could not be submitted in 2006 to the tax authority for reasons beyond the control of the company , the courts rightfully recognized the decision of the Federal Tax Service Inspectorate on accruing tax penalties to the company as invalid and ordered the tax authorities to return the overcharged amount to the taxpayer.
The buyer will be able to find out what procedure for calculating VAT the seller uses only if the first one has notified him of the presence of the conclusion of the Ministry of Industry and Trade. And if such a notification was received “after…” (in the tax period following the transfer of the advance payment for the forthcoming supply)? Is the buyer, having an "advance" invoice, entitled to claim a VAT deduction?
The answer is positive - yes, it is right.
But then, when a notice is received of the seller's right to apply the exemption from taxation of these advance payments, the tax will have to be restored. In any case, such an indication (with the due date - the tax period in which the notification was received) was given by the Ministry of Finance in Letter No. 03-07-07 / 43 of June 28, 2010.
However, the above recommendation (issued a year earlier) does not fit well with the approach developed (in October 2011) by the Federal Tax Service that the seller (in the described situation) does not have the opportunity to adjust the VAT tax base (Letter No. ED-4-3 / [email protected]).
This is an essential point, since the VAT is built on the principle of mirroring, which (in case of disputes) the judges will pay attention to. Let's fix it in the table.
Salesman | Buyer |
In the absence of the conclusion of the Ministry of Industry and Trade |
|
Include the received advance in the tax base, charge "advance" VAT, issue an "advance" invoice | Declares "advance" VAT deductible |
When the conclusion of the Ministry of Industry and Trade was received |
|
There is no obligation to recover VAT |
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Taking into account the positive judicial practice, corrects (reduces) the tax base | There is an obligation to restore VAT, which was emphasized by the Ministry of Finance (Letter No. 03-07-07 / 43) |
However, situations can be different, and the judges' conclusions can be unpredictable. As an example, let us turn to case No. A71-14944/2016. The essence of the dispute is this.
The taxpayer (buyer) transferred an advance payment for the forthcoming delivery and, having received an “advance” invoice, took advantage of the VAT deduction. However, in the next tax period (Q1 2016), he was notified by counterparties (two organizations) that they had received conclusions on the duration of the production cycle for manufacturing goods. One asked to return the “advance” invoice (dated 10/30/2015) without execution, the second - to consider the advance invoice (dated 12/28/2015) invalid.
What did the buyer do? After receiving letters from counterparties about the withdrawal and cancellation of invoices, he did not make the relevant changes to the tax return for the fourth quarter of 2015. The updated one, in which the VAT previously accepted for deduction was restored by making entries in the sales book, was handed over to him for the 1st quarter of 2016.
What conclusion did the court come to? First Instance (Decision Arbitration Court of the Udmurt Republic dated 01/20/2017), referring to the actions of the sellers (it follows from the materials of the case that such invoices were not reflected in the sales books, VAT was not calculated from advances, they were not paid to the budget; erroneously issued advance invoices were withdrawn from the buyer; on the basis of paragraph 13 of article 167 of the Tax Code of the Russian Federation exercised the right to exemption from taxation of advance payments until the date of submission of the tax return for the fourth quarter of 2015), considered that the buyer had an obligation to adjust its tax liabilities for the fourth quarter of 2015 by submitting a “clarification » for the specified period. Thus, the inspectorate's conclusions about the unlawful application of the tax deduction for the fourth quarter are justified.
There are no claims to invoices - they are issued in compliance with the requirements of Art. 169 of the Tax Code of the Russian Federation. But in the presence of letters from sellers about the withdrawal (cancellation) of invoices, this circumstance has no legal significance. And a canceled invoice cannot be a document that serves as the basis for accepting VAT for deduction.
The buyer's arguments (with reference to Letter No. 03-07-07/43 of the Ministry of Finance of Russia dated June 28, 2010) that there were circumstances excluding his liability were rejected by the court. These clarifications are given for other reasons (the seller of the goods upon receipt of the advance payment paid VAT to the budget), therefore, such a letter is not applicable to the situation in question and is not a circumstance excluding the buyer's fault.
As a result, the tax authority issued a decision (dated June 30, 2016) to hold the buyer liable for committing tax offense in the form of additional VAT charges (in the amount of more than 144 million rubles), accrual of interest on tax (more than 4 million rubles) and collection of a fine (10,000 rubles) (taking into account the overpayments in certain lines and circumstances mitigating liability).
But the appellate instance (Resolution of the Seventeenth Arbitration Court of Appeal dated April 19, 2017), and later the cassation (Resolution of the AC UO dated September 4, 2017 No. F09-4610 / 17) took a different position.
The judges came to the following conclusions: the taxpayer had all the documents provided for by the Tax Code of the Russian Federation for the application of tax deductions for the IV quarter on the transferred advance payments; the circumstances of the case, the actions of counterparties (including the facts of non-calculation and non-payment of "advance" VAT for the specified period) do not indicate that the taxpayer made an error in calculating the tax base and that there are grounds for additional charge of VAT, penalties and fines for this period.
The court did not support the argument of the Federal Tax Service on the groundlessness of the court's reference to the Letter of the Federal Tax Service of Russia No. ED-4-3 / [email protected](Meanwhile, this reflects the situation according to which the seller, on account of the forthcoming delivery of goods with a long production cycle calculated VAT in accordance with the generally established procedure).
As a result, based on the norms of the Tax Code of the Russian Federation (clauses 1 and 3 of Article 168 of the Tax Code of the Russian Federation, clause 1 of Article 169 of the Tax Code of the Russian Federation, clause 12 of Article 171 of the Tax Code of the Russian Federation, clause 9 of Article 172 of the Tax Code of the Russian Federation and clause 13 167 of the Tax Code of the Russian Federation), the court declared the additional charges illegal, and left the IFTS cassation appeal unsatisfied.
We considered VAT issues related to the sale of products with a long production cycle included in the government list, to which a preferential procedure for determining the tax base can be applied - once on the date of shipment.
However, tax code gives the taxpayer - the manufacturer of "durable" products the right to choose: he can determine the tax base traditionally, that is, according to the earliest of the dates: the day of shipment or the day of prepayment against the upcoming shipment. Having refused the preference, upon receipt of an advance payment, an “advance” VAT is charged, and the deductions of the “input” tax are made in the generally established manner (Letter of the Ministry of Finance of Russia dated 09/01/2016 No. 03-07-11 / 50991).
And one moment. The Tax Code does not contain a ban on changing the already chosen procedure for the moment of determining the tax base in subsequent tax periods (Letter of the Federal Tax Service of Russia dated August 14, 2015 No. GD-4-3 / [email protected]).
If established during tax audit cases of acceptance for VAT deduction by a taxpayer who has taken advantage of the preference provided for in paragraph 13 of Art. 167 of the Tax Code of the Russian Federation, the circumstances that led to the change in procedure must be determined. If it is revealed that this has not been changed, the VAT presented by suppliers is deductible in accordance with the norm of clause 7 of Art. 172 of the Tax Code of the Russian Federation (that is, at the time of determining the tax base).
Otherwise (when a change in the procedure is established), the taxpayer is obliged to pay VAT and penalties for the period in which he exercised the above right.
1. For the purposes of this chapter, the moment of determining the tax base, unless otherwise provided by paragraphs 3, 7 - 11, 13 - 15 of this article, is the earliest of the following dates:
3. In cases where the goods are not shipped or transported, but there is a transfer of ownership of these goods, such a transfer of ownership for the purposes of this chapter is equated to its shipment, except for the case provided for by paragraph 16 of this article.
7. When a taxpayer sells goods transferred by him for storage under a warehouse storage agreement with the issuance of a warehouse certificate, the moment of determining the tax base for these goods is determined as the day of realization of the warehouse certificate.
8. When transferring property rights in the case provided for by paragraph 2 of Article 155 of this Code, the moment of determining the tax base is determined as the day of assignment of the monetary claim or the day of termination of the corresponding obligation, in the cases provided for by paragraphs 3 and 4 of Article 155 of this Code, as the day of assignment (subsequent assignment) of the claim or the day of fulfillment of the obligation by the debtor, and in the case provided for by paragraph 5 of Article 155 of this Code, as the day of transfer of property rights.
9. When selling goods (works, services) provided for in subparagraphs 1, 2.1 - 2.8, 2.10, 3, 3.1, 8, 9, 9.1 and 12 of paragraph 1 of Article 164 of this Code, the moment of determining the tax base for these goods (works, services ) is the last day of the quarter in which the complete package of documents provided for by Article 165 of this Code is collected.
If the full package of documents provided for in Article 165 of this Code is not collected within the time limits specified in paragraph 9 of Article 165 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this Code. article, unless otherwise provided by this paragraph. In the event that the full package of documents provided for in paragraph 5 of Article 165 of this Code is not collected on the 181st calendar day from the date of affixing the mark of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export, re-export or customs transit, the moment of determination the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (the date of state registration of each newly established organization, and in the case of reorganization in the form accession - the date of making an entry in the unified state register of legal entities on the termination of the activities of each affiliated organization).
In the event of importation into the port special economic zone of Russian goods placed outside the port special economic zone under the customs procedure for export (re-export), or when exporting supplies, the deadline for submission of documents established by paragraph 9 of Article 165 of this Code is determined from the date of placement of these goods under the customs procedure. export (re-export) procedure or from the date of declaration of supplies (and for taxpayers who sell supplies for which customs declaration is not provided for by the customs legislation of the Customs Union, from the date of registration of transport, shipping or other documents confirming the export of supplies outside the territory of the Russian Federation air and sea vessels, ships of mixed (river - sea) navigation).
9.1. If, within forty-five calendar days from the date of transfer of ownership of the vessel from the taxpayer to the customer, the registration of the vessel in the Russian International Register of Ships is not carried out, the moment of determining the tax base by the tax agent is established in accordance with subparagraph 1 of paragraph 1 of this article.
9.2. For the purposes of this chapter, the moment of determining the tax base for the sale of services provided for in subparagraph 9.2 of paragraph 1 of Article 164 of this Code is the last day of each tax period.
10. For the purposes of this chapter, the moment of determining the tax base for the performance of construction and installation works for own consumption is the last day of each tax period.
11. For the purposes of this Chapter, the moment of determining the tax base for the transfer of goods (performance of work, provision of services) for own needs, recognized as an object of taxation in accordance with this Chapter, is determined as the day of the said transfer of goods (performance of work, provision of services).
12. The accounting policy adopted by the organization for taxation purposes is approved by the relevant orders, orders of the head of the organization.
The accounting policy for taxation purposes is applied from January 1 of the year following the year of its approval by the relevant order, order of the head of the organization.
The accounting policy for taxation purposes adopted by the organization is mandatory for all separate divisions of the organization.
The accounting policy for taxation purposes adopted by the newly created organization is approved no later than the end of the first tax period. An accounting policy for taxation purposes adopted by a newly created organization is considered applicable from the day the organization was established.
Paragraphs 5-6 are no longer valid.
13. If a taxpayer-manufacturer of goods (works, services) receives payment, partial payment against future deliveries of goods (works, services), the duration of the production cycle of which is more than six months (according to the list determined by the Government of the Russian Federation), the taxpayer that is the manufacturer of the said goods (works, services) has the right to determine the moment of determining the tax base as the day of shipment (transfer) of the said goods (performance of works, rendering of services) provided that there is a separate accounting of the operations performed and the amounts of tax on the goods (works, services) acquired, in including for fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations.
Upon receipt of payment, partial payment by the taxpayer - the manufacturer of goods (works, services), a contract with the buyer is submitted to the tax authorities simultaneously with the tax declaration (a copy of such a contract certified by the signature of the head and chief accountant), as well as a document confirming the duration of the production cycle of goods (works , services), indicating their name, production time, name of the manufacturer, issued to the specified taxpayer-manufacturer by the federal executive body responsible for developing state policy and legal regulation in the field of industrial, military-industrial and fuel and energy complexes signed by an authorized person and certified by the seal of this authority.
14. If the moment of determining the tax base is the day of payment, partial payment for the upcoming supply of goods (performance of work, provision of services) or the day of transfer of property rights, then on the day of shipment of goods (performance of work, provision of services) or on the day of transfer of property rights on account of the payment received earlier, partial payment, the moment of determining the tax base also arises.
15. For the tax agents specified in paragraphs 4, 5, 5.1 and 8 of Article 161 of this Code, the moment of determining the tax base is determined in the manner established by paragraph 1 of this article.
16. When real estate is sold, the date of shipment for the purposes of this chapter is the day of transfer of real estate to the buyer of this property under a deed of transfer or other document on the transfer of real estate.
Commented Art. 167 of the Tax Code of the Russian Federation is devoted to the moment of determining the tax base for VAT.
The moment of determining the tax base, unless otherwise provided for in paragraphs 3, 7 - 11, 13 - 15 of Art. 167 of the Tax Code of the Russian Federation, is the earliest of the following dates:
1) the day of shipment (transfer) of goods (works, services), property rights;
2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.
Thus, when implementing works, services, the earliest of the dates should be considered as the moment of determining the tax base for value added tax: the date of transfer of ownership of these works, services, indicated in the document confirming the transfer of ownership, or the day of their payment (partial payment ). At the same time, on the basis of paragraph 14 of Art. 167 of the Tax Code of the Russian Federation, if the moment of determining the tax base is the day of payment, partial payment for the performance of work, the provision of services, on the day of the performance of work, the provision of services on account of payment received earlier, partial payment, the moment of determining the tax base also arises (Letter of the Ministry of Finance of Russia dated 1 September 2014 N 03-03-06/1/43640).
It must be borne in mind that in accordance with Part 1 of Art. 9 federal law dated December 6, 2011 N 402-FZ "On Accounting" each fact economic activity subject to primary accounting documents. Part 2 of this article establishes a list of mandatory details of primary accounting documents. So, obligatory requisites are including the date of preparation of the document, as well as the content of the fact of economic activity.
Thus, the date of shipment (transfer) of goods for VAT purposes is the date of the first drafting of the primary document issued to the buyer (customer), carrier for delivery to the buyer.
Paragraph 3 of Art. 167 of the Tax Code of the Russian Federation establishes that in cases where the goods are not shipped or transported, but there is a transfer of ownership of this product, such a transfer of ownership for VAT purposes is equated to its shipment, except for the case provided for in paragraph 16 of Art. 167 of the Tax Code of the Russian Federation.
In accordance with paragraph 16 of Art. 167 of the Tax Code of the Russian Federation when selling real estate by the date of shipment for the purposes of Ch. 21 of the Tax Code of the Russian Federation, the day of transfer of real estate to the buyer of this property is recognized according to the deed of transfer or other document on the transfer of real estate.
This point was introduced in Art. 167 of the Tax Code of the Russian Federation Federal Law of April 20, 2014 N 81-FZ "On Amending Part Two of the Tax Code of the Russian Federation" and set out in the wording of the Federal Law of July 21, 2014 N 238-FZ "On Amending Chapter 21 of Part the second Tax Code of the Russian Federation and Article 12 of the Federal Law "On Amendments to Certain Legislative Acts of the Russian Federation in Part of Counteracting Illegal Financial Transactions".
It should be noted that prior to the introduction of the above clarifications, the Ministry of Finance of Russia indicated that when selling a real estate object, the earliest of the dates should be considered the moment of determining the tax base for VAT: the date of transfer of ownership of this property indicated in the document confirming the transfer of ownership, or the day of its payment (partial payment). At the same time, on the basis of paragraph 14 of Art. 167 of the Tax Code of the Russian Federation, if the moment of determining the tax base is the day of payment (partial payment), on the date of transfer of ownership of the property, the moment of determining the tax base also arises (Letter of the Ministry of Finance of Russia dated April 28, 2014 N 03-07-11 / 19917).
Receipt of prepayment is recognized as the moment of occurrence of the tax base along with the day of shipment. This is indicated in paragraphs. 2 p. 1 art. 167 of the Tax Code of the Russian Federation. However, according to paragraph 13 of Art. 167 of the Tax Code of the Russian Federation in the event that a taxpayer - a manufacturer of goods (works, services) receives payment, partial payment against the upcoming deliveries of goods (performance of works, provision of services), the duration of the production cycle of which is more than 6 months, the taxpayer - the manufacturer of these goods (works, services) has the right to determine the moment of determining the tax base as the day of shipment (transfer) of the specified goods (performance of work, provision of services). However, for this it is necessary to organize separate accounting for ongoing operations and VAT amounts for purchased goods (works, services), including for fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations. The list of goods (works, services), the duration of the production cycle of which is more than six months, and for which VAT is not required at the time of receipt of an advance payment, is approved by the Government of the Russian Federation.
Having received an advance payment, a taxpayer - a manufacturer of goods (works, services) with a production cycle exceeding six months, must submit to the tax authorities simultaneously with the tax declaration:
- contract with the buyer (a copy of such a contract, certified by the signature of the head and chief accountant);
- a document confirming the duration of the production cycle of goods (works, services), indicating their name, production time, name of the manufacturer, issued to the specified taxpayer-manufacturer by the federal executive body responsible for developing state policy and legal regulation in the field of industrial, military-industrial and fuel and energy complexes, signed by an authorized person and certified by the seal of this body.
The accrual of VAT at the time of receipt of an advance payment does not relieve the taxpayer from the obligation to accrue this tax at the time of shipment of goods (transfer of works, services or property rights). This is a requirement of paragraph 14 of Art. 167 of the Tax Code of the Russian Federation.
