— Federal Law of July 22, 2005 N 119-FZ.

4. When selling goods (work, services) specified in Article 161 of this Code, the amount of tax payable to the budget is calculated and paid in full by the tax agents specified in Article 161 of this Code.

The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer highlighting the amount of tax:

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

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

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

Changes - (Tax Code of the Russian Federation) Tax Code of the Russian Federation part 2

(effective from 01.03.2015)

Amendment to paragraph 2 of Article 388.

(effective from 01/22/2015)

Amendment to subparagraph 2 of paragraph 2 of Article 389.

(effective from 01/01/2015)

payable to the budget is calculated by the following persons if they issue an invoice to the buyer highlighting the amount of tax: 1) persons who are not taxpayers or taxpayers exempt from fulfilling taxpayer obligations related to the calculation and payment of tax; 2) by taxpayers when selling goods (work, services), operations on

At the same time, the situation does not have negative consequences for the enterprise using the simplified tax system.

In what terms and in what order do you need to pay VAT if you have issued an invoice and at the same time belong to the persons specified in clause 5 of Art. 173 of the Tax Code of the Russian Federation, read the article

“In what cases is it possible to pay VAT in 1/3 (shares)?”

.

How to take into account VAT issued by a simplifier in an invoice A simplified seller who has issued an invoice with the allocated amount of VAT has not taken this tax into account in his income since 2020 (subclause 22, clause 1, article 346.16 of the Tax Code of the Russian Federation, law dated 06.04. 2015 No. 84-FZ “On Amendments to Part Two of the Tax Code of the Russian Federation”)

Persons who are not taxpayers or taxpayers exempt from fulfilling taxpayer obligations related to the calculation and payment of tax; 2) by taxpayers when selling goods (work, services), operations for the sale of which are not subject to taxation. In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

Tax Code of the Russian Federation (part two) from N 117-FZ Art. 173 (ed.

Tax Code of the Russian Federation (Part Two) dated 05.08.2000 N 117-FZ Art. 173 (ed.

from 04/03/2019)

The paragraph has been deleted. — Federal Law of May 29, 2002 N 57-FZ.

— Federal Law of July 22, 2005 N 119-FZ.

The amount of tax payable when importing goods into the territory of the Russian Federation and other territories under its jurisdiction is calculated in accordance with paragraph 5 of Article 166 of this Code.

When selling goods (work, services) specified in Article 161 of this Code, the amount of tax payable to the budget is calculated and paid in full by the tax agents specified in Article 161 of this Code.

1. The amount of tax payable to the budget is calculated based on the results of each tax period, as reduced by the amount of tax deductions provided for in article of this Code (including tax deductions provided for in paragraph 3 of article of this Code), the total amount of tax calculated in accordance with with an article of this Code and increased by the amount of tax restored in accordance with this chapter.

119-FZ.

2. If the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with an article of this Code and increased by the amount of tax restored in accordance with paragraph 3 of the article of this Code, the positive difference between the amount of tax deductions and the amount of tax, calculated for transactions recognized as an object of taxation in accordance with subparagraphs 1 and 2 of paragraph 1 of Article of this Code, is subject to reimbursement to the taxpayer in the manner and on the terms provided for in Articles and 176.1 of this Code, except for cases where a tax return is filed by the taxpayer after three years after the end of the relevant tax period.

The paragraph has been deleted. - Federal Law of May 29, 2002 N 57-FZ.

The paragraph became invalid on January 1, 2007. - Federal Law of July 22, 2005 N 119-FZ.

3. The amount of tax payable when importing goods into the territory of the Russian Federation and other territories under its jurisdiction is calculated in accordance with paragraph 5 of Article of this Code.

4. When selling goods (work, services) specified in an article of this Code, the amount of tax payable to the budget is calculated and paid in full by the tax agents specified in the article of this Code, unless otherwise provided by paragraph 4.1 of this article.

4.1. The amount of tax payable to the budget by tax agents specified in paragraph 8 of Article of this Code is determined based on the results of each tax period as the total amount of tax calculated in accordance with paragraph 3.1 of Article of this Code in relation to the goods specified in paragraph 8 of Article of this Code, increased by the amounts of tax restored in accordance with subparagraphs 3 and 4 of paragraph 3 of Article of this Code, and reduced by the amount of tax deductions provided for in paragraphs 3, 5, 8, 12 and 13 of Article of this Code in terms of operations carried out by the specified tax agents, taking into account features provided for in paragraph 3 of Article of this Code.

5. The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer highlighting the amount of tax:

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

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

6. When a taxpayer transitions to special tax regimes or when the taxpayer begins to use the right to exemption provided for in Article of this Code, the amount of tax calculated upon the release of goods in accordance with the customs procedure for release for domestic consumption upon completion of the customs procedure of the free customs zone in the territory of the Special economic zone in the Kaliningrad region, are subject to payment in the manner established by paragraph one of paragraph 1 of article of this Code, for the tax period that falls on the last calendar day before the date of transition to special tax regimes, or for the tax period that falls on the last calendar day before the beginning of the taxpayer's use of the right to the exemption provided for by article of this Code in terms of goods not used for carrying out transactions recognized as objects of taxation in accordance with this chapter, without applying the tax exemption established by this chapter.

7. The amount of tax payable to the budget by the legal successors specified in paragraphs four and five of clause 3.1 of article of this Code is determined in the manner prescribed by paragraph six of clause 3.1 of article of this Code.

Commentary to Art. 173 Tax Code of the Russian Federation

The total amount of tax that needs to be paid to the budget is calculated at the end of each tax period. That is, at the end of either a month or a quarter, depending on how often the taxpayer reports VAT. The amount is determined as follows: to the total amount of tax calculated according to the rules of Article 166 of the Tax Code of the Russian Federation, VAT is added, restored according to the rules of Article 170 of the Tax Code of the Russian Federation, and the tax that is subject to deduction is subtracted on the basis of Article 171 of the Tax Code of the Russian Federation (with the exception of tax deductions provided for in paragraph 3 of Article 172 of this Code).

If as a result it turns out that the amount of tax deductions exceeds the amount to be accrued, the difference must be returned to the taxpayer according to the rules specified in Article 176 of the Tax Code of the Russian Federation. True, there is an exception to this rule. There can be no talk of any refund if the tax return is filed three years after the end of the relevant tax period.

Constant disputes are caused by situations when organizations claim VAT for reimbursement when there is no sales during the tax period. Tax officials insist that in this case the deduction must wait. At the same time, they specifically refer to paragraph 2 of Article 173 of the Tax Code of the Russian Federation. According to the logic of officials, since the company did not have VAT to accrue, then the tax base is zero. It turns out that there is nothing to subtract from. And if so, then it is impossible to apply for VAT refund in this period. It must be said that the arbitration courts do not support the fiscal authorities in this case. Example, Resolution of the Federal Antimonopoly Service of the North-Western District of May 6, 2006 in case No. A56-5005/2005.

VAT highlighted in the invoice in a simplified manner

According to paragraph 5 of Article 173 of the Tax Code of the Russian Federation, organizations that are not VAT payers, but have issued an invoice and allocated the tax in this paper, must transfer it to the budget. And if VAT is not paid, will the organization face any sanctions? The question is controversial. It is also decided ambiguously in arbitration courts.

In some districts, judges believe that it is impossible to bring a simplifier to tax liability for failure to pay VAT at all. The fact is that a fine can only be imposed on VAT payers (clause 2 of article 44, article 122 of the Tax Code of the Russian Federation), which simplifiers are not. Moreover, paragraph 5 of Article 173 of the Tax Code of the Russian Federation refers to “persons who are not taxpayers.” For the same reason, the simplified enterprise will not face penalties. Indeed, in Article 75 of the Tax Code of the Russian Federation, only taxpayers and tax agents are also mentioned as persons who are obliged to pay them. Simplified people who wrongfully allocated VAT in the invoice are not such. This means that it is illegal to impose fines and demand payment of penalties. Their only responsibility is to transfer the VAT allocated and received from buyers to the budget. Such a verdict was made, for example, in the Resolutions of the Federal Antimonopoly Service of the West Siberian District dated December 14, 2004 in case No. Ф04-8795/2004(6991-А70-7), dated August 18, 2004 in case No. Ф04-5769/2004( A27-3834-26), FAS North-Western District dated October 12, 2004 in case No. A13-4110/04-26.

True, there are also opposing opinions on this matter. In some cases, the courts came to the conclusion that if simplifiers issued VAT invoices and did not transfer the tax to the budget in a timely manner, the fine for this offense, as well as penalties, were collected legally. True, judges often do not justify their decisions in any way (see, for example, the Resolution of the Federal Antimonopoly Service of the Central District of May 28, 2004 in case No. A54-88/03-C11-C2). In another decision, the judges of the same district recognized that the company must pay the tax and penalties, but it does not face a fine as a VAT defaulter (Resolution of August 5, 2004 N A64-29/03-19).

So, the majority of judges admit: sanctions for the fact that a simplifier untimely transfers the VAT allocated in invoices to the budget are not provided for by the Tax Code of the Russian Federation. Therefore, it is illegal to charge fines and penalties. True, this will have to be proven in court. If the above argument does not convince tax authorities or judges, another argument can be made.

To assess a fine and calculate penalties, you need to clearly know when the tax must be paid. Meanwhile, paragraph 4 of Article 174 of the Tax Code of the Russian Federation states that the simplifier must transfer the tax wrongfully withheld from the buyer no later than the 20th day of the month following the tax period (Clause 4 of Article 174 of the Tax Code of the Russian Federation). In turn, Article 163 of the Tax Code of the Russian Federation, depending on the amount of revenue, determines the tax period - a month or a quarter. At the same time, no exceptions have been made for the persons specified in paragraph 5 of Article 173 of the Tax Code of the Russian Federation. And if so, the “simplified” cannot clearly determine no later than the 20th day of which month VAT should be transferred to the budget - at the end of the month or quarter. It turns out that the moment from which penalties and fines should be accrued is not defined.

Consequently, despite the established obligation to pay VAT, the “simplifier” continues to remain a person who does not have taxpayer status. Therefore, such organizations are not required to pay fines and penalties. However, the absence of sanctions does not mean that the tax does not need to be paid to the budget.

“Simplers” who issue invoices with a separate tax do not have to fear a fine for being late with the VAT return. The judges of the Federal Antimonopoly Service of the Volga-Vyatka District, in Resolution No. A29-8459/2005A of January 25, 2006, agreed that simplified companies are required to report on VAT received from the buyer (clause 5 of Article 174 of the Tax Code of the Russian Federation). However, only tax payers can be punished for late submission of a declaration (Article 119 of the Tax Code). Firms that apply a simplified taxation system are not recognized as VAT payers (clause 2 of Article 346.11 of the Tax Code).

Judicial practice under Article 173 of the Tax Code of the Russian Federation

Ruling of the Supreme Court of the Russian Federation dated January 31, 2018 N 307-KG17-17944 in case N A56-92715/2015

The taxpayer’s argument that he had the right to apply tax deductions, motivated by the fact that counterparties issued invoices with the allocated amount of tax and fulfilled the obligation to transfer tax to the budget provided for in subparagraph 2 of paragraph 5 of the Tax Code, was properly assessed by the courts.

Ruling of the Supreme Court of the Russian Federation dated 01.02.2018 N 304-KG17-21566 in case N A27-18102/2016

Taking into account the established circumstances, guided by the provisions of articles , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , . came to the conclusion that the tax authority had proven that the company’s actions were aimed at obtaining an unjustified tax benefit in the form of illegal deduction of VAT and a reduction in the tax base for income tax, and therefore recognized the non-normative act of the inspectorate as legal.

Ruling of the Supreme Court of the Russian Federation dated 02/08/2018 N 309-KG17-23730 in case N A50-28632/2016

Taking into account the established circumstances, guided by the provisions of articles , , , , , , , , Tax Code of the Russian Federation, articles 49, 51, 52, 53 of the Civil Code of the Russian Federation, article 9 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting”, Articles 32, 40 of the Federal Law of 02/08/1998 N 14-FZ "On Limited Liability Companies", with the explanations set out in the resolution of 10/12/2006 N, the courts came to the conclusion that the tax authority had legal grounds for making the contested decision, with which the district court agreed.

Ruling of the Supreme Court of the Russian Federation dated February 21, 2018 in case No. 307-KG17-3553, A26-3613/2015

In accordance with paragraph 5 of Article of the Tax Code of the Russian Federation, the amount of VAT payable to the budget is calculated by the following persons when they issue an invoice to the buyer, highlighting the amount of tax:

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

Ruling of the Supreme Court of the Russian Federation dated March 13, 2018 N 308-KG17-20263 in case N A53-30316/2016

According to the applicant, the courts did not take into account paragraph 5 of Article of the Tax Code, which establishes the obligation for the seller, after issuing an invoice with allocated VAT, to pay the specified tax to the budget. Consequently, if for the applicant’s counterparties the allocation of VAT entails the obligation to pay tax to the budget, then for the company this circumstance is the basis for deducting VAT.

Determination of the Constitutional Court of the Russian Federation dated March 27, 2018 N 839-O

ARTICLES AND TAX CODE OF THE RUSSIAN FEDERATION

The Constitutional Court of the Russian Federation, composed of Chairman V.D. Zorkin, judges K.V. Aranovsky, A.I. Boytsova, G.A. Gadzhieva, Yu.M. Danilova, L.M. Zharkova, S.M. Kazantseva, S.D. Knyazeva, A.N. Kokotova, L.O. Krasavchikova, N.V. Melnikova, Yu.D. Rudkina, V.G. Yaroslavtseva,

Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated April 18, 2018 N 307-KG17-3553 in case N A26-3613/2015

In accordance with paragraph 5 of article

In relations regulated by tax and fee legislation, it is as if there is a parallel reality. In part two of the Tax Code of the Russian Federation, in Chapter 21 “Value Added Tax”, new, hitherto unknown participants in tax legal relations appear who, not being taxpayers (!), are obliged to pay VAT, not only for themselves, the defaulter, but also for for the VAT taxpayer himself. Don't believe me? Here's the proof.

Let's start with the first part of the Tax Code of the Russian Federation. Article 9 defines the participants in relations regulated by the legislation on taxes and fees. The list is closed, but since, apparently, the authorities have not addressed it for a long time, let's quote it in full. So,

The participants in relations regulated by the legislation on taxes and fees are:

1. taxpayers or fee payers;
2. organizations and individuals recognized in accordance with this Code tax agents;
3. tax authorities...;
4. customs authorities...

Now forward to a parallel reality, where the main character is the value added tax. It is he who gives birth to new participants in tax legal relations. Yes, here they are, in paragraph 5 of Article 173 of the Tax Code of the Russian Federation, modestly called “ persons ": "The amount of tax payable to the budget is calculated as follows: persons if they issue an invoice to the buyer highlighting the amount of tax: 1) persons, who are not taxpayers...".

Persons These are not taxpayers, and they are not called tax agents. It is clear that these Persons also have no relationship with the tax or customs authorities, as indicated by the list of participants in Article 9 of the Tax Code of the Russian Federation.

Is there a UFO Face in front of us? But for some reason it appeared in the Tax Code of the Russian Federation? Stupid question: of course, to pay taxes. So what if he is NOT a taxpayer - after all, there is a “person”, which means the tax is not far away! Yes, here it is: “... the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services)” (clause 5 of Article 173 of the NKRF). A person pays tax, but this does not make him a taxpayer. This is what the Supreme Arbitration Court thinks: “... the occurrence in this case of an obligation to transfer tax to the budget does not mean that the person who issued the invoice acquires the status of a taxpayer in relation to such transactions...” (second paragraph of paragraph 5).

Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33). Apparently, after all, the Face did not show up and the “face control” for taxpayer status did not pass.

But for the rest, it suits everyone quite well. And although, according to Article 9 of the Tax Code of the Russian Federation is not a participant in relations regulated by legislation on taxes and fees, is attracted to pay VAT precisely because of this legislation on taxes and fees, and specifically Article 173 of the Tax Code of the Russian Federation.

So, the UFO Face has been discovered, the tax is present, all that remains is to analyze the object of taxation. From this point on, more details about the formation of the sales amount indicated in the invoice. So, a person who is not a VAT payer may well purchase goods from someone who is a VAT payer. Meanwhile, the abbreviation VAT (maybe someone has forgotten) reads like this: “tax on added cost”, that is, it is a tax only on the margin, on the direct income of a businessman, on the net increase in value in the form of profitability. This is if the organization purchased a product (work, service) for 11,800 rubles. (10,000 rubles + 1,800 VAT 18%), and sold its own products for 14,160 rubles. (RUB 12,000 + RUB 2,160 VAT 18%), then added the cost including VAT will be 2360 rubles. (14160 - 11800), and the tax calculated specifically from added cost - 360 rub. ((12000 - 10000) x 18%).

As stated above, the Person is obliged to pay the amount of VAT on invoice, transferred to its buyer. It is known that in the invoice the VAT rate is applied not to the added value, but to the total cost of sales (see column 8 of the Invoice Form approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137) and the VAT amount (in our example) will be 2160 rub. (12000×18%). The object of taxation in this case will be not only the added value of the goods (work, service) sold (2,000 rubles), but the cost of the purchased goods (work, service) from a business partner supplier (10,000 rubles).

And this means that this Person will pay to the budget not only his own VAT (360 rubles), but also the VAT of his counterparty (1800 rubles). Object of taxation payer VAT (counterparty) passes to to the defaulter obligated to pay this tax by virtue of paragraph 5 of Article 173 of the Tax Code of the Russian Federation. A budget-friendly defaulter! All this leads to the fact that from the same sales amount of 10,000 rubles. VAT will go to the budget twice (from each subject 1800 rubles), and the tax rate from the same base will no longer be 18% but 36%. But what about the principle of one-time taxation?

The absurdity could have been avoided if our Person had been given the right to tax deduction of VAT received from the supplier. But no. The Supreme Arbitration Court sternly stated: “The said person is only charged with the obligation to transfer tax to the budget, the amount of which, by virtue of the direct indication of paragraph 5 of Article 173 of the Code, is determined based on the amount reflected in the corresponding invoice issued to the buyer. The possibility of reducing this amount by tax deductions by the above norm or other provisionschapter 21There is no code"(paragraph three of paragraph 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On some issues that arise in arbitration courts when considering cases related to the collection of VAT”).

Two months after this decision, the Supreme Arbitration Court ceased its activities. The case when the VAS was abolished, the resolution remained...

ST 173 Tax Code of the Russian Federation.

1. The amount of tax payable to the budget is calculated based on the results of each tax period, as reduced by the amount of tax deductions provided for in Article 171 of this Code (including tax deductions provided for in paragraph 3 of Article 172 of this Code), the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with this chapter.

2. If the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with paragraph 3 of Article 170 of this Code, the positive difference between the amount of tax deductions and the amount tax calculated on transactions recognized as an object of taxation in accordance with subparagraphs 1 and 2 of paragraph 1 of Article 146 of this Code is subject to reimbursement to the taxpayer in the manner and on the terms provided for in Articles 176 and 176.1 of this Code, except for cases when a tax return is filed by the taxpayer three years after the end of the relevant tax period.

The second paragraph has been deleted.

3. The amount of tax payable when importing goods into the territory of the Russian Federation and other territories under its jurisdiction is calculated in accordance with paragraph 5 of Article 166 of this Code.

4. When selling goods (work, services) specified in Article 161 of this Code, the amount of tax payable to the budget is calculated and paid in full by the tax agents specified in Article 161 of this Code, unless otherwise provided by paragraph 4.1 of this article .

4.1. The amount of tax payable to the budget by tax agents specified in paragraph 8 of Article 161 of this Code is determined based on the results of each tax period as the total amount of tax calculated in accordance with paragraph 3.1 of Article 166 of this Code in relation to the goods specified in paragraph 8 of Article 161 of this Code, increased by the amounts of tax restored in accordance with subparagraphs 3 and 4 of paragraph 3 of Article 170 of this Code, and reduced by the amount of tax deductions provided for in paragraphs 3, 5, 8, 12 and 13 of Article 171 of this Code in terms of transactions carried out by the specified tax agents, taking into account the specifics provided for in paragraph 3 of Article 172 of this Code.

5. The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer highlighting the amount of tax:

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

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

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

6. When a taxpayer switches to special tax regimes or when a taxpayer begins to use the right to exemption provided for in Article 145 of this Code, the amounts of tax calculated upon the release of goods in accordance with the customs procedure for release for domestic consumption upon completion of the customs procedure of the free customs zone in the territory Special economic zone in the Kaliningrad region, are subject to payment in the manner established by paragraph one of paragraph 1 of Article 174 of this Code, for the tax period on which the last calendar day falls before the date of transition to special tax regimes, or for the tax period on which the last calendar day falls the day before the taxpayer begins to use the right to the exemption provided for in Article 145 of this Code, in terms of goods not used to carry out transactions recognized as objects of taxation in accordance with this chapter, without applying the tax exemption established by this chapter.

Commentary to Art. 173 Tax Code

The amount of tax that must be paid to the budget is the difference between the total amount of VAT calculated at the end of the tax period and the amount of tax deductions. Consequently, “input” VAT is subject to reimbursement to the taxpayer if the amount of tax deductions exceeds the total amount of tax calculated by him.

Official position.

Thus, in the letter of the Federal Tax Service of Russia dated November 17, 2014 N ГД-3-3/3900@ the issue of the timing of payment of VAT and the application of measures provided for in Art. Art. 75, 76 of the Tax Code of the Russian Federation, if the VAT declaration for the third quarter of 2014 was submitted on 10/02/2014, and on 10/05/2014 a decision was made to liquidate the organization.

The official body indicated that the deadlines for payment of value added tax established by Article 173 of the Tax Code of the Russian Federation do not change. In this case, the order of fulfillment of tax payment obligations is determined by the civil legislation of the Russian Federation. Payment by a taxpayer of tax amounts later than the deadlines established by the legislation of the Russian Federation on taxes and fees entails the accrual of penalties in accordance with paragraph 3 of Article 75 of the Tax Code of the Russian Federation.

In addition, if a decision is made to collect unpaid taxes and penalties, the tax authority has the right to make a decision to suspend the taxpayer’s transactions on bank accounts in accordance with the requirements of Article 76 of the Tax Code of the Russian Federation.

The Constitutional Court of the Russian Federation received a complaint in which the applicant challenges the constitutionality of a number of provisions of the legislation on taxes and fees, in particular paragraph 1 of Article 173 of the Tax Code of the Russian Federation.

By ruling of the Constitutional Court of the Russian Federation dated November 20, 2014 N 2624-O, it was refused to accept the complaint of the closed joint-stock company "Captain" about the violation of constitutional rights and freedoms by the provisions of Article 346.27, paragraph 1 of Article 171 and paragraph 1 of Article 173 of the Tax Code of the Russian Federation.

The Constitutional Court explained that the provisions of Articles 171 and 173 of the Tax Code of the Russian Federation, contested by the applicant, establish the general conditions for the application of tax deductions for value added tax. These provisions provide for the possibility of a taxpayer legally reducing the amount of value added tax calculated for payment to the budget by tax deductions established by law. Thus, they are aimed at realizing the taxpayer’s right to apply a tax deduction, and not at limiting it.

Thus, in themselves they cannot be considered as violating the constitutional rights and freedoms of the applicant in the aspect indicated by him.

An intermediary who is not a VAT payer is obliged to issue the buyer with an allocation of the amount of tax on his own behalf if the principal is on the general taxation system. The intermediary does not have an obligation to pay the tax indicated in such an invoice to the budget (see, for example, letter of the Ministry of Finance of Russia dated May 12, 2011 N 03-07-09/11).

According to the official position, a person who has received an invoice with an allocated amount of value added tax from a person who is not a payer of value added tax does not have the right to deduct such amount of tax.

Thus, the Ministry of Finance of Russia in letters dated 05/16/2011 N 03-07-11/126 and dated 04/01/2008 N 03-07-11/126 says that there are no grounds for deducting VAT amounts on invoices issued by organizations using USN. The Financial Department notes that, in accordance with , documents compiled and issued in violation of the current procedure are not grounds for deducting amounts of value added tax presented to the buyer by the seller. Consequently, value added tax in invoices issued for the sale of goods (work, services) by an organization that uses the simplified tax system and does not fulfill the obligations of a value added tax taxpayer provided for in Article 174.1 of the Tax Code of the Russian Federation, and also does not carry out the sale of goods (work, services) ) on its own behalf on the basis of a commission agreement or agency agreement, is not accepted for deduction from the buyer of these goods (works, services).

Attention!

In paragraph 27 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 N 33 “On some issues arising in arbitration courts when considering cases related to the collection of value added tax”, it is explained that by virtue of paragraph 2 of Article 173 of the Tax Code of the Russian Federation, the positive difference formed in as a result of the excess of the amount of tax deductions over the amounts of tax calculated on taxable transactions, is subject to reimbursement to the taxpayer from the budget, provided that he submits a tax return before the expiration of the three-year period established by this paragraph.

Since this norm does not provide otherwise, tax deductions can be reflected by the taxpayer in the tax return for any of the tax periods included in the corresponding three-year period.

In this case, the rule of paragraph 2 of Article 173 of the Tax Code of the Russian Federation on the three-year deadline for filing a tax return must be observed by the taxpayer even if he includes tax deductions in the submitted amended tax return.

The courts indicate the possibility of deducting value added tax on an invoice issued by a single tax payer paid when applying the simplified tax system.

At the same time, this position is the most probable for them, since the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 14315/10 of March 29, 2011, came to the conclusion that persons who are not payers of value added tax, if they issue invoices to buyers of goods with the allocation of the amount of tax, they must pay the received tax without taking into account tax deductions, which can only be claimed by payers of this tax, to which the persons named in paragraph 5 of Article 173 of the Tax Code of the Russian Federation do not apply.

For example, based on the Resolution of the Federal Antimonopoly Service of the Moscow District dated September 25, 2012 N A40-79771/11-90-347, the seller, although using a simplified taxation system, has issued an invoice to the buyer with the allocated amount of tax, the obligation to pay tax to the budget arises , and the buyer has the right to apply a tax deduction.

According to the Resolution of the Federal Antimonopoly Service of the Volga District dated October 5, 2012 N A65-27098/2011, the purchase of goods from a counterparty using the simplified tax system is not a basis for an organization’s refusal to apply tax deductions, provided that its actions are conscientious and there are grounds for applying a tax deduction.

However, even before the adoption of Resolution No. 14315/10, the courts came to similar conclusions.

Thus, the FAS Moscow District, in Resolution No. KA-A40/8482-09 of August 28, 2009, when making a decision in favor of the taxpayer, was guided by the provisions of paragraph 5 of Article 173, Articles 169, 171, 172, 210, 54, 227, 218 of the Tax Code of the Russian Federation and proceeded from the fact that the entrepreneur lawfully accepted for deduction the VAT amounts presented to her by the supplier and had the right to receive a standard tax deduction in accordance with the application. The taxpayer’s side was also taken by the FAS of the Volga-Vyatka District in Resolution No. A79-1993/2007 dated December 30, 2008.

In the Resolution dated 02.12.2008 N A19-4782/08-57-F02-5536/08, A19-4782/08-57-F02-6112/08 (Determination of the Supreme Arbitration Court of the Russian Federation dated 08.04.2009 N VAS-3855/09 denied transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation), the FAS of the East Siberian District recognized as legitimate the taxpayer’s argument that the circumstances referred to by the tax authority cannot serve as a reason for refusing a refund of value added tax, since the taxpayer complied with all the conditions established by the tax authority legislation for the application of tax deductions for value added tax.

The court indicated that the burden of proving the legality of the use of value added tax deductions by the legislator rests with the taxpayer. At the same time, the data of primary documents drawn up when carrying out a business transaction and submitted by the taxpayer to the tax authorities must meet the requirements established by law and contain reliable information about the circumstances with which the law connects the exercise of the right to make tax deductions.

Meanwhile, the tax authorities are not relieved of the obligation to prove both the fact of the presence of unreliable information in the primary documents submitted by the taxpayer, and the bad faith of the taxpayer when carrying out relevant business transactions.

The court found that the basis for the refusal to reimburse the amount of value added tax on the invoice issued by the supplier was the use of the simplified tax system by the supplier and his lack of obligation to pay value added tax on sales of goods to the taxpayer. In this regard, the tax authority believes that there is no real source for reimbursement from the budget to the taxpayer of the amounts of value added tax presented by this supplier.

When considering the case, the court also found that the indicated supplier issued an invoice to the taxpayer, the cost of the purchased goods (plywood raw materials, sawlogs, pine pulpwood) was paid by the taxpayer, taking into account value added tax.

Thus, the court came to the conclusion that the supplier, having issued an invoice with a separate line for value added tax, on the basis of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, must pay the amount of tax presented in the invoice, and the taxpayer, having paid the cost purchased goods (works, services), taking into account value added tax, has the right to declare the amount of tax to be deducted and reimbursed, in connection with which the court found the refusal to reimburse value added tax on the invoice issued by this supplier to be unfounded.

Similar conclusions were reached by the FAS of the East Siberian District in Resolution dated July 30, 2008 N A33-16437/07-F02-3580/08, as well as by the FAS of the West Siberian District in Resolution dated April 16, 2009 N F04-2122/2009(4284- A27-25).

In Resolution dated July 24, 2009 N KA-A41/6731-09, the FAS of the Moscow District verified the complaint of the tax authority, which raises the issue of canceling judicial acts due to the fact that the taxpayer, in violation of paragraphs 2, 5 of Article 169 of the Tax Code of the Russian Federation, presented a deduction value added tax on an invoice issued by the supplier illegally, since the counterparty is on the simplified tax system.

The court did not accept the tax authority's argument about the illegality of the taxpayer's presentation of a tax deduction for value added tax on the disputed invoice received by the taxpayer from a supplier located on the simplified tax system.

As the tax authority indicated, the taxpayer’s supplier applied the simplified tax system and, in violation of subparagraph 4 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation and paragraph 3 of Article 169 of the Tax Code of the Russian Federation, issued an invoice to the taxpayer indicating the amount of value added tax, therefore, in accordance with paragraph 5 of Article 173 The Tax Code of the Russian Federation must pay the received tax amounts to the budget.

The court indicated that improper fulfillment or failure by the counterparty to fulfill its obligations to pay taxes does not affect the buyer’s right to tax deductions if the documents submitted to the inspection for the application of the specified deduction comply with the requirements of the Tax Code of the Russian Federation. The legislation on taxes and fees does not impose on the taxpayer the implementation of control functions regarding the payment of value added tax by his counterparty, since these actions relate to the activities of the tax authority.

At the same time, the court noted that these circumstances cannot be legal grounds for refusing a deduction to a taxpayer who has complied with the procedure and conditions for its application.

In Resolution dated September 2, 2009 N A14-11246/2008360/28, the Federal Antimonopoly Service of the Central District rejected the tax authority’s argument that since the supplier applied the simplified tax system and was not a VAT payer, the taxpayer does not have the right to make tax deductions for settlements with this supplier. In the invoice and the certificate of work performed (major repairs of the workshop roof), the signatures on behalf of the head of the company were made not by the head himself, but by another person, which is confirmed by a handwriting examination.

At the same time, the court indicated that the issuance by the counterparty of a taxpayer who is not a payer of value added tax in connection with the application of the simplified tax system, an invoice highlighting the amount of tax does not affect the right of such a taxpayer to a tax deduction of this amount of tax, since by virtue of paragraph 5 of Article 173 The Tax Code of the Russian Federation in this case, the obligation to pay value added tax to the budget is assigned to the person applying the simplified tax system.

In Resolution dated September 28, 2009 N A53-24180/2008-C5-23, the FAS of the North Caucasus District also rejected the tax authority’s argument that the use of the simplified tax system by the counterparty of the entrepreneur who issued invoices to the company with a dedicated value added tax is the basis for refusal to refund value added tax.

In Resolution No. KA-A41/4585-09 dated May 26, 2009, the FAS Moscow District recognized as unfounded the tax authority’s complaint that, since the seller issued invoices to the taxpayer including the amounts of value added tax, the counterparty applies The simplified tax system and in accordance with Article 346.11 of the Tax Code of the Russian Federation is not recognized as a payer of value added tax, the inspection concluded that it was illegal to include amounts of value added tax in issued invoices.

The court found that the goods (diesel fuel) were received by the taxpayer and registered on the basis of invoices, which were submitted to the tax authority for verification and in the case materials. The tax authority has no complaints about the form and content of these documents; therefore, the taxpayer lawfully accepted VAT for deduction on the disputed invoice.

It should also be noted that the courts take a similar position with regard to the deduction of value added tax on invoices issued by payers of UTII and Unified Agricultural Tax.

Paragraph 5 of the commented article became the subject of consideration by the Constitutional Court of the Russian Federation for its compliance with the Constitution of the Russian Federation.

The Resolution of the Constitutional Court of the Russian Federation dated 06/03/2014 N 17-P "In the case of verifying the constitutionality of the provisions of paragraphs 6 and 7 of Article 168 and paragraph 5 of Article 173 of the Tax Code of the Russian Federation in connection with the complaint of the limited liability company "Trading House "Kamsnab"" indicates: provisions paragraphs 6 and 7 of Article 168 and paragraph 5 of Article 173 of the Tax Code of the Russian Federation in their interrelation should not be understood in law enforcement practice as allowing the recognition of a person who is not a payer of value added tax by virtue of paragraph three of paragraph 4 of Article 346.26 of the Tax Code of the Russian Federation and does not issue invoices to buyers - invoices with the amount of value added tax allocated in them, obligated to pay this tax to the budget only on the basis that such a person, believing it necessary to use the general taxation system, indicated it in his tax return, calculating it for the retail sale of goods (works, services) ) the amount of tax by calculation. Incorrect (in particular, erroneous) declaration of value added tax amounts should not lead to its collection, since the obligation to calculate and pay tax arises from the law (if there are grounds provided for by the Tax Code of the Russian Federation).

Thus, paragraphs 6 and 7 of Article 168 and paragraph 5 of Article 173 of the Tax Code of the Russian Federation do not contradict the Constitution of the Russian Federation, since, according to their constitutional and legal meaning in the system of current legal regulation, they do not imply the imposition on a person engaged in the retail sale of goods without issuing invoices to customers - invoices, the obligation to pay value added tax to the budget, if such a person, by the type of business activity he carries out, is a payer of the single tax on imputed income.

Based on the above and guided by Articles 6 and 47.1, part two of Article 71, Articles 72, 74, 75, 78, 79 and 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation decided to recognize paragraphs 6 and 7 of Article 168 and paragraph 5 of Article 173 of the Tax Code of the Russian Federation do not contradict the Constitution of the Russian Federation, since the provisions contained therein, in their constitutional and legal meaning in the system of current legal regulation, do not imply the possibility of imposing on a person engaged in the retail sale of goods without issuing invoices to customers, the obligation to pay to the value added tax budget, if such a person, by the type of business activity he carries out, is a payer of the single tax on imputed income.

Attention!

On January 1, 2014, the addition of Article 52 of the Tax Code of the Russian Federation, paragraph 6, comes into force, according to which the amount of tax is calculated in full rubles. A tax amount of less than 50 kopecks is discarded, and a tax amount of 50 kopecks or more is rounded up to a full ruble (clause 9 of Article 1 of Federal Law No. 248-FZ of July 23, 2013).

Thus, from the specified time, the corresponding provision will be enshrined in the Tax Code of the Russian Federation for all taxes. At the same time, with regard to VAT, a similar rule is currently enshrined in paragraph 17 of the Procedure for filling out a tax return for value added tax, approved by Order of the Ministry of Finance of Russia dated October 15, 2009 N 104n.

In paragraph 5 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 N 33 “On some issues arising in arbitration courts when considering cases related to the collection of value added tax”, it is explained that subparagraph 1 of paragraph 5 of Article 173 of the Tax Code of the Russian Federation provides for the obligation of persons non-tax payers, as well as persons exempt from fulfilling the duties of tax payers, if they issue an invoice to the buyer with the allocation of the tax amount, transfer the corresponding amount to the budget.

However, the emergence in this case of an obligation to transfer tax to the budget does not mean that the person who issued the invoice acquires the status of a taxpayer in relation to such transactions, including the right to apply tax deductions.

The specified person is only charged with the obligation to transfer tax to the budget, the amount of which, by virtue of the direct indication of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, is determined based on the amount reflected in the corresponding invoice issued to the buyer. The possibility of reducing this amount by tax deductions is not provided for by the above norm or other provisions of Chapter 21 of the Code.

Also, paragraph 6 of the said Resolution states that, by virtue of subparagraph 2 of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, tax is also subject to payment to the budget if, when the taxpayer sells goods (work, services), the sales operations of which are not subject to taxation, the buyer was charged invoice highlighting the tax amount.

When applying this norm in conjunction with other provisions of Chapter 21 of the Tax Code of the Russian Federation, it is necessary to take into account that in such circumstances the obligation to pay tax falls on the person who is the taxpayer, and therefore this person has the right to apply tax deductions for goods (work, services), property rights acquired to carry out these operations. At the same time, the taxpayer is obliged to make appropriate adjustments to the calculation of corporate income tax (personal income tax), if the amount of tax claimed for deduction was previously taken into account by him when calculating these taxes as part of the cost of purchased goods (work, services), property rights.

In paragraph 28 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 N 33 “On some issues arising in arbitration courts when considering cases related to the collection of value added tax” it is additionally reported that when applying paragraph 2 of Article 173 of the Tax Code of the Russian Federation, courts, guided by the principle equality of taxation (clause 1 of Article 3 of the Tax Code of the Russian Federation), must proceed from the fact that the provisions of the said clause on the deadline for declaring tax deductions cannot be interpreted as establishing different rules in the absence of objective differences.

In this regard, the right to deduct tax can be exercised by the taxpayer only within the period established by this norm, regardless of whether the application of tax deductions results in a positive or negative difference (that is, both the amount of tax to be reimbursed and the amount of tax to be paid to the budget).

Official position.

Thus, in the letter of the Ministry of Finance of Russia dated December 3, 2014 N 03-07-08/61765, the issue of paying VAT on the sale of goods (work, services), the place of sale of which is not recognized as the territory of the Russian Federation, is considered, if the taxpayer has issued an invoice highlighting the amount of VAT . On this issue, the Department of the Ministry of Finance of Russia gave the following clarification.

In the event that a taxpayer, when selling goods (work, services), transactions for the sale of which are not subject to taxation, including due to the fact that the place of their sale is not recognized as the territory of the Russian Federation, invoices highlighting the entire amount of value added tax the amount of tax indicated in this invoice is subject to payment to the budget.

Official position.

In the letter of the Federal Tax Service of Russia dated January 27, 2014 N ГД-4-3/1168@ “On the procedure for calculating VAT” the following is reported.

As for services provided on the basis of previously concluded contracts and not completed as of September 13, 2013, then in cases where changes are made to the contracts, according to which the cost of services will be reduced by the amount of value added tax, the amount of tax calculated and paid by sellers of services upon receipt of payment (partial payment) and returned to buyers on the basis of amendments to contracts, can be accepted by sellers for deduction.

In cases where buyers of services agree to make changes to contracts, according to which the cost of services excluding value added tax will correspond to the previously established cost of services including tax, the amount of value added tax calculated and paid by sellers upon receipt of payment (partial payment), should not be accepted for deduction from the seller.

In cases where changes will not be made to the contracts and services will continue to be provided taking into account value added tax, the amount of tax presented by sellers to buyers upon their provision, on the basis of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, is subject to payment to the budget. In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the relevant invoices transferred by sellers to buyers of services.

Official text:

Article 173. Amount of tax payable to the budget

1. The amount of tax payable to the budget is calculated based on the results of each tax period, as reduced by the amount of tax deductions provided for in Article 171 of this Code (including tax deductions provided for in paragraph 3 of Article 172 of this Code), the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with this chapter.

The paragraph is no longer valid.

2. If the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with paragraph 3 of Article 170 of this Code, the positive difference between the amount of tax deductions and the amount tax calculated on transactions recognized as an object of taxation in accordance with subparagraphs 1 and 2 of paragraph 1 of Article 146 of this Code is subject to reimbursement to the taxpayer in the manner and on the terms provided for in Articles 176 and 176.1 of this Code, except for cases when a tax return is filed by the taxpayer three years after the end of the relevant tax period.

The paragraph has been deleted.

The paragraph is no longer valid.

3. The amount of tax payable when importing goods into the territory of the Russian Federation and other territories under its jurisdiction is calculated in accordance with paragraph 5 of Article 166 of this Code.

4. When selling goods (work, services) specified in Article 161 of this Code, the amount of tax payable to the budget is calculated and paid in full by the tax agents specified in Article 161 of this Code.

5. The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer highlighting the amount of tax:

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

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

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

Lawyer's comment:

The taxpayer independently calculates the amount of VAT payable to the budget at the end of each tax period (1 month or quarter). In this case, the total amount of tax calculated separately for each transaction, obtained by adding up the VAT amounts, is reduced by the amount of tax deductions. If in any tax period the amount of tax deductions exceeds the total amount of tax calculated by the taxpayer, the positive difference between the amount of tax deductions and the amount of tax is subject to reimbursement to the taxpayer in accordance with the conditions of Article 176. Reimbursement is not made if the tax return is filed after the expiration of three years after the end of the relevant tax period. The amount of VAT payable when importing goods into the customs territory of the Russian Federation is calculated as a percentage of the tax base corresponding to the tax rate. In cases where the taxpayer is obliged to determine the tax base separately for each group of imported goods, the amount of tax is calculated separately for each of such tax bases; in this case, the total amount of VAT is calculated as the amount obtained as a result of adding the amounts of taxes calculated separately for each of these tax bases.

In the case of the sale of goods (work, services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, as well as in other cases provided for in Article 161 of the Tax Code of the Russian Federation, the amount of VAT subject to payment to the budget is determined and paid to the budget in full by tax agents at the expense of funds to be transferred to the taxpayer or other persons specified by the taxpayer. The obligation to pay the corresponding amount of tax to the budget does not depend on the receipt of this amount from the buyer (meaning the case of applying the accounting policy “on payment”), since, within the meaning of paragraph 5, the procedure for calculating the amount of tax payable to the budget is separate from the general procedure for calculating tax and, therefore, does not depend, among other things, on the accounting policy of the taxpayer.

At the same time, the statement sometimes expressed that in the event of the above-described violation, a taxpayer exempted from fulfilling taxpayer obligations related to the calculation and payment of tax, in accordance with Article 145 of the Tax Code of the Russian Federation, allegedly loses the right to such exemption, starting from the tax period in which such a violation was committed. The illegality of this conclusion follows from the fact that the list of circumstances that are the basis for the acquisition and termination of the above-mentioned right is exhaustively established by Article 145. It should be noted that before amendments were made to paragraph 5 of Article 173 by the Federal Law of May 29, 2002 No. 57-FZ, legislation was not provided for no consequences (neither for sellers nor for buyers) in the event of improper issuance of invoices to buyers by persons who are not taxpayers.