Subclause 4.1 of clause 2 of Article 146 of the Code. VAT taxation of works and services performed by state, budget and autonomous institutions

1. When producing excisable goods, payers are recognized as:

1.1. organizations and individual entrepreneurs engaged in the production of excisable goods from any type of raw material (supplied or own) and (or) using excisable goods.

The production of excisable goods also includes:

bottling of excisable alcoholic beverages and beer, carried out as part of the general process of production of these excisable goods in accordance with the requirements of state standards and (or) other technical legal acts that regulate the process of production of these excisable goods and are approved in the manner prescribed by law;

any types of mixing of goods (including infusion of alcoholic products) in places of their storage and sale (with the exception of alcoholic products sold at retail prices produced by mixing and (or) infusion of alcoholic products by organizations, individual entrepreneurs engaged in public catering), as a result which excisable goods are obtained;

1.2. legal entities of the Republic of Belarus engaged in contract production of tobacco products.

2. When importing excisable goods into the territory of the Republic of Belarus under commission agreements, mandates and other similar civil law agreements, organizations and individual entrepreneurs importing excisable goods are recognized as payers.

3. When selling excisable goods imported into the territory of the Republic of Belarus under commission agreements, mandates and other similar civil law agreements, payers are recognized as organizations and individual entrepreneurs entrusted with the sale of excisable goods.

4. When selling (transferring) liquefied hydrocarbon gas and compressed natural fuel gas for refueling vehicles (including own vehicles) through gas stations, as well as using fuel dispensing equipment, payers are recognized as organizations and individual entrepreneurs who carry out such sales (transfer ).

5. When using (selling, transferring) diesel fuel purchased (received) for the production of diesel fuel with methyl esters of fatty acids for other purposes than for its intended purpose, payers are recognized as organizations and individual entrepreneurs that allowed such misuse (sale, transfer).

6. Legal entities of the Republic of Belarus are recognized as payers when used (sold, transferred) not for the intended purpose:

raw ethyl alcohol from food raw materials purchased (obtained) for the production of rectified ethyl alcohol;

rectified ethyl alcohol from food raw materials purchased (obtained) for the production of alcoholic beverages, vinegar and low-alcohol drinks;

alcohol purchased (obtained) for the production of medicines, veterinary drugs;

1. The following transactions are recognized as the object of taxation:

1) sale of goods (work, services) on the territory of the Russian Federation, including the sale of collateral and transfer of goods (results of work performed, provision of services) under an agreement on the provision of compensation or novation, as well as the transfer of property rights.

For the purposes of this chapter, the transfer of ownership of goods, results of work performed, and the provision of services free of charge is recognized as the sale of goods (work, services);

2) transfer of goods on the territory of the Russian Federation (performance of work, provision of services) for one’s own needs, the costs of which are not accepted for deduction (including through depreciation charges) when calculating corporate income tax;

3) carrying out construction and installation work for own consumption;

2. For the purposes of this chapter, the following are not recognized as objects of taxation:

1) operations specified in paragraph 3 of Article 39 of this Code;

2) transfer, free of charge, of residential buildings, kindergartens, clubs, sanatoriums and other social, cultural, housing and communal facilities, roads, electrical networks, substations, gas networks, water intake structures and other similar facilities to state authorities and local governments (or by decision of these bodies, specialized organizations that carry out the use or operation of these objects for their intended purpose), as well as the transfer on a free basis of objects of social and cultural significance to the treasury of the republic within the Russian Federation, the treasury of the territory, region, city of federal significance, autonomous region, autonomous district, to the municipal treasury of the corresponding urban, rural settlement or other municipal entity;

3) transfer of property of state and municipal enterprises purchased through privatization;

4) performance of work (provision of services) by bodies included in the system of state authorities and local self-government bodies, within the framework of the exercise of the exclusive powers assigned to them in a certain field of activity in the event that the obligation to perform the specified work (provision of services) is established by the legislation of the Russian Federation, legislation of the constituent entities of the Russian Federation, acts of local government bodies;

4.1) performance of work (provision of services) by state institutions, as well as budgetary and autonomous institutions within the framework of a state (municipal) assignment, the source of financial support for which is a subsidy from the corresponding budget of the budgetary system of the Russian Federation;

4.2) provision of services for granting the right of passage of vehicles on public toll roads of federal significance (toll sections of such highways), carried out in accordance with the trust management agreement for highways, the founder of which is the Russian Federation, with the exception of services for which payment is made for the provision remains at the disposal of the concessionaire in accordance with the concession agreement;

5) transfer on a free basis, provision of services for the transfer for free use of fixed assets to state authorities and management bodies and local governments, as well as state and municipal institutions, state and municipal unitary enterprises;

6) operations for the sale of land plots (shares in them);

7) transfer of the organization’s property rights to its legal successor(s);

8) transfer of funds or real estate for the formation or replenishment of the endowment capital of a non-profit organization in the manner established by Federal Law of December 30, 2006 N 275-FZ “On the procedure for the formation and use of endowment capital of non-profit organizations”;

8.1) transfer of real estate in the event of dissolution of the endowment capital of a non-profit organization, cancellation of a donation, or in another case, if the return of such property transferred to replenish the endowment capital of a non-profit organization is provided for by the donation agreement and (or) Federal Law of December 30, 2006 N 275- Federal Law “On the procedure for the formation and use of endowment capital of non-profit organizations.” The norm of this subparagraph is applied when such property is transferred by a non-profit organization - the owner of endowment capital to the donor, his heirs (successors) or another non-profit organization in accordance with Federal Law of December 30, 2006 N 275-FZ “On the procedure for the formation and use of endowment capital of non-profit organizations” ;

9.3) transfer of ownership, free of charge, to educational and scientific non-profit organizations for the implementation of statutory activities of state property that is not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity;

10) provision of services for the transfer for free use to non-profit organizations for the implementation of statutory activities of state property that is not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region , autonomous district, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity;

11) performance of work (provision of services) as part of additional measures aimed at reducing tension in the labor market of the constituent entities of the Russian Federation, implemented in accordance with decisions of the Government of the Russian Federation;

12) operations for the sale (transfer) on the territory of the Russian Federation of state or municipal property that is not assigned to state enterprises and institutions and constitutes the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as municipal property not assigned to municipal enterprises and institutions and constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, purchased in the manner established by Federal Law of July 22, 2008 N 159-FZ “On the peculiarities of the alienation of real estate property in state or municipal ownership and leased by small and medium-sized businesses, and on amendments to certain legislative acts of the Russian Federation";

13) related to the implementation of activities provided for by the Federal Law “On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup, the 2020 UEFA European Football Championship and amendments to certain legislative acts of the Russian Federation”, operations for the sale of goods (work, services) and property rights by the Organizing Committee "Russia-2018", subsidiaries of the Organizing Committee "Russia-2018", the Russian Football Union, producers of FIFA media information and suppliers of goods (work, services) FIFA, determined by the specified Federal law and being Russian organizations, as well as related to the implementation of measures for the preparation and holding of the 2020 UEFA European Football Championship in the Russian Federation, provided for by the said Federal Law, operations for the sale of goods (work, services) and property rights by the Russian Football Union and local organizational structure, commercial partners of UEFA, suppliers of goods (works, services) of UEFA and broadcasters of UEFA, defined by the said Federal Law, in the period up to December 31, 2020 inclusive.

14) sale by an autonomous non-profit organization created in accordance with the Federal Law “On the protection of the interests of individuals who have deposits in banks and separate structural divisions of banks registered and (or) operating in the territory of the Republic of Crimea and in the territory of the federal city of Sevastopol”, property and property rights and the provision by this organization of services to represent the interests of investors;

15) operations for the sale of property and (or) property rights of debtors recognized as insolvent (bankrupt) in accordance with the legislation of the Russian Federation;

16) transfer, free of charge, to state authorities of the constituent entities of the Russian Federation and local governments of property, including unfinished construction projects, by a joint-stock company that was created for the purpose of implementing agreements on the creation of special economic zones and 100 percent of the shares of which belongs to the Russian Federation, and economic companies created with the participation of such a joint stock company for these purposes, which are management companies of special economic zones;

17) transfer, free of charge, into the ownership of a non-profit organization, the main statutory goals of which are the popularization and holding of the FIA Formula 1 World Championship, an object of real estate for holding road racing of the Formula 1 series, as well as simultaneously with the specified an object of real estate has intangible assets and (or) infrastructure facilities and movable property necessary to ensure the functioning of the specified object of real estate;

18) transfer, free of charge, to state authorities and (or) local governments of the results of work on the creation and (or) reconstruction of heat supply facilities, centralized hot water supply systems, cold water supply and (or) wastewater disposal, individual objects of such systems located in the state or municipal property and transferred for temporary possession and use to the taxpayer in accordance with lease agreements, as well as heating supply facilities, centralized hot water supply systems, cold water supply and (or) sanitation, individual objects of such systems created by the taxpayer during the validity period of lease agreements, in the case the conclusion by this taxpayer of concession agreements in relation to these objects in accordance with Part 1 of Article 51 of the Federal Law of July 21, 2005 N 115-FZ “On Concession Agreements”;

19) transfer of real estate objects free of charge to the state treasury of the Russian Federation;

20) transfer of property free of charge into the ownership of the Russian Federation for the purposes of organizing and (or) conducting scientific research in Antarctica.

Commentary to Art. 146 Tax Code of the Russian Federation

Article 146 of the Tax Code of the Russian Federation contains 2 lists of operations:

a) which relate to objects of VAT taxation (clause 1 of Article 146 of the Tax Code of the Russian Federation);

b) which are not recognized as an object of taxation for the purposes of applying Chapter. 21 of the Tax Code of the Russian Federation (clause 2 of Article 146 of the Tax Code of the Russian Federation).

According to paragraph 1 of Art. 146 of the Tax Code of the Russian Federation the following are recognized as objects of VAT taxation:

1) sale of goods (works, services) on the territory of the Russian Federation, as well as transfer of property rights. In turn, the sale of goods, works or services by an organization or an individual entrepreneur is recognized as the transfer on a paid basis (including the exchange of goods, works or services) of ownership of goods, the results of work performed by one person for another person, the provision of services for a fee by one person to another face. This is stated in paragraph 1 of Art. 39 Tax Code of the Russian Federation.

For the purposes of ch. 21 of the Tax Code of the Russian Federation, the transfer of ownership of goods, the results of work performed, and the provision of services free of charge are recognized as the sale of goods (work, services).

In addition, sales are recognized as the sale of collateral and the transfer of goods (results of work performed, provision of services) under an agreement on the provision of compensation or novation (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation);

2) transfer of goods (performance of work, provision of services) for one’s own needs on the territory of the Russian Federation. True, only if the costs of purchasing the specified goods (works, services) are not taken into account when taxing profits.

Let us remind you: when calculating income tax, income is reduced only by those expenses that meet the criteria established by Art. 252 of the Tax Code of the Russian Federation. That is, costs must be justified (economically justified), documented and incurred for activities aimed at generating income.

Also, the object of VAT taxation arises in the event of the transfer to structural units of property acquired for their own needs;

3) carrying out construction and installation work for own consumption. The Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 23, 2010 N 3309/10 states that, according to paragraphs. 3 p. 1 art. 146 of the Tax Code of the Russian Federation, those works that result in the creation of objects to be used in its own activities by the organization are subject to qualification as construction and installation work performed for its own consumption. When constructing objects for the purpose of their subsequent sale, construction work cannot be qualified as being carried out for one’s own consumption, and the object of VAT taxation arises upon the sale of the constructed object. If the specified purpose of construction is proven, then it has no legal significance whether it was financed by third parties during the construction period and whether relevant agreements were concluded involving the alienation of the constructed objects;

4) importation of goods into the territory of the Russian Federation and other territories under its jurisdiction.

The import of goods into the customs territory of the Customs Union means the commission of actions related to crossing the customs border, as a result of which goods arrived in the customs territory of the Customs Union by any means, including shipment by international mail, the use of pipeline transport and power lines, before their release by customs authorities . This definition is given in paragraphs. 3 p. 1 art. 4 of the Customs Code of the Customs Union.

The import of goods into the Russian Federation in accordance with Federal Law No. 311-FZ of November 27, 2010 “On Customs Regulation in the Russian Federation” (hereinafter referred to as Law No. 311-FZ) means the actual crossing of goods by the State Border of the Russian Federation and (or) the limits of the territories of artificial islands, installations and structures over which the Russian Federation exercises jurisdiction in accordance with the legislation of the Russian Federation and international law, as a result of which goods arrived from other member states of the Customs Union or from territories not included in the single customs territory of the Customs Union , to the territory of the Russian Federation and (or) on the territory of artificial islands, installations and structures over which the Russian Federation exercises jurisdiction in accordance with the legislation of the Russian Federation and international law, and all subsequent actions with these goods before their release by customs authorities, when such release is provided for by the customs legislation of the Customs Union and (or) Law N 311-FZ (clauses 1 clause 1 art. 5 of Law N 311-FZ).

In paragraph 2 of Art. 146 of the Tax Code of the Russian Federation lists transactions that are not recognized as an object of taxation. These are, in particular:

1. Operations specified in clause 3 of Art. 39 of the Tax Code of the Russian Federation, that is, which are not recognized as sales, which include: carrying out operations related to the circulation of Russian or foreign currency (for

excluding numismatic purposes); transfer of fixed assets, intangible assets and (or) other property of the organization its

to the legal successor(s) during the reorganization of this organization; transfer of fixed assets, intangible assets and (or) other property to non-profit

organizations to carry out their main statutory activities not related to business activities; transfer of property, if such transfer is of an investment nature (in particular, contributions to the authorized (share) capital of business companies and partnerships, contributions under a simple partnership agreement (agreement on joint activities), an investment partnership agreement, share contributions to mutual funds of cooperatives); transfer of property and (or) property rights under a concession agreement in accordance with

legislation of the Russian Federation; transfer of property within the limits of the down payment to a participant in a business company or

partnership (its legal successor or heir) upon exit (disposal) from a business company or partnership, as well as upon distribution of the property of a liquidated business company or partnership between its participants; transfer of property within the limits of the initial contribution to a participant in a simple partnership agreement (a joint activity agreement), an investment partnership agreement or his legal successor in the event of the separation of his share from the property that is in common ownership of the parties to the agreement, or the division of such property; transfer of residential premises to individuals in state or municipal buildings

housing stock during privatization; seizure of property by confiscation, inheritance of property, as well as the conversion into the property of other persons of ownerless and abandoned things, ownerless animals, finds, treasure in accordance with the norms of the Civil Code of the Russian Federation; transfer of property to participants of a business company or partnership during distribution

property and property rights of a liquidated organization that is a foreign organizer of the XXII Olympic Winter Games and XI Paralympic Winter Games 2014 in Sochi or a marketing partner of the International Olympic Committee in accordance with Art. 3.1 of the Federal Law of December 1, 2007 N 310-FZ “On the organization and holding of the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi, the development of the city of Sochi as a mountain climatic resort and amendments to certain legislative acts of the Russian Federation” . This provision applies if the creation and liquidation of an organization that is a foreign organizer of the XXII Olympic Winter Games and XI Paralympic Winter Games 2014 in Sochi or a marketing partner of the International Olympic Committee in accordance with Art. 3.1 of the said Federal Law are carried out during the organization of the XXII Olympic Winter Games and XI

Paralympic Winter Games 2014 in Sochi, established by Part 1 of Art. 2 of the specified Federal Law; other operations in cases provided for by the Tax Code of the Russian Federation.

2. Transfer, free of charge, of residential buildings, kindergartens, clubs, sanatoriums and other social, cultural, housing and communal facilities, as well as roads, electrical networks, substations, gas networks, water intake structures and other similar facilities to government bodies and authorities local government (or by decision of these bodies to specialized organizations that use or operate these facilities for their intended purpose).

3. Transfer of property of state and municipal enterprises purchased through privatization.

Privatization of state and municipal property is the alienation for compensation of property owned by the Russian Federation, constituent entities of the Russian Federation, municipalities, into the ownership of individuals and (or) legal entities. This follows from Art. 1 of the Federal Law of December 21, 2001 N 178-FZ “On the privatization of state and municipal property.”

4. Performance of work (provision of services) by bodies included in the system of state authorities and local self-government bodies, within the framework of the exercise of the exclusive powers assigned to them in a certain field of activity, if the obligation to perform the specified work (provision of services) is established by the legislation of the Russian Federation, legislation of the constituent entities of the Russian Federation, acts of local government bodies (clause 4, clause 2, article 146 of the Tax Code of the Russian Federation).

When applying this norm, the following conditions must be simultaneously met:

a) work (services) must be performed (provided) by bodies included in the system of bodies

state authorities and local governments;

b) the obligation to perform these works (services) must be established by federal legislation or the legislation of the constituent entities of the Russian Federation or acts of local government bodies;

c) these bodies must be entrusted with exclusive powers within the established

field of activity.

Also, this norm of the Tax Code of the Russian Federation applies only to work (services) performed (rendered) by these bodies, and does not apply to the sale of goods (for example, in particular real estate) carried out by these bodies.

For example, the following services are not subject to VAT:

— State Fire Service to ensure fire safety of settlements and organizations (enterprises) (Letter of the Ministry of Taxes and Taxes of Russia dated March 2, 2001 N VG-6-03/184@);

- State courier service of the Russian Federation, provided for in the list given in Art. 2 of the Federal Law of December 17, 1994 N 67-FZ “On Federal Courier Communications” (Letter of the Ministry of Finance of Russia dated April 8, 2005 N 03-04-11/77);

— for the protection of property of individuals and legal entities on the basis of agreements concluded with them, which are provided by private security units (Letter of the Ministry of Taxes and Taxes of Russia dated June 29, 2004 N 03-1-08/1462/17@);

- provided by the territorial bodies of the Federal Agency for Real Estate for the right to conclude a lease agreement (Letter of the Ministry of Taxes and Taxes of Russia dated June 10, 2002 N 03-1-09/1558/16-X194).

5. Performance of work (provision of services) by state institutions, as well as budgetary and autonomous institutions within the framework of a state (municipal) assignment, the source of financial support for which is a subsidy from the corresponding budget of the budgetary system of the Russian Federation.

6. Provision of services for granting the right of passage of vehicles on public toll roads of federal significance (toll sections of such highways), carried out in accordance with the trust management agreement for highways, the founder of which is the Russian Federation, with the exception of services for which payment is made for the provision remains at the disposal of the concessionaire in accordance with the concession agreement.

7. Transfer on a free basis, provision of services for the transfer for free use of fixed assets to state authorities and management bodies and local governments, as well as state and municipal institutions, state and municipal unitary enterprises.

8. Sale of land plots (shares in them).

9. Transfer of the organization’s property rights to its legal successor(s).

10. Transfer of funds or real estate for the formation or replenishment of the endowment capital of a non-profit organization in the manner established by Federal Law of December 30, 2006 N 275-FZ “On the procedure for the formation and use of endowment capital of non-profit organizations.”

11. Transfer of real estate in the event of dissolution of the endowment capital of a non-profit organization, cancellation of a donation, or in another case, if the return of such property transferred to replenish the endowment capital of a non-profit organization is provided for by the donation agreement and (or) Federal Law of December 30, 2006 N 275 -FZ “On the procedure for the formation and use of endowment capital of non-profit organizations.” The norm of this subparagraph is applied when such property is transferred by a non-profit organization - the owner of endowment capital to the donor, his heirs (legal successors) or another non-profit organization in accordance with Federal Law of December 30, 2006 N 275-FZ “On the procedure for the formation and use of endowment capital of non-profit organizations "

12. According to paragraphs. 9 paragraph 2 art. 146 of the Tax Code of the Russian Federation do not recognize as an object of VAT taxation transactions for the sale by taxpayers who are Russian organizers of the Olympic Games and Paralympic Games of goods (work, services) and property rights, carried out in agreement with persons who are foreign organizers of the Olympic Games and Paralympic Games as part of the execution obligations under the agreement concluded by the International Olympic Committee with the Olympic Committee of Russia and the city of Sochi for the holding of the XXII Olympic Winter Games and XI Paralympic Winter Games 2014 in Sochi.

According to Art. 3 of Federal Law N 310-FZ, Russian game organizers are:

— autonomous non-profit organization “Organizing Committee of the XXII Olympic Winter Games and XI Paralympic Winter Games 2014 in Sochi”;

- organizations created by Federal Law that carry out management and other socially useful functions related to engineering surveys during construction, design, construction and reconstruction, organization of operation of facilities necessary for the Olympic Games and Paralympic Games and the development of Sochi as a mountain-climatic city resort

13. Provision of services for the transfer for free use to non-profit organizations for the implementation of statutory activities of state property that is not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region , autonomous district, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity (clause 10, clause 2, article 146 of the Tax Code of the Russian Federation).

14. Performance of work (provision of services) as part of additional measures aimed at reducing tension in the labor market of the constituent entities of the Russian Federation, implemented in accordance with decisions of the Government of the Russian Federation (clause 11, clause 2, article 146 of the Tax Code of the Russian Federation).

15. Operations for the sale (transfer) on the territory of the Russian Federation of state or municipal property that is not assigned to state enterprises and institutions and constitutes the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as municipal property not assigned to municipal enterprises and institutions and constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, purchased in the manner established by Federal Law of July 22, 2008 N 159-FZ “On the Peculiarities of Alienation real estate that is state-owned by constituent entities of the Russian Federation or municipally owned and leased by small and medium-sized businesses, and on amendments to certain legislative acts of the Russian Federation" (clauses 12 paragraph 2 art. 146 of the Tax Code of the Russian Federation).

Please note that from January 1, 2015, the list of VAT-free transactions includes transactions for the sale of property and (or) property rights of debtors recognized as insolvent (bankrupt) in accordance with the legislation of the Russian Federation (clause 15, clause 2, article 146 The Tax Code of the Russian Federation as amended by Federal Law No. 366-FZ of November 24, 2014 “On Amendments to Part Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation”).

2. For the purposes of this chapter, the following are not recognized as objects of taxation:

3) transfer of property of state and municipal enterprises purchased through privatization;

Information about changes:

6) operations for the sale of land plots (shares in them);

7) transfer of the organization’s property rights to its legal successor(s);

8) transfer of funds or real estate for the formation or replenishment of the target capital of a non-profit organization in the manner established by Federal Law

8.1) transfer of real estate in the event of dissolution of the endowment capital of a non-profit organization, cancellation of a donation, or in another case, if the return of such property transferred to replenish the endowment capital of a non-profit organization is provided for by the donation agreement and (or) Federal Law of December 30, 2006 N 275- Federal Law "On the procedure for the formation and use of endowment capital of non-profit organizations." The norm of this subparagraph is applied when such property is transferred by a non-profit organization - the owner of endowment capital to the donor, his heirs (successors) or another non-profit organization in accordance with Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of endowment capital of non-profit organizations" ;

Information about changes:

Federal Law of November 25, 2009 N 281-FZ, paragraph 2 of Article 146 of this Code is supplemented by subparagraph 10, which comes into force on January 1, 2010, but not earlier than after one month from the date of official publication of the said Federal Law

12) operations for the sale (transfer) on the territory of the Russian Federation of state or municipal property that is not assigned to state enterprises and institutions and constitutes the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, Autonomous Okrug, as well as municipal property not assigned to municipal enterprises and institutions and constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, purchased in the manner established by Federal Law of July 22, 2008 N 159-FZ "On the peculiarities of the alienation of real estate property in state or municipal ownership and leased by small and medium-sized businesses, and on amendments to certain legislative acts of the Russian Federation";

13) related to the implementation of activities provided for by the Federal Law “On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup, the 2020 UEFA European Football Championship and amendments to certain legislative acts of the Russian Federation”, operations for the sale of goods (works, services) and property rights by the Organizing Committee "Russia-2018", subsidiaries of the Organizing Committee "Russia-2018", the Russian Football Union, producers of FIFA media information and suppliers of goods (works, services) FIFA, determined by the specified Federal law and being Russian organizations, as well as related to the implementation of measures for the preparation and holding of the 2020 UEFA European Football Championship in the Russian Federation, provided for by the said Federal Law, operations for the sale of goods (work, services) and property rights by the Russian Football Union and local organizational structure, commercial partners of UEFA, suppliers of goods (works, services) of UEFA and broadcasters of UEFA, defined by the specified Federal Law, in the period up to December 31, 2020 inclusive.

Information about changes:

Federal Law of April 20, 2014 N 78-FZ, paragraph 2 of Article 146 of this Code is supplemented by subparagraph 14, which applies to legal relations that arose from the date of entry into force of Federal Law of April 2, 2014 N 39-FZ

Information about changes:

Federal Law of November 24, 2014 N 366-FZ, paragraph 2 of Article 146 of this Code is supplemented by subparagraph 15, which comes into force no earlier than one month from the date of official publication of the said Federal Law and no earlier than the 1st day of the next tax period according to value added tax

15) operations for the sale of property and (or) property rights of debtors recognized as insolvent (bankrupt) in accordance with the legislation of the Russian Federation;

Information about changes:

Clause 2 was supplemented by subclause 16 from January 1, 2018 - Federal Law of November 27, 2017 N 351-FZ

17) transfer free of charge:

into the ownership of a non-profit organization, the main statutory goals of which are the popularization and holding of the FIA Formula 1 World Championship, an object of real estate for holding road-circuit car racing of the Formula 1 series, as well as simultaneously with the specified object of real estate, intangible assets and (or) infrastructure and movable property necessary to ensure the functioning of the specified real estate object;

into state or municipal ownership of a real estate object intended for holding sporting events in speed skating, as well as, simultaneously with the specified real estate object, infrastructure facilities and movable property necessary to ensure the functioning of the specified real estate object;

Information about changes:

Clause 2 was supplemented by subclause 18 from January 1, 2019 - Federal Law of November 12, 2018 N 414-FZ

Information about changes:

Clause 2 was supplemented by subclause 19 from July 1, 2019 - Federal Law of April 15, 2019 N 63-FZ

19) transfer of real estate objects free of charge to the state treasury of the Russian Federation;

Information about changes:

Clause 2 was supplemented by subclause 20 from April 15, 2019 - Federal Law of April 15, 2019 N 63-FZ

20) transfer of property free of charge into the ownership of the Russian Federation for the purposes of organizing and (or) conducting scientific research in Antarctica.

77 Moscow city

Publication date: 12/15/2017

Question: On the procedure for applying subclause 4.1 of clause 2 of Article 146 and clause 3 of Article 161 of the Tax Code of the Russian Federation

Answer:

The Federal Tax Service, in connection with numerous requests from territorial tax authorities and taxpayers regarding the payment of value added tax (hereinafter referred to as VAT) when government agencies provide rental services for state (municipal) property, reports the following.

According to subclause 4.1 of clause 2 of Article 146 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), operations involving the provision of services by state-owned institutions are not recognized as subject to taxation by value added tax.

Based on Article 123.22 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), a state institution is a state (municipal) institution.

By virtue of the provisions of Articles 214, 215 and 296 of the Civil Code, property is assigned to state (municipal) institutions with the right of operational management.

Taking into account the above, when state-owned institutions provide services for the rental of state (municipal) property assigned to state-owned institutions (including state authorities and management bodies, as well as local governments) with the right of operational management, the object of VAT taxation does not arise. In this regard, tenants of such property do not pay VAT as a tax agent.

In accordance with paragraph 3 of Article 161 of the Code, when federal property, property of constituent entities of the Russian Federation and municipal property are provided on the territory of the Russian Federation by state authorities and local government bodies, the VAT tax base is determined as the amount of rent including tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, the tax agents are the tenants of the specified property. These persons are required to calculate, withhold from income paid to the lessor, and pay the appropriate amount of tax to the budget.

In accordance with Article 214 of the Civil Code, state property in the Russian Federation is property owned by the Russian Federation (federal property), and property owned by the subjects of the Russian Federation - republics, territories, regions, cities of federal significance, autonomous regions, autonomous okrugs (property of the subject
Russian Federation).

Funds from the corresponding budget and other state property not assigned to state enterprises and institutions constitute the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district.

According to Article 215 of the Civil Code, property owned by urban and rural settlements, as well as other municipal entities, is municipal property.

Local budget funds and other municipal property not assigned to municipal enterprises and institutions constitute the municipal treasury of the corresponding urban, rural settlement or other municipal entity.

Taking into account the above, when state authorities and management bodies, local governments provide for rent state (municipal) property that is not assigned to state (municipal) enterprises and institutions, constituting the state (municipal) treasury, the obligation to calculate and pay VAT rests with the tenant, being a tax agent.

A similar conclusion follows from the Rulings of the Supreme Court of the Russian Federation of November 15, 2017 No. 309-KG17-16472, of September 27, 2017 No. 301-KG17-13104, of March 26, 2015 No. 310-KG15-1150.

This position has been agreed upon with the Russian Ministry of Finance.

Disseminate this letter to lower tax authorities and taxpayers.

Acting State Councilor
Russian Federation 3rd class
D.S. Satin

Report non-compliance with this recommendation by the tax authority

The Federal Tax Service draws the attention of users of the reference database to the fact that the information you send about cases of failure by tax authorities to comply with clarifications of the Federal Tax Service of Russia is not:

an appeal in the sense given to it by the Federal Law of the Russian Federation of May 2, 2006 No. 59-FZ “On the procedure for considering appeals from citizens of the Russian Federation”;
a complaint against the action (inaction) of tax authorities in accordance with the norms established by Articles 138-141 of the Tax Code of the Russian Federation.

This information will be used by the Federal Tax Service to improve the quality of tax administration and work with taxpayers.

CHAPTER 3.5. TAXPAYERS - PARTICIPANTS OF SPECIAL INVESTMENT CONTRACTS (introduced by Federal Law dated 02.08.2019 N 269-FZ)

Chapter 4. REPRESENTATION IN RELATIONS GOVERNED BY LEGISLATION ON TAXES AND FEES

Section III. TAX AUTHORITIES. CUSTOMS AUTHORITIES. FINANCIAL AUTHORITIES. INTERNAL AFFAIRS BODIES. INVESTIGATIVE BODIES. RESPONSIBILITY OF TAX AUTHORITIES, CUSTOMS AUTHORITIES, INTERNAL AFFAIRS AUTHORITIES, INVESTIGATIVE AUTHORITIES, THEIR OFFICIALS (as amended by Federal Laws dated 07/09/1999 N 154-FZ, dated 06/30/2003 N 86-FZ, dated 06/29/20 04 N 58-ФЗ, dated December 28, 2010 N 404-FZ)

Chapter 5. TAX AUTHORITIES. CUSTOMS AUTHORITIES. FINANCIAL AUTHORITIES. RESPONSIBILITY OF TAX AUTHORITIES, CUSTOMS AUTHORITIES, THEIR OFFICIALS (as amended by Federal Laws dated 07/09/1999 N 154-FZ, dated 06/29/2004 N 58-FZ)
Chapter 6. INTERNAL AFFAIRS BODIES. INVESTIGATIVE BODIES (as amended by Federal Laws dated June 30, 2003 N 86-FZ, dated December 28, 2010 N 404-FZ)

Section IV. GENERAL RULES FOR THE EXECUTION OF THE OBLIGATION TO PAY TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law No. 243-FZ of July 3, 2016)

Chapter 7. OBJECTS OF TAXATION
Chapter 8. EXECUTION OF THE OBLIGATION TO PAY TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law dated July 3, 2016 N 243-FZ)
Chapter 10. REQUIREMENT FOR PAYMENT OF TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law No. 243-FZ of July 3, 2016)
Chapter 11. WAYS OF ENSURING FULFILLMENT OF OBLIGATIONS FOR PAYMENT OF TAXES, FEES, INSURANCE PREMIUMS (as amended by Federal Law dated July 3, 2016 N 243-FZ)
Chapter 12. CREDIT AND REFUND OF OVER PAID OR OVER COLLECTED AMOUNTS

Section V. TAX DECLARATION AND TAX CONTROL (as amended by Federal Law No. 154-FZ of July 9, 1999)

Chapter 13. TAX DECLARATION (as amended by Federal Law dated 07/09/1999 N 154-FZ)
Chapter 14. TAX CONTROL

Chapter 14.1. INTERDEPENDENT PERSONS. PROCEDURE FOR DETERMINING THE SHARE OF ONE ORGANIZATION IN ANOTHER ORGANIZATION OR AN INDIVIDUAL IN AN ORGANIZATION
Chapter 14.2. GENERAL PROVISIONS ABOUT PRICES AND TAXATION. INFORMATION USED IN COMPARING THE TERMS OF TRANSACTIONS BETWEEN RELATED ENTITIES WITH THE TERMS OF TRANSACTIONS BETWEEN PERSONS THAT ARE NOT INTERDEPENDENTS
Chapter 14.3. METHODS USED IN DETERMINING FOR TAXATION PURPOSES INCOME (PROFIT, REVENUE) IN TRANSACTIONS IN WHICH THE PARTIES ARE RELATED ENTITIES
Chapter 14.4. CONTROLLED TRANSACTIONS. PREPARATION AND PRESENTATION OF DOCUMENTATION FOR TAX CONTROL PURPOSES. NOTICE OF CONTROLLED TRANSACTIONS
Chapter 14.4-1. PRESENTATION OF DOCUMENTATION ON INTERNATIONAL GROUPS OF COMPANIES (introduced by Federal Law dated November 27, 2017 N 340-FZ)
Chapter 14.5. TAX CONTROL IN CONNECTION WITH TRANSACTIONS BETWEEN RELATED PERSONS
Chapter 14.6. PRICING AGREEMENT FOR TAX PURPOSES

Section V.2. TAX CONTROL IN THE FORM OF TAX MONITORING (introduced by Federal Law dated November 4, 2014 N 348-FZ)

Chapter 14.7. TAX MONITORING. REGULATIONS FOR INFORMATION INTERACTION
Chapter 14.8. PROCEDURE FOR CONDUCTING TAX MONITORING. MOTIVATED OPINION OF THE TAX AUTHORITY

Section VI. TAX OFFENSE AND RESPONSIBILITY FOR THEIR COMMITMENT

Chapter 15. GENERAL PROVISIONS ON LIABILITY FOR TAX OFFENSE COMMITMENT
Chapter 16. TYPES OF TAX OFFENSE AND RESPONSIBILITY FOR THEIR COMMITMENT
Chapter 17. COSTS ASSOCIATED WITH TAX CONTROL
Chapter 18. TYPES OF VIOLATIONS OF THE BANK’S OBLIGATIONS PROVIDED BY THE LEGISLATION ON TAXES AND FEES AND RESPONSIBILITY FOR THEIR COMPLETION

Section VII. APPEALING ACTS OF TAX AUTHORITIES AND ACTIONS OR INACTIONS OF THEIR OFFICIALS

Chapter 19. PROCEDURE FOR APPEALING ACTS OF TAX AUTHORITIES AND ACTIONS OR INACTIONS OF THEIR OFFICIALS
Chapter 20. CONSIDERATION OF A COMPLAINT AND MAKING A DECISION ON IT

SECTION VII.1. IMPLEMENTATION OF INTERNATIONAL TREATIES OF THE RUSSIAN FEDERATION ON TAXATION ISSUES AND MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX AFFAIRS (introduced by Federal Law of November 27, 2017 N 340-FZ)

Chapter 20.1. AUTOMATIC EXCHANGE OF FINANCIAL INFORMATION
Chapter 20.2. INTERNATIONAL AUTOMATIC EXCHANGE OF COUNTRY REPORTS IN ACCORDANCE WITH INTERNATIONAL TREATIES OF THE RUSSIAN FEDERATION (introduced by Federal Law of November 27, 2017 N 340-FZ)
Chapter 20.3. MUTUAL AGREEMENT PROCEDURE IN ACCORDANCE WITH THE INTERNATIONAL TREATY OF THE RUSSIAN FEDERATION ON TAXATION ISSUES (introduced by Federal Law of September 29, 2019 N 325-FZ)

PART TWO

Section VIII. FEDERAL TAXES
- Chapter 21. VALUE ADDED TAX
- Chapter 22. EXCISE TAXES
- Chapter 23. INDIVIDUALS INCOME TAX
- Chapter 24. UNIFORM SOCIAL TAX (ARTICLES 234 - 245) Lost force on January 1, 2010. - Federal Law of July 24, 2009 N 213-FZ.
- Chapter 25. INCOME TAX OF ORGANIZATIONS (introduced by Federal Law dated 06.08.2001 N 110-FZ)
- Chapter 25.1. FEES FOR THE USE OF WILDLIFE OBJECTS AND FOR THE USE OF OBJECTS OF AQUATIC BIOLOGICAL RESOURCES (introduced by Federal Law of November 11, 2003 N 148-FZ)
- Chapter 25.2. WATER TAX (introduced by Federal Law dated July 28, 2004 N 83-FZ)
- Chapter 25.3. STATE DUTIES (introduced by Federal Law dated November 2, 2004 N 127-FZ)
- Chapter 25.4. TAX ON ADDITIONAL INCOME FROM PRODUCTION OF HYDROCARBONS RAW MATERIALS (introduced by Federal Law dated July 19, 2018 N 199-FZ)
- Chapter 26. TAX ON MINERAL EXTRACTION (introduced by Federal Law of 08.08.2001 N 126-FZ)
Section VIII.1. SPECIAL TAX REGIMES (introduced by Federal Law of December 29, 2001 N 187-FZ)
- Chapter 26.1. TAX SYSTEM FOR AGRICULTURAL PRODUCERS (UNIFORM AGRICULTURAL TAX) (as amended by Federal Law No. 147-FZ of November 11, 2003)
- Chapter 26.2. SIMPLIFIED TAX SYSTEM (introduced by Federal Law No. 104-FZ of July 24, 2002)
- Chapter 26.3. TAX SYSTEM IN THE FORM OF A SINGLE TAX ON IMPLIED INCOME FOR SPECIFIC TYPES OF ACTIVITY (introduced by Federal Law No. 104-FZ of July 24, 2002)
- Chapter 26.4. TAX SYSTEM WHEN IMPLEMENTING PRODUCTION SHARING AGREEMENTS (introduced by Federal Law No. 65-FZ of 06.06.2003)
- Chapter 26.5. PATENT TAX SYSTEM (introduced by Federal Law dated June 25, 2012 N 94-FZ)
Section IX. REGIONAL TAXES AND FEES (introduced by Federal Law of November 27, 2001 N 148-FZ)
- Chapter 27. SALES TAX (ARTICLES 347 - 355) Lost force. - Federal Law of November 27, 2001 N 148-FZ.
- Chapter 28. TRANSPORT TAX (introduced by Federal Law of July 24, 2002 N 110-FZ)
- Chapter 29. TAX ON GAMING BUSINESS (introduced by Federal Law of December 27, 2002 N 182-FZ)
- Chapter 30. PROPERTY TAX OF ORGANIZATIONS (introduced by Federal Law of November 11, 2003 N 139-FZ)
Section X. LOCAL TAXES AND FEES (as amended by Federal Law dated November 29, 2014 N 382-FZ) (introduced by Federal Law dated November 29, 2004 N 141-FZ)
- Chapter 31. LAND TAX
- Chapter 32. PROPERTY TAX OF INDIVIDUALS (introduced by Federal Law dated October 4, 2014 N 284-FZ)
- Chapter 33. TRADE FEE (introduced by Federal Law dated November 29, 2014 N 382-FZ)
Section XI. INSURANCE PREMIUMS IN THE RUSSIAN FEDERATION (introduced by Federal Law dated July 3, 2016 N 243-FZ)
- Chapter 34. INSURANCE PREMIUMS (introduced by Federal Law dated July 3, 2016 N 243-FZ)

Article 146 of the Tax Code of the Russian Federation. Object of taxation

1. The following transactions are recognized as the object of taxation:

1) sales of goods (works, services) on the territory of the Russian Federation, including sales collateral items and transfer of goods (results of work performed, provision of services) under an agreement to provide compensation or innovations, as well as transfer of property rights.

For the purposes of this chapter, the transfer of ownership of goods, results of work performed, and the provision of services free of charge is recognized as the sale of goods (work, services);

4) importation of goods into the territory of the Russian Federation and other territories under its jurisdiction.

2. For the purposes of this chapter, the following are not recognized as objects of taxation:

2) transfer free of charge of residential buildings, kindergartens, clubs, sanatoriums and other objects socio-cultural And housing and communal services destination, roads, electrical networks, substations, gas networks, water intake structures and other similar objects to state authorities and local governments (or by decision of these authorities, specialized organizations that use or operate these objects for their intended purpose), as well as transfer to gratuitous delivery of socio-cultural objects to the treasury of a republic within the Russian Federation, the treasury of a region, region, federal city, autonomous region, autonomous district, to the municipal treasury of the corresponding urban, rural settlement or other municipal entity;

6) operations for the sale of land plots (shares in them);

7) transfer of the organization’s property rights to its legal successor(s);

8) transfer of funds or real estate for the formation or replenishment of the target capital of a non-profit organization in the manner established by the Federal by law

8.1) transfer of real estate in the event of dissolution of the endowment capital of a non-profit organization, cancellation of a donation, or in another case, if the return of such property transferred to replenish the endowment capital of a non-profit organization is provided for by the donation agreement and (or) the Federal by law dated December 30, 2006 N 275-FZ "On the procedure for the formation and use of endowment capital of non-profit organizations." The norm of this subparagraph is applied when such property is transferred by a non-profit organization - the owner of the endowment capital to the donor, his heirs (successors) or another non-profit organization in accordance with the Federal by law dated December 30, 2006 N 275-FZ “On the procedure for the formation and use of endowment capital of non-profit organizations”;

12) operations for the sale (transfer) on the territory of the Russian Federation of state or municipal property that is not assigned to state enterprises and institutions and constitutes the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as municipal property not assigned to municipal enterprises and institutions and constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, purchased in the manner established by the Federal by law dated July 22, 2008 N 159-FZ “On the specifics of the alienation of real estate that is state or municipal property and leased by small and medium-sized businesses, and on amendments to certain legislative acts of the Russian Federation”;

13) related to the implementation of activities provided for by the Federal by law"On the preparation and holding in the Russian Federation of the 2018 FIFA World Cup, the 2017 FIFA Confederations Cup, the 2020 UEFA European Football Championship and amendments to certain legislative acts of the Russian Federation", operations for the sale of goods (works, services) and property rights of the Organizing Committee "Russia-2018", subsidiaries of the Organizing Committee "Russia-2018", the Russian Football Union, producers of FIFA media information and suppliers of goods (works, services) FIFA, defined by the specified Federal Law and being Russian organizations, as well as associated with implementation of activities for the preparation and holding of the 2020 UEFA European Football Championship in the Russian Federation, provided for by the specified Federal by law, operations for the sale of goods (work, services) and property rights by the Russian Football Union and the local organizational structure, UEFA commercial partners, suppliers of UEFA goods (work, services) and UEFA broadcasters, defined by the said Federal Law, in the period up to December 31, 2020 inclusive .

14) implementation by an autonomous non-profit organization created in accordance with the Federal by law"On the protection of the interests of individuals who have deposits in banks and separate structural divisions of banks registered and (or) operating in the territory of the Republic of Crimea and in the territory of the federal city of Sevastopol", property and property rights and the provision by this organization of services to represent the interests of depositors;

17) transfer free of charge:

18) transfer, free of charge, to state authorities and (or) local governments of the results of work on the creation and (or) reconstruction of heat supply facilities, centralized hot water supply systems, cold water supply and (or) wastewater disposal, individual objects of such systems located in the state or municipal property and transferred for temporary possession and use to the taxpayer in accordance with lease agreements, as well as heating supply facilities, centralized hot water supply systems, cold water supply and (or) sanitation, individual objects of such systems created by the taxpayer during the validity period of lease agreements, in the case conclusion by this taxpayer in relation to these objects of concession agreements in accordance with part 1 of article 51 Federal Law of July 21, 2005 N 115-FZ “On Concession Agreements”;

19) transfer of real estate objects free of charge to the state treasury of the Russian Federation;

20) transfer of property free of charge into the ownership of the Russian Federation for the purposes of organizing and (or) conducting scientific research in Antarctica.