Who is the VAT tax agent? What entries does a VAT tax agent make? A VAT tax agent for a foreign company
For unlawful non-withholding and (or) non-transfer of tax amounts by a tax agent, a tax sanction is provided - a fine in the amount of 20% of the tax amount. To avoid tax penalties, check your counterparties and transactions with them.
Below is a diagram that will help you figure out who is considered a tax agent for VAT.
Article 161 of the Tax Code of the Russian Federation describes situations when a tax agent calculates and pays VAT to the budget on behalf of a payer. Let's consider the two most popular situations.
Situation 1. Sales of goods, works, and services by foreign organizations in Russia
If a foreign organization has a representative office in Russia, then such an organization will calculate the VAT itself, pay it to the budget and issue you an invoice. If there is no representative office in the Russian Federation, then the buyer of goods, works, services will have to calculate VAT and withhold it from the amount paid to the foreign seller. Therefore, when concluding an agreement with a foreign organization, it is necessary to check the presence of a representative office or branch of the foreign organization in Russia.To confirm that you do not have the duties of a tax agent, it is best to request a copy of the tax registration certificate (indicating the Taxpayer Identification Number and Taxpayer Identification Number) of the representative office of a foreign organization in Russia.
At the same time, if the buyer enters into a contract with the head office of a foreign company (a branch registered in the Russian Federation does not take part in the transaction), then the buyer must fulfill the duties of a tax agent, despite the presence of registration of a representative office in the Russian Federation (letter from the Ministry of Finance of Russia dated November 12, 2014 No. 03-07-08/57178).
If a foreign organization sells goods, works, or services that are not recognized as subject to VAT in Russia, then the buyer does not need to calculate and withhold VAT.
The tax to be withheld from payments to a foreign organization is calculated using the formula:
Example. A foreign organization provides information services to a Russian organization. In accordance with Art. 148 of the Tax Code of the Russian Federation, the Russian Federation is recognized as the territory for the provision of services. Foreign partners did not provide a certificate of registration with the tax authority in the Russian Federation. The cost of the service is 100,000 rubles. A Russian organization is required to withhold VAT when paying for services. The VAT amount will be 100,000*18/118 = 15,254.24 rubles. The contractor under the contract will receive RUB 84,745.76 “in hand.”
Often, foreign counterparties indicate in contracts that they wish to receive a certain fixed amount of money for their goods, work, services, and the buyer must accrue all taxes payable in Russia in excess of the specified amount and pay at his own expense.
Such wording in agreements does not affect the manner in which the tax agent performs its functions and does not prevent the receipt of a deduction for VAT paid to the budget under such an agreement.
In a number of cases, Russian organizations are required to withhold from payments to foreign companies not only VAT, but also income tax (Article 309 of the Tax Code of the Russian Federation). If an organization is simultaneously a tax agent for both VAT and income tax, then taxes are calculated as follows: first, VAT should be calculated and withheld, and then income tax, excluding the VAT amount from the tax base.
For example, a Russian company pays a foreign company the cost of property rights to use the developed website 100,000 euros. VAT = 100,000 *18/118 = 15,254.24 euros. Income tax = (100,000 -15,254.24) * 20% = 16,949.15 euros. Tax amounts are recalculated into rubles at the exchange rate on the date of transfer to the budget (Article 45 of the Tax Code of the Russian Federation). Please note that the tax rate on the income of a foreign organization depends on the international agreement on the avoidance of double taxation between the Russian Federation and the country of which the foreign counterparty is a resident. The agreement may provide for the exemption of income of a foreign organization from taxation on the territory of the Russian Federation or taxation at a reduced tax rate. If there is no such agreement between states, then a rate of 20% should be applied.
According to Article 312 of the Tax Code of the Russian Federation, in order to apply exemption from taxation of income of a foreign company on the territory of the Russian Federation or to apply reduced tax rates, documentary evidence is required:
Residence in a country with which Russia has concluded an international agreement on the avoidance of double taxation;
The actual right to dispose of income received under the agreement (in particular, confirmation that the counterparty is not an intermediary).
Supporting documents must be provided by the foreign organization to the tax agent before the date of payment of income.
Situation 2. Provision of federal, municipal property, property of constituent entities of the Russian Federation by state authorities and management bodies, local self-government bodies
When concluding a lease agreement for state or municipal property, you must pay attention to who is the lessor under the agreement. The following options for concluding lease agreements are possible:1) Lessor - city administration, state property management committee, municipality or other similar body (bilateral agreement). In this case, the tenant is recognized as a tax agent.
2) Lessor - city administration, state property management committee, municipality or other similar body, balance holder - unitary institution (tripartite agreement). In this case, the tenant is also recognized as a tax agent.
3) Lessor - a municipal or federal unitary institution (school, hospital, bus station, etc.). Such institutions are independent taxpayers. The tenant is not a tax agent.
4) The lessor is a government institution. The services of such institutions are not subject to VAT. The tenant is not a tax agent.
If the tenant is a tax agent, then he is obliged to calculate VAT at the time of payment of rent. The tax amount is determined as follows:
Deadlines for paying VAT to the budget
When purchasing works or services from a foreign partner, tax payment to the budget is made by tax agents simultaneously with the payment of funds to the foreign partner. Banks will not accept a payment to a foreigner without a payment order to pay VAT to the budget (Article 174 of the Tax Code of the Russian Federation). When purchasing goods from foreign organizations, the tax must be transferred to the budget in equal parts no later than every 25th day within three months following the tax period in which the tax was calculated.The same deadlines are established for the transfer to the budget of VAT accrued in relation to rent for the use of state / municipal property.
In practice, it is more convenient for a tax agent to transfer VAT to the budget when making any purchase at the time of payment under an agreement with a foreigner or a government agency / municipality. This will allow you to avoid technical errors, and therefore avoid the accrual of penalties and fines for late transfer of tax to the budget. In addition, the payment period affects the period for deducting the amount of VAT paid to the budget by the tax agent.
Invoices
The tax agent issues an invoice no later than 5 calendar days after payment for goods, works, services (the sale of which is recognized as subject to VAT on the territory of the Russian Federation) in two copies. One copy is registered in the sales book, the second - at the moment the right to deduction arises in the purchase book.In lines 2, 2a, 2b of the invoice, the tax agent indicates the details of the seller/lessor. In line 2b (TIN and KPP) of the invoice, dashes are added if the seller is a foreign organization. In line 5 of the invoice, if works or services are purchased from a foreign organization, the tax agent must indicate the number and date of the payment order that transferred VAT to the budget.
Deductions
Persons who are recognized as tax agents in the situations described above are required to submit VAT returns to the tax authorities, regardless of whether they themselves are VAT taxpayers or not. At the same time, tax agents who are VAT payers can accept the paid VAT as a deduction. Agents who are not VAT payers cannot claim VAT for deduction, but have the right to include the amount of VAT paid in the cost of purchased goods, works, and services.Mandatory conditions for accepting VAT for deduction:
1) there are payment documents confirming the payment of VAT to the budget;
2) goods (work, services) for their use in activities subject to VAT;
3) there is an invoice issued by you (the tax agent);
4) purchased goods (works, services) are accepted for accounting. VAT can be deducted in the same period in which VAT is paid to the budget, subject to other mandatory conditions.
Example: The organization rents premises from the municipality to accommodate an office for 300,000 rubles. per month. The VAT amount is 300,000 * 18/118 = 45,762.71 rubles. The share of transactions subject to VAT is 5% of total revenue (clause 4 of Article 170 of the Tax Code of the Russian Federation). On March 30, the organization transfers 254,237.29 rubles to the budget. towards the rent for March and RUB 45,762.71. towards payment of VAT. The corresponding rental payments have been accrued in the accounting records. When generating a declaration for the 1st quarter, the organization will reflect: - the accrual of tax payable as a tax agent in the amount of 45,762.71 rubles, - the amount of VAT deductible in the amount of 2,288.14 rubles. (45762.71 *5%). The difference between the VAT paid to the budget and the VAT accepted for deduction (RUB 43,474.57) will be taken into account by the organization when calculating income tax as part of the costs of renting premises.
Thus, by concluding an agreement with a foreign organization or government authority (municipality), the organization (entrepreneur) assumes additional functions and responsibilities. In order to plan tax consequences, before signing an agreement with an “unusual” counterparty, you should first research its status, assess how its status will affect the calculation of taxes, and stock up on the necessary documents and confirmations.
How to correctly reflect in accounting and tax accounting the operation of calculating and deducting VAT paid as a tax agent for services provided by a non-resident of the Russian Federation on the territory of the Russian Federation. What amount should be taken into account in the expenses for a work completion certificate received from a non-resident: including VAT, or excluding VAT. How to correctly reflect the VAT deduction paid and accrued as a tax agent in the VAT tax return? What transaction codes should be used to reflect these VAT amounts in the purchase book and sales book?
On the issue of reflection in accounting
When purchasing works from a foreign organization, you must have the following entries in your accounting:
Debit 20, 44... Credit 60 – costs for services rendered are reflected (based on the acceptance certificate);
Debit 19 Credit 60 – VAT is taken into account on the cost of services, subject to withholding when paying income to a foreign organization;
Debit 60 Credit 68 subaccount “Calculations for VAT” – VAT is withheld from the amount payable to a foreign organization that is not registered for tax purposes in Russia;
Debit 60 Credit 52 – money was transferred to a foreign organization (minus withheld VAT);
Debit 68 subaccount “Calculations for VAT” Credit 51 - the amount of withheld VAT was transferred to the federal budget;
Debit 68 subaccount “Calculations for VAT” Credit 19 - VAT withheld from income payable to a foreign organization and transferred to the budget is accepted for deduction.
On the issue of taxation
The basis for calculating VAT is the amount of revenue (income) of the counterparty. The Russian organization determines the tax base taking into account VAT.
Determine the amount of VAT payable to the budget using the estimated rate.
If the cost of work in the contract is established without VAT, the tax agent must transfer the tax to the budget at his own expense. In this case, determine the tax amount in the following order. First, increase the tax base (the value specified in the agreement) by the amount of VAT at a direct rate - 18 or 10 percent. And then, based on the increased tax base, determine the amount of VAT at the calculated rate: 18/118 or 10/110 (letter of the Ministry of Finance of Russia dated September 8, 2011 No. 03-07-08/276). The tax base, including VAT, is calculated as tax payable to the budget on the day of payment for the purchased work. That is, either at the time of their advance payment (in full or in part), or at the time of final settlement with the counterparty.
For work accepted for accounting, the tax agent can take advantage of the VAT deduction in the tax period in which the amount of withheld tax was actually paid to the budget, i.e. this is the quarter in which the tax agent transferred payment to the foreign counterparty.
When calculating income tax, you must take into account the work without taking into account the VAT that you paid as a tax agent. If the executor, when drawing up the act, allocated the amount of VAT (analogous to the Russian one), then when calculating income tax in expenses, you must take into account the amount taking into account foreign VAT.
You must reflect the accrued VAT in section 2 of the VAT return, line 060, as well as in section 1, line 040.
VAT previously accrued when paying for work, which the organization has the right to deduct, should be reflected in the VAT return, in section 3 on line 180.
In the purchase book and in the sales book, indicate transaction code 06.
1. How can a tax agent withhold and transfer VAT to the budget?
The tax base
The basis for calculating VAT is the amount of revenue (income) of the counterparty (taxpayer) from transactions listed in the articles of the Tax Code of the Russian Federation.
A Russian organization determines the tax base including VAT if:
- purchases goods, works, services (including electronic services) from foreign organizations that are not tax registered in Russia (clause 1 of Article 161, clause 9 of Article 174.2 of the Tax Code of the Russian Federation);*
- leases state (municipal) property directly from executive authorities and management (paragraph 1, paragraph 3, article 161 of the Tax Code of the Russian Federation);
- buys (receives) state or municipal property that is not assigned to state (municipal) organizations (paragraph 2, paragraph 3, article 161 of the Tax Code of the Russian Federation).
Tax rate
The tax rate depends on the type of goods (work, services) that the tax agent organization buys or sells on the territory of Russia (clause 5 of Article 174.2 of the Tax Code of the Russian Federation).
Determine the amount of VAT payable to the budget at the calculated rate:
- if the tax base includes VAT;
- upon receipt of an advance (partial payment) for upcoming deliveries of goods (work, services), for the sale of which the tax base is determined without taking into account VAT.
If the cost of goods (work, services) in the contract is established without VAT, the tax agent must transfer the tax to the budget at his own expense. In this case, determine the tax amount in the following order. First, increase the tax base (the value specified in the agreement) by the amount of VAT at a direct rate - 18 or 10 percent. And then, based on the increased tax base, determine the amount of VAT at the calculated rate: 18/118 or 10/110 (letter of the Ministry of Finance of Russia dated September 8, 2011 No. 03-07-08/276).
If the tax base does not include VAT, the amount of tax that needs to be transferred to the budget is determined at a direct rate - 18 or 10 percent. This rule applies to two categories of tax agents:
– on Russian intermediaries selling goods (work, services) of foreign principals or principals in Russia (clause 5 of Article 161 of the Tax Code of the Russian Federation);
– on organizations (entrepreneurs) that sell confiscated and ownerless property (clause 4 of article 161 of the Tax Code of the Russian Federation).
When selling goods (work, services, property), such tax agents are required to present the calculated VAT amounts to buyers (clause 1 of Article 168 of the Tax Code of the Russian Federation).*
Withhold the amount of VAT calculated at the Bank of Russia exchange rate on the date of transfer of money.
In accounting, input VAT on goods (work, services) purchased from a foreign organization should be reflected in account 19 “Value added tax on acquired assets” at the Bank of Russia exchange rate valid on the date of registration of these goods, works, services (clause , PBU 3/2006, Instructions for the chart of accounts).*
However, the tax base for calculating the amount of VAT that the tax agent organization must withhold from the counterparty in this case must be determined at the Bank of Russia exchange rate on the date of transfer of money (clause 3 of Article 153 of the Tax Code of the Russian Federation). The tax agent can deduct the same amount of tax (clause 3 of Article 171 of the Tax Code of the Russian Federation). Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated January 21, 2015 No. 03-07-08/1467.
This means that if on the date of transfer of money to a foreign organization the foreign currency exchange rate changes, the amount of VAT recorded in account 19 “Value added tax on acquired assets” must be adjusted.
An example of VAT calculation when purchasing services from a foreign organization that is not registered with tax authorities in Russia. Payment for services is transferred after the acceptance certificate for the services provided is signed. The foreign currency exchange rate on the date of payment for services has increased. The organization applies a general taxation system*
Alpha LLC (customer) entered into an agreement with the Ukrainian organization Lawyers of Ukraine LLC (contractor) for the provision of legal services that are necessary for production activities subject to VAT.
The cost of services under the contract is $11,800. A Ukrainian organization is not registered for tax purposes in Russia. The place of sale of legal services is Russia (subclause 4, clause 1, article 148 of the Tax Code of the Russian Federation
Services were provided between January 26 and 28. On January 28, the parties signed an acceptance certificate for the services provided. On January 31, Alpha’s accountant transferred payment for services to the Ukrainian organization.
The amount of VAT that Alpha must withhold from the income of the Ukrainian organization as a tax agent is USD 1,800 (USD 11,800 ? 18/118).
On the date of registration of services (i.e. January 28), the US dollar exchange rate (conditionally) was 30.30 rubles. for a dollar. On this day, the accountant made the following entries:
Debit 26 Credit 60
– 303,000 rub. ((USD 11,800 – USD 1,800) ? 30.30 rubles/USD) – expenses for legal services provided are reflected (based on the acceptance certificate);
Debit 19 Credit 60
– 54,540 rub. (1800 USD ? 30.30 rubles/USD) – VAT is taken into account on the cost of services, which is subject to withholding when paying income to a Ukrainian organization.*
On the date of payment for services (i.e. January 31), the US dollar exchange rate (conditionally) was 30.40 rubles. for a dollar. On this day, Alpha listed:
- payment for services of a Ukrainian organization – 10,000 USD (11,800 USD – 1800 USD);
- the amount of VAT withheld to the federal budget is RUB 54,720. (30.40 RUB/USD ? 1800 USD).
Since the official US dollar exchange rate increased on the date of payment for services, the accountant adjusted the amount reflected in account 19.
– 54,720 rub. (1800 USD ? 30.40 rubles/USD) – VAT is withheld from the amount payable to a Ukrainian organization that is not registered for tax purposes in Russia;
Debit 60 Credit 52
– 304,000 rub. ((11,800 USD – 1,800 USD) ? 30.40 rubles/USD) – money was transferred to a Ukrainian organization (minus withheld VAT);
Debit 91-2 Credit 60
– 1000 rub. (10,000 USD ? (30.40 rubles/USD – 30.30 rubles/USD)) – a negative exchange rate difference is reflected;
– 54,720 rub. – the amount of withheld VAT is transferred to the federal budget;
Debit 19 Credit 60
– 180 rub. (1800 USD ? (30.40 rub./USD – 30.30 rub./USD)) – the amount of VAT subject to deduction has been adjusted;
– 54,720 rub. – VAT withheld from income payable to a Ukrainian organization and transferred to the budget is accepted for deduction.*
2.How can a tax agent deduct withheld VAT?
Right to deduction
Tax agents applying the general taxation system can deduct the amount of VAT actually transferred to the budget (clause 3 of Article 171 of the Tax Code of the Russian Federation). However, tax deductions are not provided to Russian tax agents who:*
- exempt from VAT under the Tax Code of the Russian Federation;
- carry out transactions that are not subject to taxation or are exempt from taxation (clause 2 of article 146 and article 149 of the Tax Code of the Russian Federation);
- sell confiscated property and valuables listed in paragraph 4 of Article 161 of the Tax Code of the Russian Federation;
- sell as intermediaries (with participation in settlements) goods (work, services, property rights) of foreign organizations that are not tax registered in Russia (clause 5 of Article 161 of the Tax Code of the Russian Federation).
Situation: in what period does the tax agent have the right to deduct VAT on purchased goods (work, services). Goods (work, services) purchased for use in transactions subject to VAT
The right to deduction arises in the tax period in which the VAT amount was transferred to the budget.*
An organization that is a tax agent has the right to a tax deduction if it:
- purchases goods (work, services) from foreign organizations that are not tax registered in Russia (clause 1 of Article 161 of the Tax Code of the Russian Federation). At the same time, the organization itself must be registered with the tax inspectorate (clause 2 of Article 161 of the Tax Code of the Russian Federation), and the place of sale of goods (work, services) must be the territory of Russia (clause 1 of Article 161, Art., Tax Code of the Russian Federation). The deduction can be used even if the cost of purchased goods (work, services) does not reduce taxable profit (letter of the Ministry of Finance of Russia dated March 24, 2010 No. 03-07-08/77);
- leases state or municipal property directly from state authorities and local self-government (paragraph 1, paragraph 3, article 161 of the Tax Code of the Russian Federation);
- buys (receives) state or municipal property that is not assigned to state (municipal) organizations (paragraph 2, paragraph 3, article 161 of the Tax Code of the Russian Federation).
If a tax agent purchases goods (work, services) to carry out transactions subject to VAT at a rate of 0 percent, he is subject to the procedure for applying tax deductions provided for exporting taxpayers.
Preparation of invoices
You only need to fill out invoices for transactions that are subject to VAT. If an organization is a tax agent for tax-exempt transactions, it is not required to issue invoices for such transactions. This is stated in the letter of the Ministry of Finance of Russia dated March 19, 2014 No. 03-07-09/11822.
The general requirements for the preparation of invoices are established by paragraphs 5.1 and Article 169 of the Tax Code of the Russian Federation (paragraph 2, clause 3, article 168 of the Tax Code of the Russian Federation). Features of filling out some invoice indicators by tax agents are indicated in the appendices and to .*
An invoice can be drawn up on paper or electronically (paragraph 2, paragraph 1, article 169 of the Tax Code of the Russian Federation). Electronic formats of invoices were approved by orders of the Federal Tax Service of Russia dated March 24, 2016 No. MMV-7-15/155 and dated March 4, 2015 No. MMV-7-6/93. Both formats are valid until July 1, 2017. That is, during the period from May 7, 2016 to June 30, 2017, tax agents can use any of these formats.
There are no special deadlines for issuing invoices for tax agents. Therefore, follow the general rule: draw up invoices within five calendar days from the date of the transaction in which you acted as a tax agent (letter of the Federal Tax Service of Russia dated August 12, 2009 No. ШС-22-3/634).
An invoice issued by a tax agent should be registered in part 1 of the invoice journal and in the sales book as of the date of preparation (Appendix 3, clauses 15-16 of Section II of Appendix 5 to the Decree of the Government of the Russian Federation of December 26, 2011 No. 1137 ). Such documents are not registered in Part 2 of the invoice journal (clause 9 of Appendix 3 to Decree of the Government of the Russian Federation of December 26, 2011 No. 1137). In the purchase book, an invoice drawn up by a tax agent is registered as the right to a tax deduction arises (clause 23 of section II of Appendix 4 to Decree of the Government of the Russian Federation of December 26, 2011 No. 1137).
In line 2 “Seller”, tax agents purchasing goods (work, services) from foreign organizations that are not tax registered in Russia (clause 2 of article 161 of the Tax Code of the Russian Federation, clause 3 of article 161 of the Tax Code of the Russian Federation), provide the full or abbreviated the name of the seller or lessor (specified in the agreement with the tax agent) for whom they fulfill tax payment obligations.
Line 2a “Address” must indicate the address (in accordance with the constituent documents) of the seller or lessor (specified in the agreement with the tax agent) for whom the tax agents fulfill the obligation to pay tax.
In line 2b “TIN/KPP of the seller” the following must be entered:
- a dash – if the invoice is filled out by a tax agent purchasing goods (work, services) from a foreign organization that is not tax registered in Russia (clause 2 of Article 161 of the Tax Code of the Russian Federation);
- INN and KPP of the seller or lessor (specified in the agreement with the tax agent), for whom the tax agent fulfills the obligation to pay tax, in all other cases (clause 3 of Article 161 of the Tax Code of the Russian Federation).
When drawing up an invoice for work performed (services rendered) in lines 3 “Consignor and his address” and 4 “Consignee and his address”, tax agents purchasing work (services) from foreign organizations that are not tax registered in Russia (p 2, Article 161 of the Tax Code of the Russian Federation *), as well as tax agents leasing state or municipal property directly from state authorities and local self-government or acquiring (receiving) state or municipal property on the territory of Russia that is not assigned to state (municipal) organizations ( Clause 3 of Article 161 of the Tax Code of the Russian Federation), put dashes*.
If goods are purchased from foreign organizations that are not tax registered in Russia, then in the line “Consignor and his address” you must indicate the name and postal address of the consignor, and in the line “Consignee and his address” - the name and postal address of the consignee.
The procedure for filling out line 5 “To the payment and settlement document” has some peculiarities.
When purchasing (receiving) or renting state (municipal) property, in this line you must indicate the number and date of the payment document confirming payment for the property or transfer of rent.
When purchasing works (services) from foreign organizations that are not registered in Russia for tax purposes, in line 5, indicate the number and date of the payment document confirming the transfer of the withheld VAT amount to the budget*.
When purchasing goods from foreign organizations that are not tax registered in Russia, in line 5, indicate the number and date of the payment document confirming payment for the purchased goods.
If the payment was made in non-cash form, indicate a dash in line 5.
In line 7 “Currency: name, code”, indicate the name of the currency according to the All-Russian Classifier of Currencies and its digital code (subparagraph “m”, paragraph 1 of Appendix 1 to Decree of the Government of the Russian Federation of December 26, 2011 No. 1137). If in the contract the price of a product (work, service) is indicated in foreign currency and its payment is also made in foreign currency, the tax agent can draw up an invoice in foreign currency (Clause 7 of Article 169 of the Tax Code of the Russian Federation).
When filling out the invoice columns, tax agents purchasing goods (work, services) from foreign organizations that are not tax registered in Russia (clause 2 of Article 161 of the Tax Code of the Russian Federation *), as well as tax agents leasing state or municipal property directly from state authorities and local self-government or those purchasing (receiving) state or municipal property on the territory of Russia that is not assigned to state (municipal) organizations (clause 3 of Article 161 of the Tax Code of the Russian Federation), must adhere to the following rules*.
When full payment is made for goods (works, services), the invoice columns should be filled out in the manner prescribed by paragraph 5
In case of partial payment, dashes are placed in columns 2–4, and columns 10–11 are not filled in.
For both full and partial payment (including non-cash payments), please indicate:*
- in column 1 - the name of the goods supplied, property rights (description of work, services);
- in column 7 - the estimated tax rate (10/110 or 18/118) or the entry “Without VAT”;
- in column 9 - the sum of the indicator in column 5 and the indicator calculated as the product of the indicator in column 5 and the tax rate of 10 or 18 percent, divided by 100;
- in column 8 - the amount of tax calculated as the product of columns 9 and 7, in rubles and kopecks without rounding (letter of the Ministry of Finance of Russia dated April 1, 2014 No. 03-07-RZ/14417);
- in column 6 - the amount of excise tax, and if the product is not excisable, then indicate “Without excise duty”.
This procedure for filling out invoices is established in Appendix 1 to Decree of the Government of the Russian Federation dated December 26, 2011 No. 1137.
After filling out all the required details of the invoice drawn up on paper, it must be signed by the head and chief accountant of the tax agent organization (other persons authorized to do so by order of the head or by a power of attorney on behalf of the organization*). If the tax agent is an entrepreneur, he must personally sign the invoice and indicate in it the details of his registration certificate. This procedure is established by paragraph 6 of Article 169 of the Tax Code of the Russian Federation.
With regard to the preparation of previous forms of invoices, similar explanations were contained in the letter of the Federal Tax Service of Russia dated August 12, 2009 No. ШС-22-3/634.
When calculating tax, as well as when issuing an advance (partial payment*), including in non-monetary form, tax agents purchasing goods (work, services) from foreign organizations that are not tax registered in Russia (clause 2 of Article 161 Tax Code of the Russian Federation),* as well as tax agents leasing state or municipal property directly from state authorities and local self-government or acquiring (receiving) state or municipal property on the territory of Russia that is not assigned to state (municipal) organizations (clause 3 of Art. 161 of the Tax Code of the Russian Federation), draw up an invoice and register it in the sales book (clause 15 of section II of Appendix 5 to Decree of the Government of the Russian Federation of December 26, 2011 No. 1137). When presenting VAT for deduction in accordance with paragraph 3 of Article 171 of the Tax Code of the Russian Federation, previously issued invoices for advance payments (partial payment) are registered in the purchase book (clause 23 of section II of Appendix 4 to Decree of the Government of the Russian Federation of December 26, 2011 No. 1137 *).
An example of drawing up an invoice for the amount of an advance paid for the upcoming delivery of production equipment. A Russian organization (tax agent) purchases equipment from a foreign organization that is not tax registered in Russia*
Alpha LLC, on a 100% prepayment basis, purchases a milling machine from the Ukrainian company Motor Sich for use in production activities subject to VAT. The cost of equipment under the contract is 590,000 rubles. in view of VAT. Settlements under the agreement are carried out in rubles. A Ukrainian organization is not registered for tax purposes in Russia. The place of sale of the machine is Russia (). Therefore, Alpha must withhold VAT from the cost of the machine. The amount of VAT that Alpha must withhold from the income of a Ukrainian organization as a tax agent is RUB 90,000. (RUB 590,000 ? 18/118).
On June 21, by payment order No. 275, the Alpha accountant transferred the payment to the Ukrainian organization (minus VAT) and drew up an invoice marked “For a foreign person.” In line 5 of the compiled invoice, the Alpha accountant indicated the details of the payment document with which payment was transferred to the Ukrainian company (dated June 21, No. 275). On June 21, the invoice was recorded in the sales ledger.
VAT withheld from the income of the Ukrainian organization was transferred to the budget by payment order dated June 21 No. 276.
The equipment acceptance and transfer certificate was signed by the parties on July 5. On this day, the machine was accepted for accounting and Alpha acquired the right to deduct the withheld VAT. On July 5, Alpha's accountant registered the compiled invoice in the purchase book and presented the VAT amount for deduction.
Alpha's accountant reflects settlements with suppliers in the following sub-accounts opened to account 60 “Settlements with suppliers and contractors”:
- “Calculations for advances issued”;
- “Settlements for property (work, services).”
Debit 60 subaccount “Calculations for advances issued” Credit 68 subaccount “Calculations for VAT”
– 90,000 rub. – VAT is withheld from the amount of the advance paid to the Ukrainian organization;
Debit 60 subaccount “Settlements on advances issued” Credit 51
– 500,000 rub. – the advance payment of the Ukrainian organization is transferred (minus the withheld VAT);
Debit 68 subaccount “VAT calculations” Credit 51
– 90,000 rub. – transferred to the budget VAT withheld from the income of the Ukrainian organization.
Debit 08 Credit 60 subaccount “Payments for property (work, services)»
– 500,000 rub. – a milling machine was accepted for accounting as part of capital investments;
Debit 19 Credit 60 subaccount “Payments for property (work, services)”
– 90,000 rub. – reflects the “input” VAT on the cost of the machine;
Debit 60 subaccount “Settlements for property (work, services)” Credit 60 subaccount “Settlements for advances issued”
– 590,000 rub. – the advance paid to the Ukrainian organization is credited;
Debit 68 subaccount “VAT calculations” Credit 19
– 90,000 rub. – VAT withheld and transferred to the budget is accepted for deduction.
The same rule applies if a tax agent purchasing goods (work, services) from a foreign organization that is not tax registered in Russia refuses delivery before shipment and the seller returns the previously received advance payment (partial payment). In this case, previously issued invoices for advance payments (partial payment) are recorded in the purchase book after all adjustments related to the return are reflected in the accounting records. In this case, the invoice can be registered in the purchase book no later than one year from the date of the buyer’s refusal to supply. This is stated in paragraph 22 of Section II of Appendix 4 to the Decree of the Government of the Russian Federation of December 26, 2011 No. 1137. Similar clarifications are in the letter of the Ministry of Finance of Russia dated May 4, 2016 No. 03-07-08/25611.
Situation: how to draw up an invoice for a tax agent if he purchases goods (work, services) from a foreign organization that is not tax registered in Russia
Draw up an invoice in the manner established by paragraphs 5.1 and Article 169 of the Tax Code of the Russian Federation, taking into account some features.
When purchasing goods (work, services) from foreign organizations that are not tax registered in Russia, Russian organizations (tax agents) are required to draw up invoices in accordance with the requirements of paragraphs and Article 169 of the Tax Code of the Russian Federation (paragraph 2, paragraph 3, art. 168 of the Tax Code of the Russian Federation).
At the same time, some items of invoices prepared by tax agents are filled out in a special order. For example, in line 2b “TIN/KPP of the seller” you need to put a dash (clause 1 of Appendix 1 to the Decree of the Government of the Russian Federation of December 26, 2011 No. 1137). In relation to filling out previous forms of invoices, as additional information, the Ministry of Finance of Russia recommended making a note on them “For a foreign person” (letter dated May 11, 2007 No. 03-07-08/106).
An example of drawing up an invoice by a tax agent when purchasing services from a foreign organization. The foreign organization is not tax registered in Russia*
Alpha LLC (customer) entered into an agreement with the Ukrainian organization Lawyers of Ukraine (executor) for the provision of legal services that are necessary for production activities subject to VAT. The cost of services under the contract is USD 11,800, including VAT. A Ukrainian organization is not registered for tax purposes in Russia. The place of sale of legal services is Russia (subclause 4, clause 1, article 148 of the Tax Code of the Russian Federation). Consequently, their value is subject to VAT.
Services were provided between March 13 and March 15. On March 15, the parties signed an acceptance certificate for the services provided. On the same day, Alpha’s accountant transferred the payment to the Ukrainian organization and drew up an invoice marked “For a foreign person.” At the same time, when filling out line 2b “TIN/KPP of the seller” of the invoice, the Alpha accountant added a dash. The amount of VAT that Alpha must withhold from the income of the Ukrainian organization as a tax agent is USD 1,800 (USD 11,800 ? 18/118). VAT withheld from the income of the Ukrainian organization was transferred to the budget by payment order. The Alpha accountant indicated the details of this payment document in line 5 of the compiled invoice.
The following entries were made in Alpha's accounting.
Debit 26 Credit 60
– 330,000 rub. ((USD 11,800 – USD 1,800) ? 33 rubles/USD) – costs for legal services provided are reflected (based on the acceptance certificate);
Debit 19 Credit 60
– 59,400 rub. (1800 USD ? 33 rubles/USD) – VAT is taken into account on the cost of services, which is subject to withholding when paying income to a Ukrainian organization;
Debit 60 Credit 68 subaccount “VAT calculations”
– 59,400 rub. – VAT is withheld from the amount payable to a Ukrainian organization that is not registered for tax purposes in Russia;
Debit 60 Credit 52
– 330,000 rub. – payment to the Ukrainian organization is transferred (minus withheld VAT);
Debit 68 subaccount “VAT calculations” Credit 51
– 59,400 rub. – the amount of withheld VAT is transferred to the federal budget;
Debit 68 subaccount “VAT calculations” Credit 19
– 59,400 rub. – accepted for deduction of VAT, withheld from income payable to the Ukrainian organization and transferred to the budget.
Oleg the Good,
3.How to reflect VAT in accounting and taxation
BASIC
When calculating income tax, do not take into account the VAT amounts charged to customers upon the sale of goods (work, services, property rights) (clause 19 of Article 270 of the Tax Code of the Russian Federation).
Input VAT will also not affect the calculation of income tax. This is due to the fact that amounts of input tax presented by Russian counterparties are accepted for deduction (clause 1 of Article 171 of the Tax Code of the Russian Federation). However, there are exceptions to this rule. In some cases, input tax amounts must be included in the cost of purchased goods (work, services, property rights). In this case, the amount of VAT will be included in expenses when reflecting the cost of goods (work, services, property rights) in tax accounting.*
Oleg the Good, Head of the Corporate Income Tax Department of the Department of Tax and Customs Policy of the Ministry of Finance of Russia
4. Is it possible to take into account when calculating income tax the amount of VAT (its analogue) that a Russian organization is obliged to pay on the territory of foreign states?
Yes, you can.
When calculating income tax, any economically justified and documented expenses are taken into account (clause 1 of Article 252 of the Tax Code of the Russian Federation). Therefore, if VAT (its analogue), paid under the laws of a foreign state, meets these criteria, its amount can be included in other expenses associated with production and sales, on the basis of subparagraph 49 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation. The regulatory agencies take the same position in relation to other foreign taxes. Expenses cannot include only those mandatory payments that can be offset against Russian taxes. For example, income tax () and corporate property tax (). Such clarifications are in letters of the Ministry of Finance of Russia dated December 11, 2013 No. 03-08-05/54294, dated August 12, 2013 No. 03-03-10/32521 and the Federal Tax Service of Russia dated September 3, 2013 No. ED-4- 3/15969.
You can confirm the payment (withholding) of tax abroad using any documents drawn up in accordance with the laws of foreign countries or with business customs applied in their territories. For example, payment documents indicating the transfer of tax to a foreign counterparty or to the budget of a foreign state. In this case, documents drawn up in a foreign language must be translated into Russian. This was stated in the letter of the Ministry of Finance of Russia dated February 21, 2014 No. 03-08-05/7410.
It should be noted that previously the Russian Ministry of Finance took a different position. Representatives of this department argued that when calculating income tax, only those taxes that are assessed in accordance with Russian legislation can be taken into account (subclause 1, clause 1, article 264 of the Tax Code of the Russian Federation). This was discussed in letters dated February 28, 2011 No. 03-03-06/1/112, dated April 28, 2010 No. 03-03-06/1/303, dated December 16, 2009 No. 03-03- 06/1/813. However, with the release of later clarifications, these lost their relevance.*
5.How to prepare and submit a VAT return to a tax agent who is a VAT payer
Filling procedure
Fill out the VAT return according to the rules common to all tax returns.
If during the quarter the organization performed only the duties of a tax agent, then, based on its results, include a title page and section 2 in the declaration. In section 1, put dashes.
If during the quarter the organization was not only a tax agent, but also carried out transactions subject to VAT, draw up a general tax return, which includes section 2 intended for tax agents.*
Checkpoint of a subdivision of a foreign organization
If you are filing a declaration for a Russian organization, put dashes on line 010.*
If for a foreign language, then take into account a number of features.
On line 010, indicate the checkpoint of the division that performed the transactions and is a tax agent. Please note the following: A foreign organization can have several divisions in Russia and choose one of them, through which it pays taxes and submits reports (clause 7 of Article 174 of the Tax Code of the Russian Federation). But please indicate the name of the counterparty if it is:*
- government agency that leases its property;
- a seller who sells treasury property;
- a foreign organization not registered for tax purposes in Russia;*
- a bankrupt debtor whose property is acquired by an agent.
On line 020, put dashes if there is actually no counterparty, that is, in cases where the tax agent implements:
- property by court decision,
- confiscated property;
- ownerless valuables;
- treasures;
- purchased values;
- values transferred by right of inheritance to the state.
Also put dashes on line 020 if the organization (entrepreneur) acquired a vessel that is subject to registration, but is not registered in the Russian International Register of Ships within 45 days after acquisition.
This procedure is provided ;*
Fill in line 090 if the tax agent received an advance payment in the reporting quarter. To do this, take the prepayment amount and indicate it on line 090.
Fill in line 100 if the shipment was made against prepayment. On line 100, indicate VAT on prepayments received in this and previous quarters, against which shipments were made in the reporting period.
If the cost of shipment is equal to or exceeds the prepayment, simply add up all the VAT amounts accrued from prepayments earlier (accounted for on lines 090 of declarations for this and previous periods for this operation), and indicate the result on line 100., and reflect the result on line 060.* ,
– when the buyer returns the goods to the seller;
– if goods, works, services are transferred for one’s own needs, the costs of which are not taken into account when taxing profits;
– if construction and installation work was carried out for own consumption;
– when property is sold, the price of which includes VAT;
– when agricultural products purchased from individuals are sold;
– if amounts are received related to payment for goods (work, services) sold.
The same code is used:
– when registering adjustment invoices issued in connection with an increase in the cost (quantity, volume) of previously sold (purchased) goods, works, services;
– when drawing up or receiving a single adjustment invoice;
– when registering in the purchase book invoices for goods (work, services) purchased for use in transactions subject to VAT at a rate of 0 percent
If your company decides to purchase services (work) from a foreign company (hereinafter referred to as services), then you need to keep in mind that in most cases it becomes a tax agent for VAT. This means that tax must be withheld from the money owed to the foreigner and transferred to the budget. Is this operation new to you? We will tell you under what conditions your organization turns into a tax agent, as well as what documents and how you need to fill out in order to confirm the right to deduct VAT paid to the budget.
When you become a tax agent
The responsibilities of a tax agent will fall on your shoulders if two conditions are simultaneously met:
- The place of sale of services is the territory of the Russian Federation. The rules for determining the place of sale of services are specified in detail in Art. 148 Tax Code of the Russian Federation. For example, the Russian Federation is recognized as the place of sale of consulting, legal, and accounting services if your organization is registered in the territory of the Russian Federation F subp. 4 paragraphs 1 art. 148 Tax Code of the Russian Federation;
- the foreigner is not registered with the Russian tax authorities. To make sure of this, ask your foreign partner for a copy of the certificate of his tax registration in the Russian Federation. If he does not provide you with this document, then check the foreigner yourself on the Federal Tax Service website in the “Check yourself and your counterparty” section. http://www.nalog.ru. If there is no information about its state registration there, you need to act as a tax agent A clause 2 art. 11, paragraph 1, art. 143, paragraphs. 1, 2 tbsp. 161 Tax Code of the Russian Federation.
According to the Ministry of Finance, a Russian company becomes a tax agent when purchasing services not only from foreign legal entities, but also from foreign individual entrepreneurs th Letter of the Ministry of Finance of Russia dated June 22, 2010 No. 03-07-08/181. Of course, one can argue with this: the totality of the norms of paragraph 1 of Art. 143 and paragraph 2 of Art. 11 of the Tax Code of the Russian Federation allows us to conclude that foreign entrepreneurs are not recognized as VAT payers. But it’s easier to still pay VAT, especially since it can then be deducted or included in expenses.
Your company becomes a tax agent regardless of whether it is a VAT payer (exempt from the obligations of a VAT payer under Article 145 of the Tax Code of the Russian Federation) or applies a special tax regime s clause 2 art. 161, paragraph 4 of Art. 346.1, paragraph 5 of Art. 346.11, art. 145 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated January 11, 2008 No. 03-07-08/06; Letter of the Federal Tax Service of Russia for Moscow dated June 18, 2009 No. 16-15/61630.
If a foreign organization provides you with services that are not subject to taxation, you do not need to pay tax. The list of such services is established by Art. 149 of the Tax Code of the Russian Federation and does not depend on who implements them - a Russian or foreign organization. For example, if a foreign company transfers to you the right to use an industrial design, then you do not have to withhold and pay tax to the budget. s subp. 4 paragraphs 1 art. 148, sub. 26 clause 2 art. 149 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated October 21, 2008 No. 03-07-08/240. In this case, is it necessary to reflect the purchase of the service in the VAT return? We asked the Ministry of Finance about this.
From authoritative sources
Advisor to the Department of Indirect Taxes of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia
“If, on the basis of Art. 149 of the Tax Code of the Russian Federation, services are not subject to taxation, then a Russian organization or individual entrepreneur does not pay tax to the budget, but is recognized as tax agents for VAT and must submit b clause 44 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 No. 104n (hereinafter referred to as the Procedure for filling out a VAT return) VAT return with completed section 7.”
What to do in a situation where you do not transfer money to a foreigner? For example, as payment under a contract, you transfer property or provide services to a foreigner (perform work). After all, it turns out that you cannot withhold tax and, accordingly, must, within a month from the moment of transfer of property or provision of a counter service in any form, inform in writing about the impossibility of withholding VAT to the tax authority n subp. 2 p. 3 art. 24 Tax Code of the Russian Federation; clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 41, Plenum of the Supreme Arbitration Court of the Russian Federation No. 9 of 06/11/99. We decided to find out the opinion of Ministry of Finance specialists on this issue.
From authoritative sources
“A Russian organization is a tax agent, among other things, in cases where services are paid by offsetting mutual claims, as well as when property is transferred as payment or counter-services are provided A Letter of the Ministry of Finance of Russia dated April 16, 2010 No. 03-07-08/116. The offset must be made for the amount excluding VAT, which is payable to the budget.
In general, VAT is transferred to the budget simultaneously with the transfer of money to foreigners at para. 2 clause 4 art. 174 Tax Code of the Russian Federation. But since with this method of payment money is not transferred to the foreigner, VAT must be paid in equal installments no later than the 20th day of each of the 3 months following the quarter in which the counterclaims were offset (property transferred, services provided).
At the same time, organizations, like all tax agents, need to submit b Appendix No. 2 to the Procedure for filling out a VAT return VAT declaration with completed section 2.”
Ministry of Finance of Russia
We calculate VAT
If you are a tax agent, the VAT base is determined as the cost of services including tax A clause 1 art. 161 Tax Code of the Russian Federation.
For information on how to calculate and pay tax if you transfer money for goods (work, services) purchased from a foreign counterparty to a third party - a Russian company, see:That is, the tax will have to be withheld from the amount transferred to the foreigner, specified in the contract. You transfer the amount of income minus tax to your foreign counterparty. Therefore, even at the stage of concluding a transaction, you should inform your foreign counterparty about the withholding of VAT and set the price in the contract so that he does not lose anything. However, some foreigners do not understand this, believing that they are not VAT payers. Therefore, two situations are possible.
SITUATION 1. VAT is provided for in the agreement
Typically, in contracts with foreign persons in this case, for example, the following wording is used:
- <или>“the established price includes the amount of all taxes payable by the contractor on the territory of the Russian Federation”;
- <или>“price, including VAT at the rate of 18%”;
- <или>“the price increases by the amount of VAT payable on the territory of the Russian Federation”;
- <или>“price plus VAT.”
Under any of these conditions, you have every right to deduct VAT withheld from the income of a foreign performer I, and the latter receives as much for the services as he wanted from the very beginning.
For more information about the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 18, 2010 No. 16907/09, see: 2010, No. 17, p. 8The tax amount is calculated as follows:
- <если>the price includes VAT, then we multiply the price by the rate 18/118;
- <если>the price increases by the amount of VAT, then we multiply the price by 18%.
SITUATION 2. VAT is not provided for in the agreement
As we have already said, foreigners often do not want to accept the terms of indicating VAT in the contract. Or you simply forget to include the relevant conditions in the contract.
WE WARN THE LAWYER
In a contract with a foreigner it must be indicated that the price of services includes Russian VAT, which will be withheld when transferring payment to a foreigner.
If you use the estimated rate when calculating VAT in such a situation, then problems with the foreigner cannot be avoided, because he will receive less than what is specified in the contract. Then you have no choice but to pay tax in excess of the price specified in the contract.
The Russian Ministry of Finance also agrees with this And , dated 11/13/2008 No. 03-07-08/254 , dated 02/28/2008 No. 03-07-08/47. However, in such a situation, problems with deductions are possible, which we will discuss further.
We transfer taxes to the budget
VAT must be transferred to the budget at the same time as payment for foreign services at para. 2 clause 4 art. 174 Tax Code of the Russian Federation. The bank that serves you will not accept an order to transfer money to a foreign company without a payment slip for tax remittance in the budget T para. 3 p. 4 art. 174 Tax Code of the Russian Federation. Therefore, it is necessary to issue two payment orders at once: one for payment of services, the second for the transfer of VAT.
Attention
In the payment slip for agent VAT, you must indicate the payer status “02” (tax agent), and not “01” (taxpayer). The BCC remains the same - 182 1 03 01000 01 1000 110.
Most often, settlements with foreign counterparties are made in foreign currency. Tax to the budget must be paid in rubles X clause 5 art. 45 Tax Code of the Russian Federation. Therefore, in order to determine the tax base, the cost of services must be converted into rubles at the rate of the Central Bank of the Russian Federation on the date of transfer of money to foreigners at clause 3 art. 153 Tax Code of the Russian Federation; Letters of the Ministry of Finance of Russia dated November 13, 2008 No. 03-07-08/254, dated July 3, 2007 No. 03-07-08/170.
We prepare an invoice
You issue an invoice to yourself on behalf of the foreigner no later than 5 calendar days counting from the date of transfer to the foreigner of the advance or money in payment for services already provided G clause 3 art. 168, paragraphs. 1, 2 tbsp. 161 Tax Code of the Russian Federation. If services are provided but not yet paid for, then there is no need to issue an invoice. The procedure for drawing up an invoice has some peculiarities And para. 2 p. 3 art. 168, paragraph 5 of Art. 169, paragraph 6 of Art. 169 Tax Code of the Russian Federation; para. 3-5, 8 of Appendix No. 1 to the Rules for maintaining logs of received and issued invoices, purchase books and sales books when calculating value added tax, approved. Decree of the Government of the Russian Federation dated December 2, 2000 No. 914 (hereinafter referred to as the Rules), let's look at them with an example.
Example. Filling out an invoice by a tax agent
/ condition / Vanil LLC entered into a contract with BSV Ukraine LLC for the provision of legal services. According to the terms of the contract, the price of services is 35,400 rubles. and includes VAT. Payment for services was transferred on March 17, 2011 by payment order No. 29.
03/18/2011 Vanil LLC prepared an invoice for the amount of VAT paid to the budget.
/ solution / The Federal Tax Service recommends filling out the invoice as follows: m.
| Name of goods (description of work performed, services provided), property rights | Unit | Quantity | Price (tariff) per unit of measurement | Cost of goods (works, services), property rights, total without tax | Including excise tax | Tax rate | Tax amount | Cost of goods (works, services), property rights, total including tax | Country of origin | Number of customs declaration |
| 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 |
| Legal services in the field of tax law in Ukraine Provide a description of the services provided | - | - | - | 30 000Amount paid to a foreigner under the contract, excluding VAT | - | 18/118 Tax rate | 5 400It is calculated as follows: column 9 indicator x column 7 indicator | 35 400Cost of services under the contract | - | - |
| Total payable | 5 400 | 35 400 | ||||||||
The invoice is signed by the chief accountant and manager clause 6 art. 169 Tax Code of the Russian Federation; Letter of the Federal Tax Service of Russia dated August 12, 2009 No. ШС-22-3/634@ LLC "Vanilla"
If services are paid in part, an invoice must be issued for each partial payment amount.
Since there is no need to give the invoice to anyone, it is enough to write it out in one copy, first register it in the sales book and para. 8 clause 16 of the Rules, and when claiming a deduction - in the purchase book To para. 4 clause 13 of the Rules.
If services are paid in foreign currency, then you can indicate the amounts in the invoice in foreign currency e clause 7 art. 169 Tax Code of the Russian Federation. But for your own convenience (so that you can see how much money needs to be transferred to the budget), it is better to immediately fill it out in rubles, converting the currency into rubles at the required rate.
We accept VAT for deduction
If you use the simplified tax system, pay UTII or Unified Agricultural Tax, or have received an exemption from paying VAT under Art. 145 of the Tax Code of the Russian Federation, then you include the withheld VAT in the cost of purchased services G clause 2 art. 170 Tax Code of the Russian Federation. If you are a VAT payer and use the purchased services in activities subject to VAT, then you deduct the tax paid at clause 3 art. 171 Tax Code of the Russian Federation.
By the way, you can also deduct VAT paid above the contract price at Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 18, 2010 No. 16907/09; Resolution of the Federal Antimonopoly Service dated February 24, 2009 No. A12-12162/2008; FAS UO dated November 5, 2009 No. Ф09-8411/09-С2. In particular, the Ministry of Finance indicates that in essence this is a tax withheld from the possible income of a foreigner A Letters of the Ministry of Finance of Russia dated 02/04/2010 No. 03-07-08/32, dated 02/28/2008 No. 03-07-08/47. However, your inspection may think differently. And if you don’t need complications with deductions, draw up contracts in such a way that the withholding of tax from a foreigner’s income is obvious to the inspectors. For example, as suggested in situation 1 in the section “Calculating VAT”.
Conditions for accepting VAT for deduction
You will need the following documents s clause 1 art. 172 Tax Code of the Russian Federation:
- payment order confirming payment of ND WITH para. 3 p. 3 art. 171 Tax Code of the Russian Federation;
- an invoice that you create yourself e para. 2 p. 3 art. 168 Tax Code of the Russian Federation;
- act or other document confirming the provision of services.
If you pay for a service in advance, you will be able to claim a deduction only after the services have been provided and you have the appropriate primary documents s Letters of the Ministry of Finance of Russia dated November 29, 2010 No. 03-07-08/334, dated November 20, 2009 No. 03-07-08/238; Letter of the Federal Tax Service of Russia dated August 12, 2009 No. ШС-22-3/634@.
Although in one of the decisions the court recognized that the only condition for applying the deduction is the presence of a document confirming payment of the withheld tax A Resolution of the Federal Antimonopoly Service of October 28, 2008 No. A65-610.2007-SA2-22.
Often, instead of a document, foreign companies provide an invoice. It may well confirm the provision of services if it indicates exactly what services were provided, when, and for what amount.
In addition, the act (invoice) must be translated into Russian To para. 3 clause 9 of the Regulations on accounting and financial reporting in the Russian Federation, approved. By Order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n. If you regularly receive standard documents from your foreign counterparties, in which only digital indicators differ (number, document date, price, etc.), then it is enough to translate the form into Russian once
Russian organizations that attract foreign partners to perform this or that work (service) on the territory of another state may face a problem - how to reflect the costs of paying foreign taxes in tax accounting? We are talking about indirect taxes (including VAT), which were calculated and paid abroad according to the laws of another state.
When foreign VAT cannot be taken into account in expenses
In order to avoid double taxation, the norms of the Tax Code (clause 3 of Article 311, Article 386.1 of the Tax Code of the Russian Federation) allow organizations to take into account only the amount of profit tax (income) or property tax paid in accordance with the legislation of foreign states. For VAT, such an opportunity is not provided (letter of the Ministry of Finance of Russia dated December 16, 2009 No. 03-03-06/1/813, Federal Tax Service of Russia for Moscow dated August 18, 2009 No. 16-15/085547). The Russian Ministry of Finance also opposes the inclusion of foreign VAT amounts in tax expenses (letters of the Russian Ministry of Finance dated November 12, 2010 No. 03-03-06/1/708, dated June 11, 2010 No. 03-03-06/1/407, dated October 6, 2009 No. 03-03-06/1/644).
The Financial Department believes that the amount of this indirect tax cannot be taken into account as part of other expenses, even as “other expenses associated with production and (or) sales” (subclause 49, paragraph 1, article 264 of the Tax Code of the Russian Federation), since to account for expenses a special norm is provided in the form of taxes (subclause 1, clause 1, article 264 of the Tax Code of the Russian Federation). Thus, only those taxes that are accrued in accordance with Russian legislation are recognized as expenses, and foreign indirect taxes, in particular VAT, are not subject to this rule. Therefore, they should not reduce the income tax base.
EXAMPLE
A foreign counterparty provided services to a Russian company on the territory of another state. The cost of services amounted to $300,000 (including indirect tax - $6,000).
Therefore, the company can include in expenses only the amount:
300,000 - 6000 = $294,000
The amount of indirect tax paid under the laws of another state is not reflected in the company’s tax records, i.e. it cannot be included in expenses when calculating income tax, nor can it be offset against Russian VAT.
The Russian Ministry of Finance also believes that indirect tax, which is calculated according to the legislation of another state and paid to a foreign seller as part of the cost of a service, cannot also be included in expenses on the grounds specified in Article 270 of the Tax Code (clause 19 of Article 270 of the Tax Code of the Russian Federation) . That is, we are talking about the impossibility of including in expenses the amounts of taxes presented to the buyer by the taxpayer (in our case, a foreign organization).
At the same time, the financial department prefers not to pay attention to the fact that in our case such expenses cannot be defined as taxes.
Firstly, this provision of the Tax Code deals with Russian taxes, that is, calculated in accordance with the requirements of the Tax Code, and secondly, it is the taxpayer who must present them. As for a foreign seller, he is not one in the sense of Article 19 of the Tax Code. Consequently, this rule has nothing to do with the problem of “foreign” taxes.
By the way, quite recently, the Russian Ministry of Finance once again confirmed its position, noting that VAT amounts charged to a Russian organization when purchasing from a foreign organization works (services), the place of sale of which is not the territory of Russia, cannot be taken into account when calculating corporate income tax (letter Ministry of Finance of Russia dated March 11, 2012 No. 03-04-08/65). Interestingly, as a justification, a reference is made to another norm of Article 270 of the Tax Code (clause 4 of Article 270 of the Tax Code of the Russian Federation).
But if foreign VAT cannot be included in expenses directly, then perhaps this can be done in other ways? For example, first include this expense in the cost of goods (works, services), and only then attribute it to expenses.
Are there other ways to account for foreign VAT?
The Russian Ministry of Finance does not allow foreign VAT to be applied to production and sales costs in the manner prescribed by Article 170 of the Tax Code. That is, the inclusion of tax amounts in the cost of goods (work, services) (clause 2 of Article 170 of the Tax Code of the Russian Federation).
The logic of financiers is as follows: Article 170 of the Tax Code contains an exhaustive list of cases when amounts of VAT paid to a supplier and not subject to reimbursement are taken into account in the cost of purchased goods (work, services) when calculating income tax. A clear reluctance to expand this list can also be seen in some letters from the tax department (letter from the Federal Tax Service of Russia for Moscow dated May 20, 2011 No. 16-15/049561@).
But we should not forget that in our case we are not talking about Russian VAT, but about foreign one, so it is unlikely that the provisions of this article can be applied to it.
It is not surprising that Russian organizations cannot take advantage of the provisions of Article 171 of the Tax Code and submit VAT of another state for deduction (letter of the Federal Tax Service of Russia for Moscow dated October 27, 2011 No. 16-15/104421@).
Thus, even despite the obvious production focus of these expenses, officials in their explanations exclude any possibility of taking into account the amounts of foreign indirect taxes. However, for some cases the Russian Ministry of Finance makes an exception.
This applies to taxes that are imposed on Russian companies when paying for hotel services abroad (for example, during business trips of employees). In this case, the entire amount of tax contained in the invoice can be included in travel expenses (subclause 12, clause 1, article 264 of the Tax Code of the Russian Federation; letters of the Ministry of Finance of Russia dated January 30, 2012 No. 03-03-06/1/37, dated 14.02 .2008 No. 03-03-06/4/8).
On the one hand, it is surprising that in this case financiers consider foreign indirect tax no longer in the sense of a tax, which it really is not under Russian law, but simply as an expense. Moreover, the desire of financiers to find their own special norm for these expenses in Chapter 25 of the Tax Code is clearly visible (letters of the Ministry of Finance of Russia dated 02/09/2007 No. 03-03-06/1/74, dated 01/30/2012 No. 03-03-06/1/37 ).
On the other hand, if the Russian Ministry of Finance had taken a different position and refused to recognize the amount of tax as a justified expense, this would have entailed a violation of labor legislation (Article 168 of the Labor Code of the Russian Federation). After all, the amount of travel expenses that must be reimbursed to the employee is determined based on the primary documents. Consequently, it should also include indirect tax paid on the territory of a foreign state. Otherwise, it would turn out that the employer is obliged to reimburse the employee only part of the expenses incurred by him.
Judicial practice and position of departments
Not long ago, business unexpectedly received support from tax authorities, who recognized that the amounts of foreign indirect taxes paid can be taken into account as expenses when calculating income tax (letter of the Federal Tax Service of Russia dated September 1, 2011 No. ED-20-3/1087).
At the same time, the tax service’s arguments are quite logical: the list of other expenses specified in Article 264 of the Tax Code is open. Therefore, any economically justified and documented expenses can be taken into account as other expenses. There is only one exception. Taxes for which the law directly provides for the procedure for eliminating double taxation by offset (i.e., tax paid abroad is offset against the payment of the corresponding tax in the Russian Federation) cannot be included in expenses. In particular, this applies to foreign income tax and property tax of organizations (clause 3 of article 311, article 386.1 of the Tax Code of the Russian Federation).
In our opinion, this position is the most justified.
By the way, the Constitutional Court of the Russian Federation emphasized that the legislator justifiably abandoned the closed list of costs that can be taken into account when calculating income tax, and provided businesses with the opportunity to independently determine these costs in each specific case. That is, based on the actual circumstances and characteristics of the financial and economic activities of a particular organization (definitions of the Constitutional Court of the Russian Federation dated December 16, 2008 No. 1072-О-О, dated June 4, 2007 No. 320-О-П).
Arbitration practice related to taking into account the amounts of foreign indirect taxes has not yet been sufficiently developed, but there are already court decisions that took the side of business in this matter (regulatory Federal Antimonopoly Service of the Central Election Commission dated October 13, 2011 No. A62-439/2011, FAS Moscow Region dated July 22, 2009 No. KA-A40/6679-09, Federal Antimonopoly Service of the North-West District dated November 23, 2009 No. A56-4991/2009).
