A website from an accountant’s point of view: how to take into account the costs of a website and its maintenance

Content:

We take into account the costs of creating a website.
The website is an intangible asset.

We determine the initial cost of the site.

Letter of the law. When the exclusive right can pass to the employee.

We calculate the amount of depreciation of the site.

Register the domain name of the site.

If the site cannot be classified as an intangible asset.

Note. Since 2008, the concept of non-exclusive rights has not been used.

Costs of hosting and promoting the site.

Calculating the costs of maintaining a website according to the item of basic expenses

Now let's sum it up and calculate how much it will cost to maintain a website in terms of basic expenses. We consider everything to the minimum; we don’t take into account dedicated or VDS servers, we don’t need them.

1. Domain name – 185 rubles/year
2. 2. Hosting – 99 rubles per month or 948 rubles per year (Economy option 59 rubles per month or 588 rubles per year, quite suitable for the first time.)
3. Mailboxes – 0 rubles/year

We make simple calculations and find that maintaining the site will cost only 1,133 rubles per year (773 rubles for the economy option).

The final figure, of course, was calculated correctly, but it will still be less! For example, the same hosting provider RadiusHost, when paying for hosting immediately for a year, has a special promotion - registering or renewing a domain name as a gift. Thus, we get hosting at the “RH 1” tariff and a domain name for only 948 rubles per year , without any additional fees. I think you will agree with me that the price is not very high.

We take into account the costs of creating a website

Today, many companies open websites on the Internet. Let's see what expenses an organization can take into account for these purposes when calculating income tax.

One or a set of several Internet pages related by a common topic and located at a specific address on the Internet is nothing more than a website. The site can contain text materials, photographs, price lists, graphic images, as well as databases, programs, etc.

As a rule, on the website, the company indicates basic information about itself, provides contact information (telephone numbers and locations of offices or stores, surname, first name and patronymic of specialists or managers, their email addresses), a list of activities (name of works and services, assortment goods), messages about ongoing promotions and discounts.

A company can conduct business directly through a website on the Internet, that is, trade through online stores.

The tax accounting procedure for the costs of developing and maintaining an Internet site depends on whether the created object is recognized as an intangible asset.

Additional costs for website maintenance

We've sorted out the main costs, now let's look at what other possible costs for maintaining your own website. Additional costs for maintaining the site include:

• Writing articles (materials) by third-party specialists;
• Website design and development;
• Website promotion (work on internal and external optimization);
• Registration of the site in paid directories.

This list can be expanded endlessly; in other words, if you don’t want to work on the site yourself, you’ll have to pay third-party specialists for it. Prices for freelance services vary widely and can reach several hundred thousand rubles. But paying someone to do something you can do yourself is not our method. At least at the initial stage, while the site is not yet profitable, we will do everything ourselves.

The website is an intangible asset

For profit tax purposes, an Internet site can be classified as an intangible asset if it meets the requirements established in paragraph 1 of Article 256 and paragraph 3 of Article 257 of the Tax Code:

— the organization owns exclusive rights to the website;

— the site is used in the production of products, when performing work, providing services or for the management needs of the organization;

— the site is capable of bringing economic benefits (income) to the company;

— the site’s service life is over 12 months;

— the initial cost of the site is more than 20,000 rubles. (until January 1, 2008 - 10,000 rubles);

— the organization has properly executed documents confirming the existence of the intangible asset itself and (or) exclusive rights to it.

The fundamental difference between an intangible asset and other depreciable property is that the company has exclusive rights to it. From the point of view of civil law, an Internet site is a combination of two objects of copyright - a program that ensures its functioning, and a graphic solution (design).

A company can entrust the development of a website to employees who have an employment relationship with it, or to a third-party organization. If the creation of the website was carried out by one or more employees of the company and this was part of their responsibilities under the employment contract, it is considered that the company independently developed the website. In such a situation, exclusive rights to the site are assigned to the employer (unless otherwise provided in the employment or other agreement between the employer and the author), and copyrights are retained by the direct author (employee). This follows from Article 1295 of the Civil Code. Moreover, the author has the right to compensation.

An organization that has entrusted the creation of a website to a contractor is guided by the terms of the contract concluded with him, the subject of which is the development of an Internet site. In accordance with paragraph 1 of Article 1296 of the Civil Code of the Russian Federation, the exclusive right to a website (computer program or database) developed under such an agreement belongs to the customer. Of course, provided that the agreement between the contractor (performer) and the customer does not provide otherwise.

If, under an agreement to create a website, the contractor reserves exclusive rights to it, the customer organization does not have the right to classify the developed website as an intangible asset.

Website creation: cost accounting

In the process of creating a website, an accountant of an organization may encounter many difficulties. For example, who to contact and how to then deal with the right to the final product? But the most pressing question is: what to do with VAT?

Ownership

Most often, a third-party company is hired to develop a website. Alternatively, you can contact an individual freelancer. In both cases, the contractor can create both a turnkey website and perform part of the work. You can more or less figure out the first problem on your own, but here’s a much more difficult question: who owns the exclusive rights to the final product. As a general rule, according to Article 1296 of the Civil Code, exclusive rights are transferred to the customer. This must be clearly stated in the text of the contract. If there is no such clause, the company cannot consider itself a full-fledged owner of the site. In this situation, a license agreement is drawn up (clause 3 of Article 1233 of the Civil Code of the Russian Federation), then non-exclusive rights will be transferred to the customer. Accordingly, if a company wants to modernize a product, it will have to coordinate this with the rights owner.

Having formalized the contractual relationship, you need to figure out the costs incurred. The following options are possible.

As a general rule, according to Article 1296 of the Civil Code, exclusive rights are transferred to the customer. This must be clearly stated in the text of the contract.

First. All exclusive rights to the site are transferred to the customer (your company). At the same time, the organization plans to operate it for more than 12 months. Then the created product can be considered an intangible asset (clause 3 of Article 257 of the Tax Code of the Russian Federation). And if the site is used in the production of products (performance of work, provision of services) or for management needs and, in principle, can generate income, then this is 100 percent intangible assets.

Next, you need to figure out the costs of the site. After all, if the total expenses exceed 40,000 rubles, then this will already be depreciable property. This means that costs will have to be written off gradually. We emphasize that the minimum useful life is two years (clause 2 of Article 258 of the Tax Code of the Russian Federation).

Initial cost

So, the initial cost includes all costs associated with creating the asset and bringing it to a state in which it is suitable for use. That is, this includes the development of the “engine”, and design, and testing with debugging. Please note: you do not need to include VAT and excise taxes in the “initial figure”. There is only one exception - the site is used in activities not subject to VAT. Then the tax must be included in the initial cost.

Separately, it is worth mentioning the fee for the domain name (site name) and hosting. The first in itself cannot generate income for the company. Therefore, it is not taken into account as a separate intangible asset. However, the domain name is an integral part of the site, without which it cannot function. Accordingly, the fee for the initial registration of the name is included in the initial cost of the intangible asset. But the costs of re-registration of a domain name are subsequently reflected as part of other expenses. This is what officials recommend doing (see letter from the Federal Tax Service of Russia for Moscow dated January 17, 2007 No. 20-12/004121).

As for hosting services, we are talking about a fee for renting space on the provider’s server where the site will be physically located. Such costs are always taken into account as other costs on the basis of Article 264 of the Tax Code (for example, subparagraph 49, paragraph 1).

Separately, it is worth mentioning the fee for the domain name (site name) and hosting. The first in itself cannot generate income for the company. Therefore, it is not taken into account as a separate intangible asset.

Option two. Exclusive rights to the site belong to your company. But the site cost less than 40,000 rubles, or it is planned to be used for a short time (no more than 12 months). In such circumstances, expenses can be taken into account, but as other expenses. The basis for this is subparagraph 26 of paragraph 1 of Article 264 of the Code. Guided by the same norm, expenses for the initial domain registration are also taken into account. By the way, expenses can be written off entirely and immediately in the period when the acceptance certificate for the completed work on developing the page is drawn up. For hosting fees, subclause 49 of clause 1 of Article 264 of the Tax Code is suitable.

Option three. The customer organization does not own exclusive rights to the site. Obviously this is not an IMA. Typically, websites are created to promote an organization’s products or services. This means that expenses can be written off as advertising (Clause 4, Article 264 of the Tax Code of the Russian Federation). The correctness of this approach was confirmed by the Russian Ministry of Finance in letter dated July 28, 2009 No. 03-11-06/2/136. By the way, this letter was addressed to. And special regimes take into account advertising expenses according to the same rules as companies in the general regime.

I would like to add that the costs of advertising via the Internet are written off entirely. Accordingly, there is no need to standardize costs. It is logical that fees for hosting and a domain name are taken into account in the same way as the costs for the site itself. That is, as part of advertising costs.

VAT

The problem with VAT arises if third-party contractors are involved in website development. When the page is made by the company’s employees, there is no need to charge tax.

If the contractor is an individual or uses the simplified tax system, the issue of VAT also disappears by itself. Such a performer does not have to submit tax due to paragraph 1 of Article 143 and Article 346.11 (clauses 2 and 3) of the Code.

The problem with VAT arises if third-party contractors are involved in website development. When the page is made by the company’s employees, there is no need to charge tax.

But with design studios in general mode the situation is more complicated. The catch is that the implementation of exclusive rights to inventions, utility models, industrial designs, programs for electronic computers, databases, topologies of integrated circuits, production secrets (know-how), as well as rights to use the specified results of intellectual activity on the basis of a license the contract is not subject to VAT (clause 26, clause 2, article 149 of the Tax Code). The rule cannot be ignored due to paragraph 5 of Article 149 of the Code.

Formally, it turns out that any work on creating a website is not subject to VAT. Moreover, it does not matter whether exclusive rights are transferred to the customer or not. However, in reality everything depends on the terms of the contract. If the contract specifies the total price, then VAT is charged, as usual, on the entire amount of work performed. When individual elements are highlighted, the cost of transferred rights to the site is not subject to VAT. The price of other work under the contract is subject to VAT according to the rules of Chapter 21 of the Tax Code.

With deductions everything is simple. The entire amount of VAT can be deducted if the conditions of Articles 171 and 172 of the Tax Code are met. That is, when there is an invoice and a “primary document” indicating acceptance.

If the agreement provides for an advance payment procedure, VAT can also be deducted from the transferred advance payment. Only in the future will the “advance” VAT have to be restored. This will have to be done in the quarter when the work is accepted. In the same period, the customer company will be able to deduct VAT “on shipment”.

Publication date: April 12, 2013, 10:15

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We determine the initial cost of the site

Intangible assets are classified as depreciable property. Their cost is repaid by calculating depreciation (clause 1 of Article 256 of the Tax Code of the Russian Federation).

According to paragraph 3 of Article 257 of the Tax Code of the Russian Federation, the initial cost of a website is defined as the sum of expenses for its acquisition (creation) and bringing it to a state in which it is suitable for use. It does not include VAT and excise taxes.

The cost of a website developed by the organization’s employees is formed as the sum of the actual costs of its creation. These include, in particular:

— expenses for remuneration of workers directly involved in the creation of the site;

— patent fees, registration fees and other payments related to the execution and registration of exclusive rights;

— expenses for services of third parties;

- material costs;

- other similar costs.

The initial cost of the site is not increased by the amount of unified social tax and contributions for compulsory social insurance against accidents at work and occupational diseases, accrued from payments in favor of the workers who developed the site. The fact is that the specified tax and insurance premiums reduce the taxable profit of the current period as part of other expenses (subclauses 1 and 45 of clause 1 of Article 264 of the Tax Code of the Russian Federation, respectively). In addition, other taxes and fees taken into account in accordance with the Tax Code when calculating income tax are also not included in the cost of the site.

The initial cost of a website ordered to a contractor is formed from the amount paid for development and the costs of the customer organization for installing the resulting software package, debugging, testing, etc.

How much does website development cost?

Hi all! I would like to touch on a very important topic - how much does it cost to create a website and why exactly so much. At first glance, the website development market is oversaturated, in Tomsk alone there are currently about 150 organizations and their number is growing very rapidly, however, those who at least once in their lives have faced the problem of choosing a contractor know that normal developers can be counted on the fingers of one experienced hand milling operator Anticipating - yes, T-studio is cool, we consider ourselves “normal”.

Let's take an example - you have a small company that buys things in China and resells them in Tomsk. For a long time you have been working through groups on social networks, a certain client base has accumulated, which is growing at a good pace, and you are tired of constantly answering in messages what sizes are in stock, what has already been sold, what will be in stock soon, etc. The solution is obvious - you need your own website, where your entire assortment will be with the ability to order, pay, ask a question, in general, in appearance - a fairly standard online store. You type “website creation in Tomsk” into a search engine or open 2Gis, send your request to everyone and wait impatiently... About half will not answer you at all, because these were the guys who decided “we will make websites”, added themselves to 2Gis, but ... “The boy was going to success, it didn’t work out, it didn’t work out” (c). There are no orders and they have been doing something else for a long time. Another quarter will answer you when you have already chosen a performer. They are probably too busy to respond to incoming requests. The bottom line is you will get about 15-20 offers.

The range of prices will be simply shocking, from 5,000 rubles. up to 3,500,000 rub. Most likely, you will choose something close to the lower limit, but not the cheapest, a studio that does not have the worst portfolio, thousands for 25,000 - 30,000 rubles. and they have already made several similar stores, with the thought “yes, for 1,500,000 of course they do a very cool thing, but I don’t need something outstanding, for 25 it’s a normal option.” This is logical, we all want to save money and it’s not clear why I should pay 3,500,000 when there are better offers. Let's try to figure out why there is such a range in prices and why you can't get a good result for 30 thousand.

On the surface, everything is simple - when you contact a studio, you rent its employees in stages for several months and the entire amount is the sum of the number of personnel involved, multiplied by the number of hours spent and the cost of an hour. In turn, the cost of an hour includes all expenses, salaries, risks and margins.

The biggest influence on the cost is the number of employees involved; in each company you will receive a different set of services. For those 25-30 thousand, you will get a website on a template and a free management system like WordPress or Joomla, which will work somehow and at best will not bring you any clients, and at worst will scare you away, because for 30 thousand it’s unlikely whether 20 specialists will work for several weeks or months.

I would like to note right away that there is a category of sites for which this is a completely tolerable option - it’s called “a site for the sake of a site.” If your slogan is “everyone has it and we should have it,” then such a template solution will do just fine for you.

Let's step back a little and return to our example with the store.

You chose the option for 30 thousand, and ended up getting a store with a free management system and a modified template design. You had a huge quarrel with the performers, because in 90% of cases the deadlines are missed, the result is not at all what you expected and the work was handed over “to hell”. For 30,000, these 1-2 people who made the site are not interested in your sales, in their reputation, or in general in anything other than your money, because they need to exist, they are now “businessmen” and “don’t work for their uncle »

And now you have a store, it seems that you can add products and you can buy them, but no one buys anything or visits the site. Nobody knows about you, and those who accidentally visit the site close the site very quickly and the failure rate reaches 80-90%. It is very inconvenient to work with the site - it is impossible to create different sizes for one product, there is no unloading provided, the text does not change everywhere, etc. and so on. The problem is that this was done on a CMS and it doesn’t provide anything more and no one thought about the design, it was simply drawn by incompetent people or they even downloaded a template.

We are approaching the end...

You cannot make a functioning online store for less than 150-200 thousand. This is the lower limit. Why?

You need to clearly analyze your business. Understand your target audience, their behavior, habits. Taking this into account, design the structure, usability, make prototypes of all pages and elements, place emphasis, laying there the fundamental foundations of marketing and the psychology of buyer behavior. Draw the design of the entire site, including seemingly unnoticeable things like icons and other little things that have a lot of meaning. Give all the text to copywriters so that they can put them in order. Create an adaptive layout or simply a different display for different devices, supporting it with trending solutions. Program the entire Backend of the site, test the site on real data, optimize its operation. Do SEO optimization, think about how to further promote your site, where to advertise, what steps to take.

All this will take about two months of work by more than ten specialists in different fields. How much could it cost? Using our studio as an example, the amount would be about 200-300 thousand at the moment, but we are growing and developing and the cost is rising.

To a person who has never encountered website creation before, it may seem like a lot. This year, T-studio received a bunch of diplomas for developing online stores. We rank 9th in Siberia and 74th in Russia. With one interesting amendment - in the lower price segment. The entire rating was divided into 4 main parts, 4 price segments:

• premium - stores costing from 1.5 million
• top - from 750 thousand to 1.5 million
• average - from 200 to 750 thousand
• lower - up to 200 thousand

Our studio is in the lower price segment.
The Russian rating believes that for 200 thousand you can only make stores based on templates. Why do others do for 1.5 million what we do for 300 thousand? We return to the formula “the number of personnel involved, multiplied by the number of hours spent and the cost of the hour.” If we have 10 people making your website, then in another studio there will be 50 and the range of services provided will be much wider. Most often, their cost includes full further support, advertising budgets, corporate identity, brand output and positioning, naming, etc.

And not the least role in determining the price, as in any field, is played by the brand of the studio itself and its experience. After all, we sell our experience, acting as experts in this field. Hence the formation of the cost of an employee’s hour. Small companies are ready to work for 200 rubles per hour, as long as there are clients and “food”. Major market players sell their brains for much more

Well, of course, the number of hours directly depends on the functionality you need. Each customer includes a different set of capabilities in the same terms.

First results

No matter how trivial it may sound, in most cases, the cost of development is directly proportional to the result and savings are not appropriate here. You can spend 300 thousand, and the site will work for you, becoming an additional business tool, easy to use and improve, which will ultimately pay for itself very quickly. Or you will first spend 30 thousand on the site, then another 30 on improving it, 20 on optimization, 40 on promotion and advertising, and in the end, after a year or two, you still order a normal site, because what you got before No one will undertake to improve this.

Always check with the contractor what exactly they will do for this money, carefully look at their portfolio, how they implemented similar tasks and, if possible, communicate with clients. Just communicate, you and I understand perfectly well that reviews should be listened to, not read.

Of course, there are exceptions in the form of studios that ask for a lot of money for outright poop, but our little tips will help you avoid such comrades as much as possible.

Most often, beginning entrepreneurs, like our example, forget that it is not enough to make a website - it needs to be made convenient, functional, promoted, advertised, set up a huge business process associated with it, hone logistics and constantly support it. We include continuous improvement in our support. You can’t make a “candy” right away; inevitably, as you use it, a lot of functionality is replayed, the project acquires new capabilities.

And finally the finale

Remember that almost any company, not just studios, goes through several stages of formation:

We work as long as we have money, we take on any job at a reasonable cost. We work not for money, but for reputation, sometimes doing work at a loss or for free. By accumulating experience and making headway, we begin to do more or less worthwhile things. More expensive orders are coming because... I already have experience and the company is well-known. We don’t take on extra work, we do what we know how to do and constantly improve. Experts in their field. The main goal is to make cool and convenient things, and money is now just a big, pleasant bonus to the product being released. As a result, the cost of projects is very high, the studio is very busy and popular. 90% of the development market is at the first stage and will never cross it, these “companies” close early. This is where there is such a range of prices and all the slogans “website for 5,000”, “store for 9,999 rubles.” and the newfangled “conversion-guaranteed sales pages.” They only sell them to you.

T-studio has just entered the fourth stage and is improving, and maybe even at the very end of the third. Companies offering solutions worth more than 1 million. rubles have long been in the fifth

That's all.

Have we found out how much a website costs? I think yes. There are no exact figures, each project is unique, but there is an understanding that it is not cheap even for 20,000 rubles. They are trying to “sell” you outright shit.

How to choose the right studio? Carefully analyze the portfolio, communicate with former and current clients, look for it in popular ratings and search for information.

Can there be a studio with an impeccable reputation? No, there is nothing bad about it. There are always clients with whom disagreements arise during the work process. For various reasons, there is no point in listing them.

PS

I would also like to add that most customers think according to the principle “more is better”, adding unnecessary functionality and taking up useful space on the site, creating a bunch of unnecessary text, reducing indents, etc.

In fact, making a simple and understandable interface is much more difficult than piling up a mess of elements, pictures and icons. And “air” on the site is now trending

“Good design is the absence of design” (c)

Letter of the law. When can an exclusive right pass to an employee?

The exclusive right to a work created within the scope of the employee’s job duties (official work) belongs to the author if the employer, within three years from the day the official work was placed at his disposal, does not perform one of the actions (Clause 2 of Art. 1295 Civil Code of the Russian Federation):

- will not start using this work;

- will not transfer the exclusive right to it to another person;

- will not inform the author about keeping the work secret.

Who created the site?

A website can be created either by third-party contractors (an Internet agency, an individual freelancer) or by the organization’s own employees. We discussed the situation with the creation of a website by specially trained people above; then we will talk about cases when the website was created “on our own.”

The site may be included in the IMA if the employment or other agreement with the employee involved in the development of the site does not provide for the retention of all exclusive rights to the site (Article 1261, paragraph 2 of Article 1295 of the Civil Code of the Russian Federation). In this case, the cost of the site will consist of the salaries of the employees involved in the development, as well as insurance premiums from their salary, costs of maintaining fixed assets (other property) and intangible assets used in the creation of a new asset, as well as depreciation amounts accrued on them , government, patent and other similar duties and other expenses required to create an Internet site.

We calculate the amount of depreciation of the site

To calculate depreciation of an intangible asset, it is necessary to determine its useful life. This is recognized as the period during which the object serves to fulfill the goals of the organization’s activities (clause 1 of Article 258 of the Tax Code of the Russian Federation). The taxpayer determines the useful life of an intangible asset independently on the date of its commissioning based on the validity period of the patent or certificate or the period of use of the object stipulated by the relevant agreements.

This means that if the contract for the development of an Internet site stipulates the expected useful life of its use, the organization, when calculating depreciation of the site, is guided by exactly this period.

Let’s say this period is not specified in the contract with the contractor, or the company developed the site on its own. Then she has the right to independently set the useful life of the site and consolidate it in the tax accounting policy.

If the useful life cannot be determined, then, according to paragraph 2 of Article 258 of the Tax Code of the Russian Federation, the object of intangible assets will have to be amortized over ten years, but not more than the period of activity of the taxpayer. Therefore, in order to avoid problems with justifying the useful life of the site, it is advisable to indicate this period in the contract with the developers or in the technical specifications drawn up for employees.

The organization begins to calculate depreciation from the 1st day of the month following the month in which the site was put into operation (clause 2 of Article 259 of the Tax Code of the Russian Federation). The date of commissioning of the site is the moment of its placement on the Internet. By this time, all work on creating, testing and setting up the site should be completed. The company independently calculates the amount of depreciation charges based on the initial cost of the site and its useful life.

Does the customer have full rights to the site?

You can take into account the costs of creating a website in different ways, depending on whether the website is an intangible asset.

Intangible assets ( intangible assets of the organization

) are
non-monetary assets that do not have physical form.
Depending on whether the enterprise has exclusive property rights to the website or not, expenses for it form the value of an intangible asset (IMA) or are included in current ones.

In tax accounting, a website can be displayed as an intangible asset of an organization (IMA) if the customer has exclusive (full) rights to the website (this is reflected in the agreement with the developers), and a number of conditions are met: cost of the website (excluding VAT) must be more than 40,000 rubles, the useful life is more than 12 months and the site must have the ability to generate income. In accounting, the same criteria apply (except for the cost of the site) for classifying a site as an intangible asset.

Important: If the site is registered as an intangible asset, then the initial payment for the domain name will be included in the cost of the site (Resource), and the subsequent renewal will be included in the running costs. Hosting costs are included in business expenses for ongoing activities.

If the site is recognized as an intangible asset, then all costs for its creation are accumulated in account 08 (sub-account “Creation of intangible assets”). The services of the development organization, the purchase of a domain name, and the purchase of licensed software (if necessary) are displayed here. After placing the site on the Internet (putting the intangible asset into operation), the cost of the site is debited to account 04.

Important: The cost of a website included in intangible assets is written off through depreciation. Depreciation must be calculated from the month following the date of commissioning of the intangible asset.

If an organization has exclusive rights to a website, it can officially register them. This is entirely voluntary. The costs of creating a website will be displayed as intangible assets in any case (regardless of whether there is a registered patent or not). When registering rights to an organization’s website, the state fee for a patent is included in the costs of creating the website.

Internet agency "Mitra" does not transfer copyrights to intellectual property; created by our employees during the performance of work: design, prototypes and program codes of the resource, illustrations and photographic images, texts remain ours. Therefore, the customer does not have exclusive rights to the website in full and, accordingly, cannot display it as intangible assets.

If the contract does not state that the customer company receives exclusive ownership of the site, then the costs of its creation are taken into account in account 97 “Deferred expenses” and written off in equal shares over the useful life of the site. The useful life of the site is usually not specified in the transfer documents. By default, the useful life of the site is 10 years, but not longer than the life of the organization. The organization has the right to establish a shorter period for using intangible assets and secure it by order of the manager.

Important: This method of writing off costs is not profitable in most cases for organizations, but it is considered safer in terms of eliminating conflicts with tax authorities.

Also, the cost of the site can be written off as an expense at once. This approach can be enshrined in the accounting policy of the organization (classifying such expenses of the organization as indirect and writing them off at a time), which will be an additional argument in the dispute with tax authorities.

Important: One-time recognition of website expenses is the best accounting option, although more risky.

Registering a website domain name

After completing the creation of the site, you must assign it a domain name and register it in the prescribed manner.

The domain name of a site is its unique name and address on the Internet (for example, the website of the Russian Tax Courier magazine is www. rnk. ru). The domain name is registered to ensure its uniqueness at the Russian Research Institute for the Development of Public Networks (RosNIIROS) or with registrars authorized by it. Services for registering a domain name are considered provided from the moment the information is entered into the domain name register.

The website domain name is not recognized as an independent intangible asset, since it is not the result of intellectual activity. But if the site is accounted for as an intangible asset, the costs of the initial registration of its domain name are included in the initial cost of the site (clause 3 of Article 257 of the Tax Code of the Russian Federation). After all, the initial cost of an intangible asset is defined as the amount of expenses not only for its acquisition or creation, but also for bringing it to a state in which it is suitable for use. Without registering a domain name, a website cannot function.

Primary means the registration of a domain name, carried out when creating a website. Typically it is valid for one year. Subsequently, the domain name must be re-registered annually. It does not lead to changes in the quality characteristics of the website and does not affect its initial cost.

The costs of renewing registration are included in other expenses associated with production and sales (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation). They are taken into account gradually during the validity period of the domain name registration specified in the relevant agreement (Clause 1 of Article 272 of the Tax Code of the Russian Federation). If the registration period is not specified in the contract, the organization distributes the costs independently.

Example 1

CJSC Fragment decided to place its own website on the Internet. The organization entrusted the development of the website to its specialists working under employment contracts. The work was carried out from February to March 2008. In April 2008, the company's website was posted on the Internet. The costs for creating the site were:

— programmers’ salary — 80,000 rubles;

— UST, insurance contributions to the Pension Fund and for injuries from the salaries of programmers — 20,960 rubles;

— depreciation of computers and other fixed assets that were used in the development of the site — 3,900 rubles;

— design layout of the website performed by a third party — 23,600 rubles, including VAT 3,600 rubles;

— initial registration of a website domain name — 2006 rubles, including VAT 306 rubles.

Exclusive rights to the site belong to CJSC Fragment, since the organization independently developed the site and the employment contracts with the employees involved did not provide for a special procedure for the transfer of these rights. In addition, the created site meets the requirements for intangible assets. Therefore, the company takes into account the developed website as part of intangible assets. The organization established its useful life as a general rule - ten years (120 months).

The initial cost of the site in tax accounting is 105,600 rubles. (80,000 rub. + 3,900 rub. + (23,600 rub. - 3,600 rub.) + (2,006 rub. - 306 rub.)). Amounts of unified social tax, insurance contributions to the Pension Fund and for injuries from programmers' salaries are not included in the initial cost of the site. They relate to other expenses associated with production and sales, and reduce the taxable profit of current periods.

Since the site was posted on the Internet in April 2008, JSC Fragment begins to accrue its depreciation in May. The amount of monthly depreciation recognized for profit tax purposes is 880 rubles. (RUB 105,600: 120 months).

Costs for developing a company website

Of course, the costs of development of the website is a factor that must be taken into account when creating your own resource. This aspect includes the amount spent not only on the creation, but also on the promotion of the Internet page.

Website development costs

Necessary costs for website development

For every company, a website is necessary to achieve certain goals. Some companies are trying to promote goods and services here, others are trying to increase the status and reputation of their name, and others are simply attracting the target audience and searching for new clients.

In any case, the cost of creating a website is considerable. But if the company’s business is truly profitable, then these investments will pay off soon. Our specialists will help make the promotion process effective, high-quality and competent.

Of course, the costs of development of the website is a factor that must be taken into account when creating your own resource. This aspect includes the amount spent not only on the creation, but also on the promotion of the Internet page.

Many companies try to create websites on their own, since this option requires less money. There are also specialized portal designers on the Internet for free, but here you need to understand that such a site is unlikely to attract many clients, since many companies use similar services. In addition, many functions that would attract users and future consumers cannot be added to such constructors. Therefore, it is much smarter to look for profitable and inexpensive offers for creating and promoting websites in order to try to save on this.

Costs for website development and promotion

Today you can find many exchanges where freelancers work. If you choose this option of searching for a performer, then the costs of developing a website may not be so large. There are many craftsmen who are ready to create a project for an inexpensive fee. For example, a regular blog project and its launch will cost from one to three thousand rubles. This is actually quite a bit. However, it is better for serious organizations to choose a different direction, because their website must be original and unusual. But the cost of such a resource will be higher.

Website development costs

If a company is just starting its activities, then in this case, to create a website, it will be enough to install one of the popular engines and a design selected from the templates that best reflects the company’s activities. In addition, the mandatory costs of creating a website include paying for a domain and hosting. Hired performers can also do this. But here everything is simpler, since the cost of annual maintenance will cost no more than three hundred rubles. You can also choose a monthly payment of sixty to one hundred and twenty rubles. To organize a business, such money cannot be called a large investment.

If the site cannot be classified as an intangible asset

As already noted, an organization that does not own exclusive rights to an Internet site does not have the right to take it into account as part of intangible assets. There are other situations where a website cannot be classified as an intangible asset, for example:

1) the organization received exclusive rights only to the website design, and it uses the software under a license agreement. And vice versa: the organization has exclusive rights only to the computer program that ensures the operation of the site, and the rights to use the site design are obtained under a license agreement. According to paragraph 1 of Article 1259 of the Civil Code of the Russian Federation, both the website design and the computer program are objects of copyright. However, they should not be recognized as separate intangible assets. The fact is that the constituent elements of the site (design and program) are unlikely to function separately. In addition, design developments by themselves are not likely to bring economic benefits to the organization;

2) the company received exclusive rights to the site for a period of less than 12 months;

3) the cost of exclusive rights to the website is less than 20,000 rubles.

In these cases, the expenses incurred may be recognized in tax accounting. They are recognized evenly over the period for which exclusive rights are obtained or a license agreement is concluded for the use of individual elements of the site or the site as a whole (clause 1 of Article 272 of the Tax Code of the Russian Federation). This period is determined from the relevant agreements. If such a period is not established in the contracts, the organization itself distributes these costs after posting the site on the Internet.

In tax accounting, these costs are considered other expenses associated with production and sales. Depending on the specific circumstances, they may be included in various expenses.

Firstly, if the website contains advertising information about the activities of the organization, the costs of creating the website are taken into account as advertising expenses (subclause 28, clause 1, article 264 of the Tax Code of the Russian Federation). Indeed, on the basis of paragraph 4 of Article 264 of the Code, an organization’s advertising expenses include, in particular, expenses for advertising events through telecommunication networks. Such advertising expenses are not subject to rationing, that is, they are recognized for profit tax purposes in full. A similar position is set out in the letter of the Ministry of Finance of Russia dated March 12, 2006 N 03-03-04/2/54.

Secondly, the cost of an Internet site can be reflected as expenses for the purchase of computer programs and databases in accordance with subparagraph 26 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation.

In other cases, the costs of website development are taken into account as other costs associated with production and sales (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation). Of course, in all of the above options, the costs of creating a website must comply with the requirements of Article 252 of the Tax Code of the Russian Federation, that is, they must be justified and documented, and the website must be used in activities aimed at generating income.

Costs for the initial registration of a domain name for a website that is not an intangible asset are recognized during the registration period (usually one year) and reduce the profit subject to taxation on the basis of subparagraph 49 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation as other expenses. If the registration period is not specified, then the taxpayer distributes such expenses independently. The costs of domain name re-registration are reflected in a similar manner.

In addition, an organization that makes periodic payments under a license agreement for the use of rights to the results of intellectual activity (rights to a website or its individual components - design or software) has the right to include them in expenses on the basis of subclause 37 of clause 1 of Article 264 of the Tax Code of the Russian Federation. Such payments are recognized evenly, that is, in equal shares over the period for which the specified rights are granted.

Example 2

Epizod LLC (trading company) entered into an agreement with Design CJSC (specialized company) to develop an Internet site. The site is supposed to post information about the range and prices of goods sold by the trading company, about current discounts and ongoing promotions. According to the agreement, Epizod LLC receives exclusive rights for five years only to design developments, the cost of which is 46,020 rubles, including VAT of 7,020 rubles. The company uses the software product on the basis of a license agreement. The cost of the computer program is 35,400 rubles, including VAT 5,400 rubles. The license is also valid for five years (60 months). Work on creating the site began in April 2008. In the same month, Epizod LLC registered the site's domain name for one year. For the initial registration, it transferred 1,416 rubles, including VAT of 216 rubles. The site was posted on the Internet on April 25, 2008.

Design developments are not an independent intangible asset, and the website contains advertising information about the company. Therefore, for profit tax purposes, Epizod LLC takes into account the costs of website design as advertising expenses evenly over five years.

Costs for software for which the company does not have exclusive rights are classified as costs for computer programs and recognized evenly over five years (60 months).

The cost of the initial registration of the domain name of the website of Epizod LLC is distributed over the period of validity of the registration, that is, for 12 months, and is taken into account as part of other expenses associated with production and sales.

Every month since May 2008, the company has included 1,250 rubles in current expenses that reduce the tax base for income tax, including:

— advertising expenses — 650 rubles. (RUB 46,020 - RUB 7,020): 60 months);

— expenses for using the software product — 500 rubles. ((35,400 rub. - 5,400 rub.) : 60 months);

— registration costs — 100 rubles. ((1416 rubles - 216 rubles) : 12 months).

In April 2008, the organization recognized the costs of creating a website in the amount of 250 rubles. (1250 rubles: 30 days x 6 days).

Website creation, domain purchase, service choice

Let's say you paid 12,000 rubles for creating a website. For this amount you have a website with a thoughtful design and the necessary functions (catalogue, photo gallery, news feed, etc.).

You must also register a domain name for the site - the one by which you will be searched on the Internet. For example, https://mega-company.ru. Maintaining a domain name will cost you 600 rubles per year.

And then there are possible options. You can choose a site with a subscription service, which includes all basic costs. In this case, every month you pay a certain amount for the maintenance of the site to the development company, and the development company takes care of all the concerns regarding the functioning of the site. Subscription services usually include:

• website hosting (hosting a website on a server) with protection from hacker attacks and malware
• regular site backups - thanks to this, in the event of force majeure, the site can be easily and quickly restored
• domain name management (monitoring its timely payment and domain registration renewal)
• guaranteed technical support (if something breaks, the development company will quickly and without questions fix it)
• information support (the development company will patiently answer your questions and provide the necessary consultations and advice)
• regular site updates - developers are constantly improving the technical base on which the site is created, as well as improving its design and functionality.

With this approach, the vast majority of your expenses are already included in the website’s subscription service.

The cost of maintaining a website per year in this case is calculated very simply: the amount for subscription services is multiplied by 12 months.

But you can choose another approach, in which you will solve all the tasks listed above yourself and pay for them separately. Some companies choose cheap hosting to save money.

However, the cheaper the hosting, the fewer the number of services and the worse their quality. At some point, it is possible that your website will be unavailable to customers. And then, due to low-quality hosting, you will lose much more than you would pay for high-quality one.

It’s even worse if, in the event of a hosting disaster, the data from your site will be irretrievably lost. You will have to restore them, and therefore spend time and money on this.

Note. Since 2008, the concept of non-exclusive rights has not been used

Since January 1, 2008, issues related to rights to the results of intellectual activity and means of individualization are regulated by Part 4 of the Civil Code.

The exclusive right to the result of intellectual activity created by creative work initially arises from its author (clause 3 of Article 1228 of the Civil Code of the Russian Federation). The author may transfer this right to another person according to the agreement.

A citizen or legal entity who has an exclusive right to the result of intellectual activity or to a means of individualization are called copyright holders. They have the right to use such a result or such a means at their own discretion in any way that does not contradict the law (Clause 1 of Article 1229 of the Civil Code of the Russian Federation).

Article 1233 of the Civil Code of the Russian Federation states that the copyright holder can dispose of his exclusive right to the result of intellectual activity or to a means of individualization. In particular, he can:

— transfer the exclusive right to the other party (acquirer) in full under the alienation agreement (Article 1234 of the Civil Code of the Russian Federation);

— grant another person (licensee) the right to use the result of intellectual activity or a means of individualization within certain limits by concluding a license agreement with him (Article 1235 of the Civil Code of the Russian Federation).

According to Article 1236 of the Civil Code of the Russian Federation, licensing agreements are divided into two types:

- an agreement under which the licensee is granted the right to use the result of intellectual activity or a means of individualization, and the licensor retains the right to issue licenses to other persons - a simple (non-exclusive) license;

- an agreement granting the licensee the right to use the result of intellectual activity or a means of individualization without preserving the licensor’s right to issue licenses to other persons - an exclusive license.

Moreover, when concluding any type of license agreement, the exclusive right remains with the copyright holder and does not pass to the licensee.

VAT on electronic services in practice. How it works

On
January 1, 2021, new rules for assessing value added tax on services in electronic form came into force.
In particular, according to the new provisions of Art. 83 and 1742 of the Tax Code of the Russian Federation, foreign organizations providing services in electronic form, the place of sale of which is recognized as the territory of the Russian Federation, must register with the tax authorities as payers of VAT on such services, as well as calculate and pay VAT on services in electronic form independently. In this regard, many questions arise from representatives of foreign companies about the new procedure for assessing VAT on services in electronic form. Consider the following situation. The Company received the right to use software (hereinafter referred to as the Software) from a foreign organization under a sublicense agreement. In addition to the transfer of use rights, the foreign organization provides the following services:

• technical infrastructure support, software management and maintenance and repair services;
• software updates;
• data provision;
• hotline.

In addition, the foreign organization provides other clients in the Russian Federation with services that are not classified as electronic, and also sells goods. We will provide answers to the most frequently asked questions in this situation.

Is the sublicense and support service included in the list of electronic services??

In accordance with sub. 26 clause 2 art. 149 of the Tax Code of the Russian Federation exempts from VAT taxation the sale on the territory of the Russian Federation of exclusive rights to programs for electronic computers, databases, as well as rights to use the specified results of intellectual activity on the basis of a license agreement.

In letter dated September 4, 2021 No. 03−07−14/63 016, the Russian Ministry of Finance indicated that, on the basis of subclause. 26 clause 2 art. 149 of the Tax Code of the Russian Federation, the transfer of rights to use a program for electronic computers on the basis of a license (sublicense) agreement is not subject to value added tax (a similar opinion is contained in letters of the Ministry of Finance of Russia dated March 23, 2021 No. 03−07−08/16 910, Federal Tax Service of Russia dated February 20, 2021 No. SD-4−3/ [email protected] ).

This benefit also applies to license (sublicense) agreements under which non-exclusive rights are transferred (letters of the Ministry of Finance of Russia dated November 11, 2015 No. 03−07−13/1/64 870, dated April 1, 2014 No. 03−07− 14/14 317, dated May 29, 2015 No. 03−07−08/31 060).

Based on this, the transfer of non-exclusive rights to the software is not subject to VAT.

By virtue of paragraph 1 of Art. 1742 of the Tax Code of the Russian Federation, the provision of services in electronic form is recognized as the provision of services through an information and telecommunication network, including through the information and telecommunication network “Internet”, automated using information technology.

Thus, in order to recognize a license agreement as a service in electronic form for the purposes of the tax legislation of the Russian Federation, the following criteria must be met:

1. such services are provided through the Internet (another information and telecommunications network);
2. such services are provided automatically using information technology.

These services, in particular, include the provision of rights to use programs for electronic computers (including computer games), databases via the Internet, including by providing remote access to them, including updates to them and additional functionality ( paragraph 2, clause 1, article 1742 of the Tax Code of the Russian Federation).

In accordance with sub. 4 paragraphs 1 art. 148 of the Tax Code of the Russian Federation, if the buyer operates on the territory of the Russian Federation and purchases services in electronic form specified in clause 1 of Art. 1742 of the Tax Code of the Russian Federation, the place of sale of services is the territory of the Russian Federation.

Thus, the automated transfer of non-exclusive rights to computer software via the Internet will be recognized as a service in electronic form. Moreover, such a transfer is not subject to VAT due to the benefits of subsection. 26 clause 2 art. 1742 Tax Code of the Russian Federation.

On January 1, 2021, the edition of the Tax Code of the Russian Federation came into force with amendments made by Federal Law No. 335-FZ of November 27, 2021, in particular in paragraph 46 of Art. 83 of the Tax Code of the Russian Federation, according to which all foreign organizations providing services in electronic form in accordance with Art. 1742 of the Tax Code of the Russian Federation, regardless of to whom they provide services electronically (individuals, individual entrepreneurs or organizations), must register for tax purposes.

At the same time, a foreign organization must register for tax purposes, even if the services provided by such an organization are not subject to VAT due to exemption under subsection. 26 clause 2 art. 149 of the Tax Code of the Russian Federation.

Russian regulatory authorities take a similar position. Thus, the Ministry of Finance of Russia, in letter dated November 30, 2021 No. 03−07−08/70 969, indicated that if a foreign organization sells electronic services to Russian individuals, such foreign organization has an obligation to register with the Russian tax authorities even in if the provision of such electronic services is exempt from VAT.

In addition to transferring the rights to use the software, the foreign organization provides services related to the transferred software. These include:

• technical infrastructure support service, software management and maintenance and repair services;
• software update service;
• data provision service;
• hotline service.

Technical infrastructure support services may include: changes to live operating system installations, server administration, tape library administration, tape library management software administration and backup copies of system and application software, etc.

By virtue of para. 10 p. 1 art. 1742 of the Tax Code of the Russian Federation, services in electronic form include, in particular, the provision of services for the administration of information systems and sites on the Internet.

According to paragraph 3 of Art. 2 of the Federal Law of July 27, 2006 No. 149-FZ “On information, information technologies and information protection”, an information system is understood as a set of information contained in databases and information technologies and technical means that ensure its processing.

We believe that technical infrastructure support services can be classified as electronic services as information systems administration services.

The software update service consists of installing new versions of software.

This service belongs to the category of electronic services, since by virtue of clause 1 of Art. 1742 of the Tax Code of the Russian Federation, an electronic service is not only the provision of rights to use computer software, but also updates to this software.

The foreign organization also provides data provision services. The essence of this service is to continuously record changes in production data over a certain period and copy the software in each case of changes in this area.

This service falls into the category of electronic services for storing and processing information, provided that the person who provided this information has access to it via the Internet (paragraph 7, paragraph 1, article 1742 of the Tax Code of the Russian Federation).

The hotline service can be provided through the website and includes:

1. eliminating errors reported by software users;
2. introducing amendments to software, as well as creating software solutions aimed at eliminating errors.

Such services are not directly named in the list of services in electronic form contained in clause 1 of Art. 1742 Tax Code of the Russian Federation. Based on this, we believe that hotline services do not fall into the category of services in electronic form.

According to paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, institutions, concepts and terms of civil, family and other branches of legislation of the Russian Federation, used in the Tax Code of the Russian Federation, are applied in the meaning in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation.

In accordance with sub. 9 paragraph 2 art. 1270 of the Civil Code of the Russian Federation, the processing (modification) of a computer program or database means any changes thereto, including the translation of such a program or such a database from one language to another, with the exception of adaptation, i.e., changes made exclusively in for the purpose of operating a computer program or database on specific user hardware or under the control of specific user programs.

Thus, eliminating accidents and errors, introducing amendments to the software, as well as creating software solutions aimed at eliminating the causes of errors and insufficient software efficiency can be considered as software modification.

According to para. 4 subp. 4 paragraphs 1 art. 148 of the Tax Code of the Russian Federation, the place of sale of services (performance of work) for the development of computer programs and databases (software and information products of computer technology), their adaptation and modification, with the exception of the services specified in clause 1 of Art. 1742 of the Tax Code of the Russian Federation, the territory of the Russian Federation is recognized if the buyer of works (services) carries out activities on the territory of the Russian Federation.

In accordance with paragraphs 1 and 2 of Art. 161 of the Tax Code of the Russian Federation, when selling goods (work, services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of these goods (work, services ) including tax.

The tax base is determined by tax agents. They are recognized as organizations and individual entrepreneurs registered with the tax authorities, purchasing goods (work, services) on the territory of the Russian Federation from those specified in clause 1 of Art. 161 of the Tax Code of the Russian Federation for foreign persons, unless otherwise provided in paragraph 3 of Art. 1742 Tax Code of the Russian Federation. Tax agents are obliged to calculate, withhold from the taxpayer and pay the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by Chapter 21 of the Tax Code of the Russian Federation.

However, the Ministry of Finance of Russia, in letter dated April 26, 2021 No. 03−07−08/31 281, indicates that if a foreign organization provides a Russian organization not only with the services in electronic form specified in paragraph 1 of Art. 1742 of the Tax Code of the Russian Federation, but also other services, including consulting, the place of sale of which on the basis of Art. 148 of the Code recognizes the territory of the Russian Federation, then with regard to such services, the obligation to calculate and pay VAT to the budget also rests with a foreign organization. In this regard, a Russian organization purchasing these services from a foreign organization does not have the obligation to pay VAT as a tax agent. A similar position is contained in letters of the Ministry of Finance of Russia dated April 19, 2021 No. 03−07−08/28 275, dated April 5, 2021 No. 03−07−08/24 055, dated April 4, 2021 No. 03−07− 08/23 760, dated April 4, 2019 No. 03−07−08/2376, dated March 28, 2021 No. 03−07−08/21 484.

Thus, failure of a foreign organization registered as a VAT payer on services in electronic form to comply with the obligation to calculate and pay VAT on other services creates a significant risk of claims from the tax authorities.

What obligations does a foreign company that provides electronic services on the territory of the Russian Federation have??

A foreign organization providing services in electronic form must register with the tax authorities as a VAT payer on such services.

In accordance with paragraph 3 of Art. 8 of Federal Law No. 335-FZ of November 27, 2017, a foreign organization that is not registered with the tax authority in accordance with clause 46 of Art. 83 of the Tax Code of the Russian Federation (as amended in force before the entry into force of Law No. 335-FZ) and subject to registration with the tax authority on January 1, 2021 in accordance with clause 46 of Art. 83 of the Tax Code of the Russian Federation, had to submit an application for registration with the tax authority no later than February 15, 2021.

According to paragraph 2 of Art. 116 of the Tax Code of the Russian Federation, the conduct of activities by an organization without registering with the tax authority on the grounds provided for by the Tax Code of the Russian Federation entails a fine in the amount of 10% of the income received during the specified time as a result of such activity, but not less than 40 thousand rubles.

Thus, if the tax authority discovers that a foreign organization has evaded registration with the tax authority, such foreign entity may be brought to tax liability with the collection of the specified fine.

Article 46 83 of the Tax Code of the Russian Federation in the new (current) version establishes the obligation to submit to the tax authority an application for tax registration for a foreign organization and a foreign intermediary organization that sells services in electronic form specified in clause 1 of Art. 1742 Tax Code of the Russian Federation. This norm does not establish registration obligations for a foreign organization that sells services in electronic form through intermediaries - Russian organizations on the basis of agency agreements, commission agreements, agency agreements and other similar agreements.

According to paragraph 10 of Art. 1742 of the Tax Code of the Russian Federation as amended by Law No. 335-FZ when foreign organizations provide services in electronic form specified in paragraph 1 of this article, the place of sale of which is recognized as the territory of the Russian Federation (except for the provision of services through a separate division of a foreign organization located on the territory of the Russian Federation ), tax agents are Russian organizations, individual entrepreneurs or separate divisions of foreign organizations located on the territory of the Russian Federation - intermediaries registered with the tax authorities and carrying out business activities involving participation in settlements directly with the buyer on the basis of agency, commission, agency agreements or other similar agreements with foreign organizations providing such services.

These tax agents calculate and pay taxes in the manner prescribed by clause 5 of Art. 161 of the Tax Code of the Russian Federation, taking into account the features provided for in paragraph 4 of Art. 161 Tax Code of the Russian Federation.

According to paragraph 5 of Art. 161 of the Tax Code of the Russian Federation, when selling goods, transferring property rights, performing work, providing services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, organizations and individual entrepreneurs registered with the tax authorities as taxpayers are recognized as tax agents. carrying out entrepreneurial activities with participation in settlements on the basis of agency agreements, commission agreements or agency agreements with specified foreign persons, unless otherwise provided in clause 10 of Art. 1742 Tax Code of the Russian Federation. In this case, the tax base is determined by the tax agent as the cost of such goods (work, services), property rights, taking into account excise taxes (for excisable goods) and without including the amount of tax.

Thus, if a foreign organization sells services in electronic form through Russian intermediary organizations or separate divisions of a foreign organization located on the territory of the Russian Federation, on the basis of contracts of agency, commission, agency and other similar agreements, tax agents will be such Russian organizations - intermediaries.

Consequently, under these circumstances, a foreign organization does not have the obligation to submit an application for tax registration to the tax authorities of the Russian Federation.

Will the provision of services through Russian intermediaries from 2021 be a solution in accordance with clause 10 of Art. 1742 of the Tax Code of the Russian Federation, if the payment for services in 2021 provided under a direct agreement between the contractor and the customer must be transferred in 2021. ?

The moment of determining the tax base is the last day of the tax period in which the foreign organization’s account received payment (partial payment) for services in electronic form (clause 4 of Article 1742 of the Tax Code of the Russian Federation).

From January 1, 2021, VAT on services in electronic form is assessed at an estimated tax rate of 16.67% (clause 5 of Article 1742 of the Tax Code of the Russian Federation).

At the same time, the provisions of paragraph 5 of Art. 1742 of the Tax Code of the Russian Federation in the new edition applies to goods (work, services), property rights shipped (performed, rendered), transferred starting from January 1, 2019 (clause 4 of article 5 of Law No. 303-FZ [1]) .

Therefore, for services provided in 2021, the previous estimated tax rate of 15.25% applies.

The Federal Tax Service of Russia in clause 2.2 of letter No. SD-4−3/20 dated October 23, 2021 [email protected] “On the procedure for applying the VAT tax rate during the transition period” indicates that if, when foreign organizations provide services in electronic form, payment (partial payment) for these services was received starting from January 1, 2021, and services were provided in electronic form before January 1, 2021, then VAT is calculated at an estimated tax rate of 15.25%.

From these clarifications it follows that if services in electronic form were provided in 2021, but payment for these services was received starting from January 1, 2021, then VAT is calculated at an estimated rate of 15.25% and is paid by the foreign organization itself.

In addition, since the services have already been provided in 2021 on the basis of an agreement between a foreign organization and a company (i.e., without the participation of an intermediary), “involving” the intermediary organization in obligatory legal relations, under which the fulfillment of part of the obligations has already been carried out, in order to avoid The obligation to register a foreign organization for tax purposes, in our opinion, is impossible.

The Supreme Arbitration Court of the Russian Federation in paragraph 6 of the Review of the practice of resolving disputes under a commission agreement (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2004 No. 85) indicated that a transaction completed before the establishment of relations under a commission agreement cannot be recognized as concluded in execution of the principal's instructions.

At the same time, the tax can be paid by any third party on behalf of and at the expense of a foreign company (Clause 1, Article 45 of the Tax Code of the Russian Federation).

What is the purpose of introducing Article 1742 of the Tax Code of the Russian Federation and are there similar norms in other countries?

Article 1742 is included in the Tax Code of the Russian Federation by Federal Law of July 3, 2016 No. 244-FZ “On Amendments to Parts One and Two of the Tax Code of the Russian Federation.”

Within the meaning of the provisions set out in the Explanatory Note to the draft law, the inclusion of VAT rules for foreign organizations exercising access rights to databases, software, games, musical works, books, video products, etc. (hereinafter referred to as content) is due to the need to create equal conditions for Russian organizations that sell content and pay VAT on such sales, and foreign organizations whose prices for content do not include VAT. Under existing circumstances, it was more profitable for Russian consumers to purchase content from foreign companies. For the same reason, these services of Russian organizations became less attractive.

According to the information provided on the website of the European Commission [2], electronic services provided to citizens of European Union countries [3] are subject to VAT. If an electronic service is provided by a foreign organization registered in a non-EU country, the foreign organization must pay VAT at the rate of the buyer's country of registration (Article 59b of Directive No. 2006/112/EC of 28 November 2006) [4].

[1] Federal Law of August 3, 2021 No. 303-FZ “On Amendments to Certain Legislative Acts of the Russian Federation on Taxes and Fees.”

[2]
ec.europa.eu/taxation_customs/individuals/buying-goods-services-online-personal-use/buying-services/electronically-supplied-services_en
[3] ec.europa.eu/taxation_customs/sites/taxation/files /resources/documents/common/buying_online/electronically_supplied_services.pdf

[4]
ec.europa.eu/taxation_customs/business/vat/telecommunications-broadcasting-electronic-services/sites/mossportal/files/taxud-2013−1 228−02−01-pl-tra-00-pl.pdf