How to calculate VAT on the sale of property rights

VAT on assignment agreements (assignment of claims)

The agreements under consideration are becoming increasingly relevant today. But the taxation procedure for such agreements is not sufficiently regulated at the legal level.

Because of this, many unclear points remain regarding the rate, taxes on non-VAT transactions, filling out invoices, and others.

According to Article 155 of the Tax Code of the Russian Federation, tax (VAT) must be paid for the transfer or sale of property rights. Moreover, within the framework of the article, different situations of the assignment agreement are considered. But let’s look at everything in order, and start with the definition of the concept of assignment of a right of claim.

Tax consequences for the parties

Particular attention should be paid to the issue of tax accounting after signing the assignment agreement.
Depending on the type of debt, the application of tax requirements will differ. The debt arises under a loan agreement, an agreement with contractors or a bill of sale. For the debtor

There are no tax changes. It makes no difference to him who owns the right to the debt. When assigning a debt to another party, the debtor is not required to restore VAT, since this is not provided for by tax legislation (clause 3 of Article 170 of the Tax Code of the Russian Federation).

For the lender

Debt collection involves applying the principles of a conventional credit agreement. In accordance with Art. 149 (clauses 15, 26 clause 3) of tax legislation, VAT is not subject to accrual.

The situation of transferring rights to debt incurred during the sale of the company's products looks more complicated. If we look at the issue literally, the accrual of VAT seems justified, since we are talking about the transfer of property rights. Due to the fact that tax legislation (Article 155 of the Tax Code of the Russian Federation) does not indicate such a case, therefore there is no need to pay value added tax.

If we consider the issue from the perspective of the debt acquirer, then payment of the VAT amount included in the receivables implies the possibility of applying a deduction. To make a deduction, the owner of the right of claim provides the buyer with an invoice, and the crediting of the amount owed must occur before reporting to the tax office.

general information

The assignment of the right of claim is regulated by Art. 388, 389 and 390 of the Civil Code of the Russian Federation. These transactions are also called assignment agreements. Their essence lies in the transfer by the creditor of the right to claim the debt to another person.

The specific terminology of the parties is applied similarly to both the seller and the buyer in a purchase and sale transaction. The entity that originally owned the debt is the assignor, and the “buyer” is the assignee.

The reasons for the formation of debt are different. The subsequent calculation depends on this. The most common options include the following:

• The assignor is the supplier who shipped the goods or provided services with deferred payment.
• The debt formed after the transfer of an advance payment for subsequent delivery or provision of services is sold.
• The debt was created due to the transfer of credit.

Tax calculation for partial repayment of debt

The debtor has the right to send money to the assignee not at once, but in separate parts, and even in different tax periods. This point is not really regulated in the Tax Code. Therefore, two approaches can be used:

1. Use clause 2 of Article 155 of the Tax Code of the Russian Federation verbatim, and charge tax from the moment the amount exceeds the cost of obtaining the debt is received.

A similar situation will arise when the assignee purchased several debts and received only one of them in one tax period. But in this case, the application of the second approach is unlikely to please the regulatory authority, since the tax will be paid later.

At the same time, with the appropriate attitude, the taxpayer may well defend his position in court. Moreover, in judicial practice there were cases when assignees won the case, and the court recognized their ability to pay the tax once, regardless of how many debtors paid off their obligations.

Sale of debt by buyer

The buyer's receivables are formed when he makes an advance payment. Basically, they sell the right to return it, for example, if the contract is terminated. The refund of this payment is not subject to tax. Therefore, transactions under an assignment agreement should also not be subject to taxation.

But this is only in the case of the 1st sale. If the assignee wishes to resell the debt, he will have to pay tax for such an operation, in accordance with clause 2 of Article 155 of the Tax Code of the Russian Federation. The same will happen with subsequent operations on the resale of the corresponding obligation. This position was adhered to by the Supreme Arbitration Court of the Russian Federation in its Resolution No. 33 in 2014.

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

The exercise of the right to demand delivery is rare, since it will require finding a person who requires the same goods or services. But formally we are talking about property rights by agreement.

Therefore, tax authorities sometimes seek to charge tax on the full amount of the transaction based on clause 2 of Article 153 of the Tax Code of the Russian Federation. At the same time, when such cases came to trial, the courts generally did not support the tax authorities.

Assignment of debt between legal entities: grounds for registration and consequences

Concept Who benefits from the execution of a debt assignment agreement What are the legal grounds for an assignment agreement? Tax consequences

When carrying out business activities, situations may arise when one of the counterparties is not able to pay the other under the concluded agreement. In this case, is it possible, in exchange for money, to offer the right to claim funds from a third party with whom the debtor counterparty entered into an agreement earlier? We will talk about this in our material.

Concept

The Civil Code of the Russian Federation provides for the possibility of assigning the right to claim a debt under an agreement concluded with a third party in cases where this does not contradict the law. The process of changing persons in an obligation in legal language is called assignment and is regulated by Chapter. 24 Civil Code of the Russian Federation.

In some cases, debt transfer for legal entities is impossible due to legal provisions.

In particular, h. 7 tbsp. 448 of the Civil Code of the Russian Federation establishes that the parties to an agreement concluded as a result of bidding cannot be changed. Also, a prohibition on the assignment of debt may be contained in an agreement concluded between legal entities.

Who benefits?

In many situations, the execution of a debt assignment agreement between legal entities is beneficial for all parties to the transaction. In this case, the debtor gets the opportunity to get rid of his obligations without initiating enforcement proceedings against him. The creditor company, in turn, saves itself from the need to participate in lengthy legal proceedings, as a result of which it may not receive funds (especially in situations where the debtor is declared bankrupt). Moreover, if the creditor company establishes favorable conditions for the repayment of debt by the new debtor, then it can very soon wait for the fulfillment of obligations under the contract.

Often, a debt assignment agreement is concluded between large trading and logistics companies. They use the change of persons in the contract as a method of settlement.

Drawing up a debt assignment agreement

The assignment of rights to claim debt between legal entities is formalized in simple written form, and in cases where the agreement between companies was certified by a notary, in notarial form. This is a requirement. 389 of the Civil Code of the Russian Federation.

If a transaction completed by legal entities was registered by the state, then the agreement on the assignment of debt under it must also be registered.

The question of how to formalize the assignment of debt between legal entities is solved in two ways:

the right to claim the amount of debt passes to the new creditor by concluding a bilateral agreement between him and the previous creditor without the consent of the debtor, while the latter is notified of the change in persons, a tripartite agreement is concluded between the creditor and the two debtors. Tripartite agreement

Registration of the assignment of debt rights between legal entities by a tripartite agreement is the most preferable. In such cases, the terms of the transaction are known to all parties, as a result of which it is more likely to be able to avoid misunderstandings in the process of fulfilling obligations under the contract.

A tripartite debt assignment agreement between legal entities contains the following mandatory clauses:

“header”, which indicates the full names of all participants in the transaction, the subject of the agreement, which must be indicated as precisely as possible, the rights of the participants and their obligations, including the deadlines for their fulfillment, the amount of the debt (taking into account that it is possible to assign part of the debt between legal entities), liability of the parties to the transaction for failure to fulfill their obligations under the contract, details, seals and signatures of the parties. What are the legal grounds for an assignment agreement?

An assignment (assignment) agreement, including a tripartite one, is concluded in accordance with the provisions of Art. Art. 382-392 Civil Code of the Russian Federation. In addition to this agreement, the legal basis for transferring the right to claim a debt to a third party can be a provision of law.

If the assignment agreement is concluded only between two parties (creditors), then the debtor must be notified of the fact of transfer of his debt to a third party. A letter is sent to him regarding the assignment of debt between legal entities. Otherwise, the debtor, not knowing about the agreement concluded between the creditors, can pay the debt to the original creditor, and such an obligation will be considered fulfilled by force. 2 tbsp. 382 of the Civil Code of the Russian Federation.

Recognition of a debt assignment agreement as invalid is possible only in the case where the new creditor, knowingly knowing about the prohibition on debt transfer in the agreement, nevertheless entered into such an agreement.

The prohibition on assignment of the right of claim does not apply to cases where the rights of the creditor are sold during enforcement proceedings or bankruptcy proceedings of a legal entity.

Tax consequences

The tax consequences of concluding an agreement on the assignment of debt between legal entities will be different for each of the parties.

Debtor

For the debtor, concluding an assignment agreement does not have any tax consequences. The fact of transferring the debt in this way is not a basis for the restoration of VAT in accordance with art. 3 tbsp. 170 Tax Code of the Russian Federation.

The creditor who assigns the debt

With regard to a legal entity participating in a debt assignment transaction as a creditor, the situation is ambiguous. On the one hand, the transfer of property rights is subject to taxation. On the other hand, the determination of the tax base in such a situation is carried out according to 155 of the Tax Code of the Russian Federation, which does not contain instructions on how to calculate the tax upon assignment of rights. As judicial practice shows, failure to pay VAT in this case does not violate the norms of the Tax Code of the Russian Federation.

The creditor who accepts the debt

A legal entity that has received the right to claim a debt is obliged to pay VAT only if the debt was accrued under an agreement governing transactions subject to VAT: the sale of services and goods and the performance of work. In accordance with sp. 2 tbsp. 171 ip. 1 tbsp. 172 of the Tax Code of the Russian Federation, a legal entity that has accepted a debt and paid VAT on it can submit it for deduction if it receives an invoice from the previous creditor indicating the amount of the debt.

If you need to formalize the assignment of rights to claim a debt between legal entities, please contact the lawyers of our company. Our specialists have many years of experience in concluding assignment agreements, and this guarantees that all the nuances will be taken into account and the agreement will not contain errors. Call us by phone or leave your request on the website.

Assignment of loan debt

In accordance with paragraph 26, paragraph 3 of Art. 149 of the Tax Code of the Russian Federation, the sale of debts under these agreements is not taxed.

Although the article talks about both assignment and reassignment, tax authorities sometimes argue that the benefit applies only to the initial sale of debts.

It must be borne in mind that this provision applies only to loans that were issued in cash. If the loan was provided, for example, in goods, then tax will be levied on both the loan and the assignment agreement.

Exercise of the right to claim receivables

Regulatory regulation

Assignment of the right of claim (cession) is the transfer of a right owned on the basis of an obligation from one creditor to another (Article 382 of the Civil Code of the Russian Federation).

Read more Change of persons in an obligation. Legal basis

BOO. The creditor (assignor) has the following rights recognized on the date of transfer:

• other income - in the amount for which the right was assigned (clause 7, 16 PBU 9/99);
• other expenses - in the amount of the assigned debt (clause 11, clause 14.1 of PBU 10/99).

WELL. When assigning the right of claim after the expiration of the payment period under the contract, the assignor recognizes on the date of transfer of the right (clause 2.1, clause 1, article 268 of the Tax Code of the Russian Federation):

• proceeds from the sale in the amount for which the right was assigned;
• expenses from sales in the amount of the assigned debt.

The loss upon assignment of the right to claim a debt to a third party before the due date of payment is normalized. It is recognized in an amount not exceeding the interest that the creditor would have paid if he had not sold the debt, but had taken the proceeds from the sale of the debt on credit. The period for which interest is calculated is from the date of assignment to the payment deadline (clause 1 of Article 279 of the Tax Code of the Russian Federation).

Interest is calculated based on:

• the maximum interest rate established for the corresponding type of currency (clause 1.2 of Article 269 of the Tax Code of the Russian Federation);
• interest rate confirmed in accordance with the methods established in section V.1 of the Tax Code of the Russian Federation.

The method for determining the interest rate must be fixed in the accounting policy.

VAT. The assignor pays VAT on the positive difference between the sales price and the amount of debt (clause 1 of Article 155 of the Tax Code of the Russian Federation).

The VAT rate for the exercise of the right of claim is 20%, since property rights are not listed as taxable at preferential rates (Article 164 of the Tax Code of the Russian Federation).

The implementation of the right of claim arising from a loan (credit) agreement is not subject to VAT (clause 26, clause 3, article 149 of the Tax Code of the Russian Federation).

Even in the absence of a VAT base (if sold at a loss), the taxpayer is obliged to reflect in the sales book an invoice for the sale of the right of claim with a tax base and VAT amount equal to zero (Letter of the Ministry of Finance of the Russian Federation dated November 5, 2019 N 03-07-11/84894 ).

Accounting in 1C

Reflect the implementation of the right of claim with the document Sales (act, invoice) transaction type Services (act) in the Sales - Sales (acts, invoices) section - button Sales - Services (act).

Indicate in the header of the document:

• Counterparty - the name of the counterparty purchasing the debt is selected from the Counterparties directory;
• Agreement - the name of the agreement with the counterparty, selected from the Agreements directory;
• Settlements : Account for accounting of settlements with the counterparty and Account for accounting of settlements for advances - 76.09 “Other settlements with various debtors and creditors.”

Fill in the table section:

• Nomenclature - a position from the Nomenclature directory, for example, Right to claim debt : Type of nomenclature - Services .

Postings according to the document

The document generates the posting:

• Dt 76.09 Kt 91.01 - proceeds from the sale of the right of claim.

To ensure that the sales amount is reflected in the sales book only in column 13b PDF (since there is no taxable base), check the Manual adjustment checkbox (allows editing of document movements) and edit the data on the VAT Sales the Amount without VAT column to zero .

How to fill out an invoice

This document is drawn up with specific features, depending on the party to the contract who is involved in this.

The invoice is issued by the assignor regardless of the sales amount. In case of loss or sale at par value, VAT will be equal to 0.

When making a profit, the corresponding amount must be reflected, both the tax base (in column 5) and the calculated VAT (in column 7). An exception is the situation of selling a loan of money or a credit obligation.

Then the invoice will not be needed at all, since it is not needed when exempt from the tax burden. This is stated in paragraph 1, paragraph 3, Article 169 of the Tax Code of the Russian Federation.

The assignee's tax base appears when the debt is repaid. Then they are given an invoice indicating the difference between the funds received from the debtor and the costs of purchasing the debt (in column 7). The amount of the tax fee is indicated in column 8. It is calculated in the same way as for the assignor.

How to take into account all the details when calculating tax and avoid problems with the tax authorities

VAT is one of the main fees, with the help of which a large part of the state budget is formed. But it is a significant burden for taxpayers. Naturally, businessmen strive in different ways to reduce the size of payments under it. Moreover, the methods used are not always legal.

A significant part of the violations that are detected by the tax authorities relate specifically to VAT. VAT declarations are subject to special scrutiny.

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

It is rare that desk audits pass without any complaints for a taxpayer. Basically, a businessman has to give a lot of explanations and provide a lot of documents until the tax authorities “calm down.”

Any transactions of an unusual nature will certainly arouse increased interest among tax authorities during an audit. These include assignment agreements, especially for an amount that is an order of magnitude lower than the nominal value.

Therefore, the best opportunity to pass the audit painlessly is to pay the tax at full cost and use only legal methods to reduce its base.

Controlling authorities are constantly evolving, so schemes to reduce the VAT base are constantly being reduced. In this regard, the tax authorities are assisted by banking organizations, which are guided by Federal Law No. 115, as well as explanatory notes by the Central Bank of the Russian Federation.

There are legal methods to reduce the tax burden, but this should be done by specialists who are well versed in this issue. Otherwise, it will most likely not be possible to avoid problems during the check.

The agreement in question represents the resale of receivables formed for various reasons. Such a debt can be formed after the shipment of goods, after the transfer of an advance payment, or after the issuance of a loan.

VAT is calculated differently depending on the type of debt, as well as the profit or lack thereof resulting from the relevant transaction.

For advice on assignment of claims, watch this video:

The right of claim arises from the contract for the sale of goods, which are subject to VAT at a rate of 10%. Is it necessary to indicate the value of the assigned right, including VAT, in the assignment agreement? If so, at what rate should VAT be charged on the assignment of the right of claim by the original creditor? On what amount is VAT charged by the assignor: on the entire amount of proceeds from the assignment of the right of claim or on the amount of income?

On this issue we take the following position:

In this situation, VAT should not be charged.

However, given the position of the regulatory authorities, it is possible that you will have to prove your case in court.

If an organization decides to pay VAT, then the amount of tax should be calculated from the entire value of the transferred property right at a rate of 18% and highlighted in the assignment agreement.

In accordance with civil legislation, property rights (including the right to claim) are the object of civil rights along with things, money, securities and other property (Article 128 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 382 of the Civil Code of the Russian Federation, the right (claim) belonging to the creditor (assignor) on the basis of an obligation may be transferred by him to another person (assignee) under a transaction (assignment of the claim) or transferred to another person on the basis of law.

According to paragraphs. 1 clause 1 art. 146 of the Tax Code of the Russian Federation, the object of VAT taxation is transactions on the sale of goods (work, services) on the territory of the Russian Federation, including the sale of collateral and the transfer of goods (results of work performed, provision of services) under an agreement on the provision of compensation or novation, as well as the transfer of property rights .

The specifics of calculating VAT when transferring property rights are given in Art. 155 Tax Code of the Russian Federation.

Clause 1 of Art. 155 of the Tax Code of the Russian Federation establishes that when assigning a monetary claim arising from a contract for the sale of goods (works, services), transactions for the sale of which are subject to taxation, or when transferring the specified claim to another person on the basis of law, the tax base for transactions for the sale of these goods (works, services) services) is determined in the manner provided for in Art.

154 Tax Code of the Russian Federation.

Based on the established judicial practice, we can conclude that until recently the tax authorities were of the view that if clause 1 of Art.

155 of the Tax Code of the Russian Federation contains a reference norm to Art. 154 of the Tax Code of the Russian Federation, and p.

1 tbsp. 154 of the Tax Code of the Russian Federation, in turn, establishes that the tax base when a taxpayer sells goods (work, services) is determined as the cost of these goods (work, services), calculated based on the price specified by the parties to the transaction, then upon the initial assignment of the right to claim VAT should be calculated from the entire value of the transferred property right.

See also letter of the Federal Tax Service of Russia for Moscow dated 08/04/2009 N 16-15/079709.

In paragraph 2 of Art. 155 of the Tax Code of the Russian Federation we are talking about the procedure for determining the tax base by a new creditor when independently collecting a debt from a debtor (buyer of goods, works, services) or when assigning this claim to the next creditor, that is, clause 2 of Art.

155 of the Tax Code of the Russian Federation applies only to subsequent, and not primary assignment of a monetary claim. It is in this case that the tax base is determined as the difference between the amount of income received by the new creditor upon the subsequent assignment of the claim and the amount of expenses for the acquisition of the specified claim.

In the situation under consideration, your organization makes the initial assignment of the right of claim, therefore it has no right to calculate the tax base in this way (from the difference).

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

Clauses 3, 4 and 5 of Art. 155, requirements also do not apply to transactions involving the primary assignment of rights. It turns out that Art. 155 of the Tax Code of the Russian Federation, the procedure for determining the tax base for VAT upon the initial assignment of the right of claim is not established.

In other words, the tax legislation does not contain a specific rule approving the procedure for determining the tax base for VAT upon assignment of a monetary claim by the original creditor. In this regard, we believe that during the initial assignment of the right to claim a debt for goods supplied, the VAT tax base in relation to the transaction for the initial assignment of the right of claim is not determined, therefore VAT on such a transaction is not charged by the original creditor and is not presented to the new creditor.

The amount of VAT on goods sold as of the date of assignment of the right of claim (work, services) has already been calculated and paid to the budget (clause 1 of Art.

155, paragraph 1, art.

167 of the Tax Code of the Russian Federation), therefore, the assignor, when assigning the right to claim his receivables, should not re-charge the same tax.

The interpretation of the provisions of Article 153 of the Tax Code of the Russian Federation proposed by the tax authority is unacceptable, since in accordance with paragraph 7 of Art. 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer.

Thus, at present, it is not possible to unambiguously answer the question: is it necessary to calculate VAT upon the initial assignment of the right of claim. In our opinion, in such a situation the tax base for VAT is not determined.

However, taking into account the opposite position of the regulatory authorities, we do not rule out that if the organization does not charge VAT when assigning the right of claim, this decision may become the subject of legal proceedings.

If an organization decides to follow the position of the regulatory authorities and charge VAT when assigning the right of claim, then the tax must be calculated at a rate of 18% (clause 3 of Article 164 of the Tax Code of the Russian Federation).

Answer prepared by: Expert of the Legal Consulting Service GARANT Lazukova Ekaterina

Response quality control: Reviewer of the Legal Consulting Service GARANT Monaco Olga

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

Formal requirements for transactions

Whatever the goals and objectives of the transaction, it must meet the requirements of the law. Assignment (assignment) of a claim is an assignment agreement between legal entities, which is concluded according to the rules provided for in Art. 382-390 Civil Code of the Russian Federation. In everything that is not regulated or permitted by law, the parties have the right to be guided by the agreements reached.

Assignment is an agreement under which the assignor (the original creditor in the obligation) transfers his right to demand the fulfillment of the obligation to the assignee (new creditor), and the latter, accordingly, acquires such a right. In everyday life, such transactions are usually called assignment (assignment) of debt or its purchase and sale, but formally, no matter what you call it, it will still be an assignment.

Note:

1. The assignment is formalized by a written agreement. It can be multilateral - depending on the number of persons actually participating in the transaction. But in most cases there are two participants - the assignor and the assignee. If the main agreement from which the debt arose was drawn up by a notary or required state registration, the assignment agreement must be drawn up in the same way and undergo registration steps.
2. In addition to the contract, it is customary to draw up an act of acceptance and transfer of documentation for the debt, as well as to provide in advance a form for notifying the debtor about the transaction. The obligation to notify the debtor, as a rule, is assigned to the new creditor - this is his interest in order to avoid the risk of the debtor fulfilling the obligation on the same terms and to the original creditor.
3. You can sell debt that will arise in the future. And this will not be a preliminary agreement - it will be a regular assignment agreement. However, in this case, it is necessary to define the subject of the assignment so that it can be identified at the time of the actual transfer of the debt.
4. You can assign only part of the debt. In this case, there are no restrictions when it comes to monetary debt. In other cases, partial sale of debt is possible provided that the obligation can be divided and its partial assignment will not significantly burden the debtor.
5. A joint creditor may sell a debt only with the consent of other creditors, unless otherwise provided by agreement of creditors.
6. The debtor's consent to the transaction is not required, but the debt cannot be transferred under conditions that worsen the debtor's position. In addition, if the transaction took place without the consent of the debtor and entailed costs associated with the transfer of rights, then the debtor has the right to demand compensation for such costs from the previous and new creditor jointly and severally.
7. In commercial relations, assignment is a compensated transaction. Therefore, the contract must specify in what amount and order the remuneration will be paid - a kind of value of the debt as an asset. In order for the transaction not to be regarded by tax authorities as a gift, which is prohibited between legal entities, it is necessary to reflect in the contract the compensated nature of the transaction, providing for some reasonable remuneration.
8. From June 1, 2021, paragraph 2 of clause 2 of Art. is excluded in full. 382 of the Civil Code of the Russian Federation. This means that the ban on the sale of debt provided for in the main agreement will no longer be an unconditional basis for invalidating the assignment. However, this rule is applied together with the provisions of paragraph 4 of Art. 388 of the Civil Code of the Russian Federation, which will also be in effect in the new edition. If we are talking about the sale of a non-monetary debt and the agreement from which it arises provides for a prohibition of assignment, the assignment can be declared invalid at the request of the debtor, but only if it is proven that the new creditor knew (should have known) about such a prohibition.
9. The text of Article 386 of the Civil Code of the Russian Federation also changes from June 1, 2021. Now the debtor, having received notice of assignment, is obliged to inform the new creditor of the grounds for objecting to the claims. Otherwise, he will not be able to rely on such grounds. Previously, this was only the right of the debtor.
10. Another change concerns the regulation of the liability of the parties under the assignment agreement. Clause 1 of Article 390 of the Civil Code of the Russian Federation will be supplemented with a new paragraph. Previously, the original creditor was unconditionally liable for the invalidity of the sold claim. From June 1, 2021, it is possible to resolve this issue in the assignment agreement and completely exclude such liability. But this requires two conditions: (1) the execution of the contract to which the debt is associated is conditioned by the entrepreneurial activities of the parties; (2) the possible invalidity of the claim for repayment of the debt is caused by circumstances that the original creditor did not know (could not know) or about which he informed the new creditor.

contract for assignment of claim rights

Obligation to pay VAT

The only exceptions are transactions for the assignment (assignment, acquisition) of the rights (claims) of the creditor under obligations arising from agreements for the provision of loans in cash and (or) credit agreements, as well as for the fulfillment by the borrower of obligations to each new creditor under the original agreement underlying the basis of the assignment agreement. According to paragraphs.

26 clause 3 art.

149 of the Tax Code of the Russian Federation, these transactions are not subject to taxation (exempt from taxation).

In accordance with paragraph 2 of Article 155 of the Tax Code of the Russian Federation, when the debtor repays his obligation, the tax base of the assignee is determined as the difference between the amount of income received from the debtor and the amount spent on the acquisition of a monetary claim (if this difference is negative or equal to zero, the tax is not paid).

On the date of repayment by the debtor of the monetary obligation in 2021, the tax is calculated at the rate of 18/118 (clause 4 of article 164, clause 8 of art.

167 Tax Code of the Russian Federation

).

For example, a monetary claim in the amount of 100 rubles. purchased for 30 rubles. The debtor transferred 100 rubles. to the assignee's account. Accordingly, the tax base for VAT will be 70 rubles. and VAT - 10.68 (70*18/118)

In a situation where the debt is repaid in installments, the procedure for determining the tax base for VAT is not established by the norms of the Tax Code of the Russian Federation.

We were unable to find official explanations from the Ministry of Finance and the Federal Tax Service of the Russian Federation on this issue. However, in practice, the tax authorities insist that the tax base for VAT should be determined as the excess of the amount of income in the form of a partial payment received from the debtor over the amount of expenses for the acquisition of a monetary claim in a part proportional to the amount of this income.

Considering that the norms of clause 2 of Article 155 of the Tax Code of the Russian Federation are similar to the norms of clause 3 of Art. 279, ch. 25 of the Tax Code of the Russian Federation, the tax base for VAT in the event of partial repayment by the debtor of its obligations can be determined in the same manner as is applied for profit tax purposes when applying the accrual method.

If you follow the official position, then VAT should be calculated as follows. For example, a monetary claim in the amount of 100 rubles. purchased for 30 rubles. The debtor transferred 20 rubles. to the assignee's account. Accordingly, the tax base for VAT will be 14 rubles. ( (100-30)*(20/100) or 20 - (30*20/100)), and VAT - 2.14 (14*18/118).

Expert opinion

Makarov Igor Tarasovich

Legal consultant with 8 years of experience. Specialization: criminal law. Extensive experience in document examination.

There is an opinion that as long as the debtor’s payment does not exceed the cost of acquiring the right of claim, the assignee does not have a VAT tax base. Then in our example, upon receipt of partial payment in the amount of 20 rubles.

There is no tax base (20 rubles - 30 rubles). But this point of view will most likely have to be defended in court.

An invoice issued “for yourself” should be registered in the sales book (clause 3 of the Rules for maintaining the sales book).

Transaction code - 14. Note that KVO 14 is used to reflect transactions on the transfer of property rights listed in subparagraphs 1 - 4 of Article 155 of the Tax Code of the Russian Federation, i.e.

formally, incl. when calculating the tax base when extinguishing the right of claim.

But the Federal Tax Service of the Russian Federation explains that when recording an invoice entry with KVO 14 in the sales book, the following must be indicated: invoice number, invoice date, name and INN/KPP of the buyer , the value of property rights on the invoice with VAT and excluding VAT, VAT amount (See commentary to code 14 in Letter of the Federal Tax Service of Russia dated September 20, 2016 N SD-4-3/ [email protected] “On sending information for use in work”).

To fulfill this requirement, in our opinion, you can indicate the details of your organization as the buyer’s details. At the same time, if there are no buyer details in the sales book, you can specify transaction code 26; this code is indicated when selling goods (work, services) to VAT evaders in the event that invoices are not issued to them.

The Tax Code of the Russian Federation does not provide for liability for incorrect indication of transaction codes.

In column 3 of section 9 of the VAT return, lines 010 - 220 reflect the data indicated, respectively, in columns 2 - 8, 10 - 19 of the sales book. Indicators on lines 010 - 220 are filled in in an order similar to the order in which indicators are filled out in columns 2 - 8, 10 - 19 of the sales book (p.

47.4 Procedure for filling out a tax return for value added tax, approved. By order of the Federal Tax Service of Russia dated October 29, 2014 N ММВ-7-3/ [email protected] ).

• in line 200 - the amount of VAT on the invoice at a rate of 18% from column 17 of the sales book - 1525 rubles. (VAT).

Changes to clause 3 of Article 164 of the Tax Code of the Russian Federation (increase in VAT by 2%, i.e. from 18% to 20%) come into force on January 1, 2021 (clause 3 of Article 5 of the Federal Law of 08/03/2018 N And when calculating VAT on the date of repayment of the debt, the assignee must calculate VAT at a rate inverse to the rate specified in clause 3 of Article 164 of the Tax Code of the Russian Federation (clause 4 of Article 164 of the Tax Code of the Russian Federation).

Thus, in our opinion, if the VAT tax base arises on the debt repayment date after 01/01/2020, the assignee (your organization) should apply the VAT rate of 20/120

Taxation during assignment: nuances and examples

The assignor (original creditor) applying the general taxation system (GTS) 1. VAT, when assigning the right of claim arising from arrears in payment for goods (works, services):

The transfer of property rights is an independent transaction, different from the initial transaction for the sale of goods (works, services) and, accordingly, is an independent object of taxation, in accordance with the provisions of paragraph 1 of Art. 146 of the Tax Code of the Russian Federation.

When assigning the right of claim, the assignor does not have the obligation to calculate and pay VAT, unless the right of claim is assigned to the assignee at a cost exceeding the amount of the assigned monetary claim. These provisions are enshrined in Art. 155 Tax Code of the Russian Federation. That is, if a positive difference arises between the amount of income from the assignment of the right of claim and the amount of the assigned claim, then this difference is the tax base for calculating VAT. If the difference is negative or equal to zero, then no tax is paid.

For example: An assignor who has receivables for shipped goods in the amount of RUB 118,000. (including VAT 18,000 rubles) assigned the claim for payment to the assignee for 100,000 rubles. The tax base for VAT on the transaction = the amount received from the new creditor without VAT minus the amount of the assigned debt with VAT. Since in this case the tax base is less than zero (RUB 100,000 - RUB 118,000), VAT is not charged.

If you change the conditions of the example, according to which the assignment of the right of claim will be 130,000 rubles, then the tax base for the transaction will be positive (130,000 rubles - 118,000 rubles) and in this case it will be necessary to charge VAT at a rate of 18%

The second situation, in my opinion, is unlikely, since usually debts are sold at best at the nominal value of existing debt, but mostly still at a loss.

Please note that the very fact of assignment of the right of claim does not in any way affect the VAT on the original transaction, i.e. this VAT should not be restored, nor taken as an offset, etc. This is due to the provisions of paragraph 1 of Art. 154 Tax Code of the Russian Federation, paragraphs. 1 clause 1 art. 167 of the Tax Code of the Russian Federation, according to which VAT on the sale of goods (work, services) is calculated based on the contract prices for the shipment of goods (work, services).

2. VAT, upon assignment of the right of claim arising from the debt under the loan agreement: in accordance with the provisions of paragraphs. 26 clause 3 art. 149 of the Tax Code of the Russian Federation, transactions involving the assignment of claims under loan agreements are not subject to VAT.

Income tax

1. Income tax on the assignment of a claim arising from both arrears in payment for goods (works, services) and on the assignment of a claim arising from a debt under a loan agreement is calculated in the same way.

Let's consider the option when an organization uses the accrual method, the most common among Russian enterprises.

According to the provisions of paragraph 5 of Art. 271 of the Tax Code of the Russian Federation on the date of assignment, the amount due to be received from the assignee is recognized as income.

At the same time, in accordance with the provisions of paragraphs. 2.1 clause 1 art. 268, paragraph 1, art. 279 of the Tax Code of the Russian Federation, the amount of the assigned debt is included in expenses, and if the amount due from the assignee is less than the assigned debt, then the difference is recognized as a loss to the taxpayer.

Please note that the amount of loss is determined taking into account the provisions of Art. 279 of the Tax Code of the Russian Federation and depends on whether, on the date of assignment of the right of claim, the payment deadline established by the original contract for the supply of goods (work, services) has arrived or not.

• if the payment deadline has already arrived, then the loss is included in non-operating expenses in full.
• if the payment deadline has not yet arrived, then non-operating expenses can only be taken into account in an amount that does not exceed the maximum loss amount calculated at the taxpayer’s option either based on the methods used in controlled transactions or based on the key rate of the Central Bank. At the same time, the procedure for accounting for losses in this case should be fixed in the accounting policy, and if the maximum amount of loss is determined based on the key rate, then it should be indicated that the maximum amount of loss is determined as the amount of interest on debt obligations, based on the maximum rate established by paragraphs. 1. clause 1.2 art. 269 ​​of the Tax Code of the Russian Federation.

For example: An assignor who has receivables for shipped goods in the amount of RUB 118,000. (including VAT 18,000 rubles) assigned the claim for payment to the assignee for 100,000 rubles. January 31, 2021 Payment due date under the original agreement from the debtor February 8, 2021 The taxpayer decided to calculate the limit based on the key rate of the Central Bank of the Russian Federation on the date of assignment - 7.75%

The loss from the assignment is 18,000 rubles. (RUB 100,000 - RUB 118,000)

The maximum amount of loss that can be taken into account in expenses = the amount receivable from the new creditor without VAT multiplied by the key rate increased by 1.25 and calculated by the number of days from the date of assignment to the date of payment fixed in the original agreement = (RUB 100,000 x 7.75% x 1.25 x 8 days / 365 days) = 212.33 rubles.

Since the loss (18,000 rubles) exceeds the maximum loss amount (212.33 rubles), it is possible to take into account only 212.33 rubles in non-operating expenses.

VAT in the purpose of payment when paying off a debt

Debtors pay off their obligations to your organization in the manner prescribed in the agreement with the original creditor

Those. if debtors pay a fee for services that were subject to VAT from the original creditor, then in the purpose of payment they will indicate, incl.

the amount of VAT that they transfer as part of the payment. But this information is not reflected in the calculation of VAT for the assignee who acquired the right of claim against the debtor.

VAT is calculated in the manner provided above.

So, according to paragraph 1 of Art.

382 of the Civil Code of the Russian Federation, the right (claim) belonging to the creditor (assignor) on the basis of an obligation may be transferred by him to another person (assignee) under a transaction (assignment of the claim) or transferred to another person on the basis of law. At the same time, Art.

384 of the Civil Code of the Russian Federation establishes that, unless otherwise provided by law or agreement, the right of the original creditor passes to the new creditor to the extent and on the conditions that existed at the time of transfer of the right.

Thus, the new creditor receives the claim in the form in which it existed at the time of its transfer, including VAT.

The conclusion of an agreement for the assignment of the right of claim does not lead to the termination of the contract under which the right of claim has been assigned.

Therefore, the agreement for the assignment of the right of claim concerns the debtor only in terms of changing one creditor to another (the composition of the obligation does not change).

The Civil Code allows any company with receivables to transfer the right to collect it to third parties. In conditions of financial instability and non-payments, an increasing number of companies are using this right. In such cases, the accountant is concerned about the tax consequences of selling the debt.

Tax base for transfer of property rights

The specifics of determining the tax base when transferring property rights are regulated by the provisions of Article 155 of the Tax Code of the Russian Federation.
When assigning a monetary claim* arising from a contract for the sale of goods, work or services subject to VAT (not specified in Article 149 of the Tax Code of the Russian Federation), the tax base for sales of these goods (work, services) is determined:

• in the manner prescribed by Article 154 of the Tax Code of the Russian Federation, unless otherwise provided by this paragraph.

*Or when the specified claim is transferred to another person on the basis of law.