VAT on transactions with computer programs and databases

BASIC: taking into account related expenses when calculating income tax

Please take into account associated costs associated with the conclusion and execution of a license agreement when calculating income tax as part of other production expenses, provided that the obligation to pay them is not assigned to the licensor under the agreement (clause 1 of Article 252 of the Tax Code of the Russian Federation).

The order of their accounting depends on:

• on the type of expenses;

• method of calculating income tax.

This follows from paragraph 1 of Article 252, Article 272 and paragraph 3 of Article 273 of the Tax Code of the Russian Federation.

Depending on the type of expenses, their tax accounting may have specific features.

In particular, take into account notarial expenses for certification of documents differently, depending on where and by whom the notarial actions were performed (Article 22 of the Fundamentals of the Legislation of the Russian Federation on Notaries, subparagraph 16, paragraph 1, Article 264 and paragraph 39, Article 270 of the Tax Code of the Russian Federation).

The costs of paying the state fee for registering a license agreement for a computer program, database or integrated circuit topology should be taken into account in full as part of other expenses of the organization as a fee established by law (subclause 1, clause 1, article 264, clause 10, article 13 and subparagraph 4, paragraph 1, article 333.30 of the Tax Code of the Russian Federation).

The amount of patent and other fees for registration of licensing agreements for other types of intellectual property is established by the Regulations approved by Decree of the Government of the Russian Federation of December 10, 2008 No. 941. Take such fees into account when calculating income tax as other expenses associated with production and (or) sales (Subclause 49, Clause 1, Article 264 of the Tax Code of the Russian Federation). The fact is that they do not relate to taxes and fees (Articles 13–15 of the Tax Code of the Russian Federation).

The date of recognition of expenses associated with obtaining rights under a license agreement is determined depending on the method that the organization uses when calculating income tax.

If an organization uses the cash method, recognize expenses as they are paid (clause 3 of Article 273 of the Tax Code of the Russian Federation).

When using the accrual method, take into account the costs in the period to which they relate (paragraph 1, clause 1, article 272 of the Tax Code of the Russian Federation).

An example of how transactions to obtain a non-exclusive right to a trademark under a license agreement are reflected in tax accounting. The organization applies a general taxation system

In September, Torgovaya LLC (licensor) entered into a license agreement with Alpha LLC (licensee) for the right to use the Hermes trademark. The duration of the agreement is three years from the date of entry into force. The agreement comes into force from the moment of its state registration. Registration and payment of the fee for registering the agreement is the responsibility of the licensee.

The license agreement provides for a one-time remuneration to the licensor in the form of a one-time (lump sum) payment in the amount of 590,000 rubles. (including VAT - 90,000 rubles) after registration of the agreement.

In September, Alpha paid a fee of 10,000 rubles. for registration of the agreement.

The agreement was registered in October. Upon the entry into force of the agreement and the transfer of non-exclusive rights, the parties drew up an act of acceptance and transfer of non-exclusive rights to intellectual property.

Alpha calculates income tax on an accrual basis on a monthly basis.

In tax accounting, an organization distributes ongoing expenses in proportion to the number of days falling within the period to which such expenses relate.

When calculating income tax for October, Alpha’s accountant took into account part of the expenses:

• fees for registration of a license agreement in the amount of 128 rubles. (RUB 10,000: (366 days + 365 days + 365 days) × 14 days);
• one-time (lump sum) payment in the amount of 6387 rubles. (RUB 500,000: (366 days + 365 days + 365 days) × 14 days).

“Input” VAT related to a one-time (lump sum) payment in the amount of 90,000 rubles. accepted for deduction after signing the act of acceptance and transfer of the non-exclusive right to intellectual property.

BASIS: VAT

Input VAT related to license payments and expenses associated with the conclusion of a license agreement are deductible at a time if an invoice is available and other mandatory conditions are met (clause 1 of Article 172 of the Tax Code of the Russian Federation).

If an organization has received an invoice with an allocated amount of VAT on license payments that are not subject to this tax, do not apply the deduction (clause 2 of Article 169 of the Tax Code of the Russian Federation). For more information about this, as well as about the arguments that will allow the licensee to recover the “input” tax, see Under what conditions can input VAT be deducted.

To check whether the licensor issued an invoice correctly, use the table.

Situation: will the licensee be a tax agent for VAT on payments under a license agreement concluded with a foreign licensor organization that is not registered in Russia?

An organization is required to withhold and transfer tax to the budget only if license payments are subject to VAT.

Thus, the answer to this question depends on what type of intellectual property the organization receives.

Regardless of the applied taxation regime, an organization that transfers license payments to a foreign licensor organization that is not registered in Russia is a tax agent for VAT (clause 1 of Article 161 of the Tax Code of the Russian Federation).

However, the organization is obliged to withhold and transfer tax to the budget only if license payments are subject to VAT. If license payments are not subject to VAT, there is no need to withhold this tax from them. This procedure follows from paragraph 2 of Article 161 of the Tax Code of the Russian Federation.

License payments are subject to VAT or not subject to this tax, depending on the type of intellectual property, the right to use which is transferred (subclause 1, clause 1, article 146 and subclause 26, clause 2, article 149 of the Tax Code of the Russian Federation). To determine this, see the table.

For information on the specifics of VAT withholding from license payments depending on the moment of conclusion of the license agreement, see Who is recognized as a tax agent for VAT.

Banks' comments

VTB representatives believe that the consequence of the abolition of zero VAT will be a significant increase in the cost of software for banks, which is already a large expense item. “The cancellation of the benefit is premature, and it will really have a negative impact on the banking sector,” bank employees told Kommersant.

In the idea of ​​the Ministry of Telecom and Mass Communications, representatives of Tinkoff Bank saw a potential cause of significant losses for the banking business. They emphasized that the abolition of preferential VAT will be carried out without taking into account modern market realities, and cited as an example the fact that banks have in many ways become IT companies, although they cannot claim benefits in the IT industry.

The Settlement Non-Bank Credit Organization (RNCO) “Payment Center” believes that the abolition of benefits will be followed by a decrease in the volume of software purchases made by banks. This opinion was expressed by member of the board of directors of RNKO Alexander Pogudin , adding that the consequence of this will be a reduction in the income of IT companies.

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Otkritie Bank board member Sergei Rusanov called it strange that “IT initiatives, which should be aimed at motivating technology development, underestimate this motivation for a large proportion of consumers, thereby narrowing the market.” Deputy General Director of the Qiwi group Maria Shevchenko called the initiative of the Ministry of Telecom and Mass Communications “critical for banks, if we consider it in conjunction with the initiative to switch banks to using Russian software in accordance with the Presidential Decree.”

simplified tax system

If an organization pays a single tax on the difference between income and expenses, then take into account the costs associated with the acquisition of rights under a license agreement when calculating the single tax, provided that they are listed in Article 346.16 of the Tax Code of the Russian Federation.

Consider the licensor's remuneration in the form of periodic (current) payments as expenses, regardless of the type of intellectual property used (subclause 32, clause 1, article 346.16 of the Tax Code of the Russian Federation).

A one-time (fixed, lump-sum) payment can be taken into account when calculating the single tax only for certain types of intellectual property: computer programs and databases, topologies of integrated circuits, inventions, utility models and industrial designs, trade secrets (know-how) (subclause 2.1 p. 1 Article 346.16 of the Tax Code of the Russian Federation). For more information about which license payments are taken into account during simplification and which are not and on what basis, see the table.

Other costs associated with obtaining rights under a license agreement should be taken into account when calculating the single tax, provided that they are listed in Article 346.16 of the Tax Code of the Russian Federation.

However, please note that some of them can be recognized only if the requirements provided for them by Chapter 25 of the Tax Code of the Russian Federation are met. In particular, this applies to notary expenses (subclause 4, clause 1 and clause 2, article 346.16 of the Tax Code of the Russian Federation).

State fees for registration of licensing agreements for any type of intellectual property can be taken into account when calculating the single tax (subclause 22, clause 1, article 346.16 of the Tax Code of the Russian Federation).

However, do not take into account other fees associated with state registration of a license agreement when calculating the single tax. Such expenses are not mentioned in Article 346.16 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated April 22, 2010 No. 03-11-06/2/66).

Do not deduct input VAT related to the listed license payments. Include it in expenses when calculating the single tax. Provided that the amount of the license fee, to which VAT applies, is taken into account in expenses. This procedure follows from subparagraph 8 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation.

Consider expenses as they are paid (clause 2 of Article 346.17 of the Tax Code of the Russian Federation).

If an organization pays a single tax on income, then license payments for acquiring the right to use intellectual property will not affect taxation. Since with such a taxation object no expenses are taken into account. This procedure is established by paragraph 1 of Article 346.18 of the Tax Code of the Russian Federation.

An example of accounting for expenses in the form of license payments for the acquired right to use a trademark when calculating a single tax. The organization applies simplification

Torgovaya LLC (licensor) entered into a license agreement with Alpha LLC (licensee) for the right to use the Hermes trademark. The duration of the agreement is three years from the date of entry into force.

The license agreement provides for a one-time remuneration to the licensor in the form of a one-time (lump sum) payment in the amount of 590,000 rubles. (including VAT - 90,000 rubles), as well as periodic license payments in the amount of 5,900 rubles. (including VAT - 900 rubles) starting from the month following the month of conclusion of the contract.

The agreement comes into force from the moment of its state registration. The agreement was registered on January 14. Upon the entry into force of the agreement and the transfer of non-exclusive rights, the parties drew up an act of acceptance and transfer of non-exclusive rights to intellectual property. On the same day, Alpha transferred the lump sum payment.

On February 9 and March 10, Alpha transferred periodic license payments in full to Hermes.

"Alpha" calculates a single tax on the difference between income and expenses.

Alpha's accountant did not include the amount of a one-time (lump sum) payment in the amount of 500,000 rubles. (RUB 590,000 – RUB 90,000) included in expenses for the first quarter. Since this type of expenses under a license agreement for a trademark is not provided for in Article 346.16 of the Tax Code of the Russian Federation. And also did not take into account the amount of VAT in the amount of 90,000 rubles related to this remuneration.

The accountant took into account periodic license payments in monthly expenses (in February and March) in the amount of 5,900 rubles.

Thus, license payments in the amount of 11,800 rubles were taken into account as part of the expenses for the first quarter. (5900 rubles × 2 months).

Application of VAT benefits

Taxpayers have the right to apply benefits in accordance with subparagraph. 26 clause 2 art. 149 Tax Code of the Russian Federation Article 149, only if the conditions provided for in the Tax Code of the Russian Federation are met, as well as a correct understanding of the conceptual apparatus associated with the application of this benefit.

Content

Taxpayers have the right to apply benefits in accordance with subparagraph. 26 clause 2 art. 149 Tax Code Article 149 of the Tax Code of the Russian Federation, only if the conditions provided for in the Tax Code of the Russian Federation are met, as well as a correct understanding of the conceptual apparatus associated with the application of this benefit.

Let's consider the issues of applying the VAT benefit provided for in subsection. 26 clause 2 art. 149 of the Tax Code of the Russian Federation, regarding the implementation on the territory of the Russian Federation of the right to use computer programs and databases on the basis of a license agreement.

In accordance with sub. 26 clause 2 art. 149 of the Tax Code of the Russian Federation is not subject to VAT on the sale 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 property.” activities on the basis of a license agreement."

Realization of rights to use computer programs and databases

According to paragraph 1 of Art. 39 Tax Code Article 39 of the Tax Code of the Russian Federation, the sale of goods, work, and services for tax purposes is the transfer on a reimbursable basis (in cases established by the Tax Code of the Russian Federation on a gratuitous basis) of ownership of goods, results of work performed, services rendered. In paragraph 1 of Art. 39 of the Tax Code of the Russian Federation talks about the sale of goods, the results of work performed, services provided, but not about the exercise of rights. Therefore, we can conclude that in paragraph 1 of Art. 39 of the Tax Code of the Russian Federation does not disclose the content of the concept “exercise of rights to use computer programs and databases.” Since the content of this concept is not disclosed in other norms of the Tax Code of the Russian Federation, you need to turn to the norm of paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, according to which, in the absence of meanings of concepts and terms in the norms of the Tax Code of the Russian Federation, to establish the meanings of the corresponding concepts and terms, one should be guided by acts of other branches of legislation of the Russian Federation. Based on paragraph 1 of Art. 11 Tax Code Article 11 of the Tax Code of the Russian Federation, you need to refer to the norms of the Civil Code of the Russian Federation.

In accordance with paragraph 1, clause 1, art. 1235 Civil Code Article 1235 of the Civil Code of the Russian Federation, under a licensing agreement, one party - the holder of the exclusive right to the result of creative activity (licensor) grants or undertakes to provide another person (licensee) with the right to use such result within the limits provided for by the agreement. According to paragraph 1 of Art. 1286 Civil Code Article 1286 of the Civil Code of the Russian Federation, under a license agreement, one party - the author or other copyright holder (licensor) grants or undertakes to provide the other party (licensee) with the right to use such work within the limits established by the agreement.

Systemic interpretation of subclause 26 clause 2 art. 149 of the Tax Code of the Russian Federation, paragraph 1, clause 1, art. 1235 of the Civil Code of the Russian Federation and clause 1 of Art. 1286 of the Civil Code of the Russian Federation allows us to conclude that the exercise of the right to use computer programs and databases means granting the right to use computer programs and databases on the basis of a license agreement

Granting the right to use"

The concept of “granting the right to use” when applying the VAT tax benefit established in subparagraph. 26 clause 2 art. 149 of the Tax Code of the Russian Federation raises many questions.

According to paragraph 1 of Art. 1236 Civil Code Article 1236 of the Civil Code of the Russian Federation, a license agreement can be of two types:

a license agreement under which the licensee is granted the right to use the result of intellectual activity while preserving the licensor’s right to issue licenses to other persons (simple (non-exclusive license);

a license agreement under which the licensee is granted the right to use the result of intellectual activity without retaining the licensor’s right to issue licenses to other persons (exclusive license).

From the above paragraph 1 of Art. 1236 of the Civil Code of the Russian Federation it follows that the granting of the right to use is reduced to the granting by the licensor to the licensee of an exclusive or non-exclusive license in the form of a license agreement. Naturally, this understanding of the concept of “license” is quite unusual. In our usual understanding, a license is understood as the actual document issued by an authorized government body, which is a permit for the person to whom such a document is issued to carry out a certain type of activity.

At first glance, from paragraph 1 of Art. 1236 of the Civil Code of the Russian Federation, we can conclude that the concept of “granting the right to use” is identical to the concept of “license”. However, this conclusion is erroneous, since the license represents a complex object that includes several elements.

Granting the right to use is only one element of granting a license.

The second element of granting a license may be the transfer by the licensor to the licensee of the relevant document on paper.

Paper document

By agreement of the parties to the license agreement, the licensor may transfer to the licensee a document on paper with the title “License”. This document contains information about the content of the right granted, how to access the software and other necessary information.

The third element of the license grant is how the software is accessed.

Methods to access the software

The granting of a license by a licensor to a licensee is meaningless without the presence of the software for which the corresponding license is granted.

In this regard, the following methods of accessing the software can be distinguished:

The licensor transfers passwords, ciphers, codes, access keys, etc. to the licensee. by sending via the Internet, transmission on media or other means.

The licensor transfers passwords, ciphers, codes, access keys, etc. to the licensee. by sending via the Internet, transmission on media or other means, as well as a license in the form of a paper document containing the necessary relevant information.

The licensor transfers the license to the licensee in the form of a paper document, which specifies passwords, ciphers, codes, access keys, etc. and other relevant necessary information.

Note on the three methods above. Using appropriate passwords, ciphers, codes, access keys, etc., the licensee gains access to the software on the website of the manufacturer or other copyright holder, which he “downloads” from the specified site and installs on his computers in accordance with the terms of the granted license.

The licensor transfers the software directly to the licensee on the appropriate media.

The licensor transfers directly to the licensee the software on the appropriate media, as well as the license in the form of a paper document, which specifies the necessary relevant information.

There may be other ways to access the software within the scope of the license provided. Those. The given list of methods is not exhaustive.

Transfer and Acceptance Certificate

In addition to the license agreement governing the provision of a license by the licensor to the licensee, it is necessary to confirm the moment of direct provision of the license. The document confirming the direct grant of a license is the acceptance certificate.

Currently, there is controversy regarding the name and provisions of the content of this act. Some experts suggest calling the specified act of acceptance and transfer of rights. This name of the act (and, accordingly, the understanding of the essence of the process) is erroneous, since rights cannot be physically transferred to their intangible nature. Therefore, for this act, a name such as “act of acceptance and transfer” or “act of acceptance and transfer of license” is accurate and correct. The proposed name of the act is also correct in the case if the licensor transfers to the licensee only passwords, ciphers, codes, access keys, etc. in electronic form by sending via the Internet. This act states that:

the licensor provided the licensee with a license indicating its name, quantity, amount (size) of remuneration for the license. It is necessary to separately indicate that the amount (size) of the license fee is not subject to VAT on the basis

pp. 26 clause 2 art. 149 of the Tax Code of the Russian Federation. The terms “amount” and “amount” in relation to the term “remuneration” are equivalent, therefore it is possible to use both terms - the amount of remuneration or the amount of remuneration, respectively;

the license is considered granted by the licensor to the licensee from the moment they sign this act.

If copies of software are transferred, then the act also indicates the number of copies for each type of software and their media (usually CDs (DVDs)).

Note. If several licenses are provided, then the listed data for each type of license is indicated accordingly.

Conflict of legal norms in terminology

In accordance with paragraph 2, clause 1, art. 1235 of the Civil Code of the Russian Federation, the licensee can use the result of intellectual activity only within the limits of those rights and in the ways provided for in the license agreement. It is also stated here that the right to use the result of intellectual activity that is not expressly specified in the license agreement is not considered granted to the licensee.

In sub. 26 clause 2 art. 149 of the Tax Code of the Russian Federation, which establishes a VAT benefit, talks about the implementation of rights to use.

In the norms of paragraph 1, clause 1, Art. 1235 Civil Code of the Russian Federation, clause 1, art. 1236 Civil Code of the Russian Federation, clause 1, art. 1286 of the Civil Code of the Russian Federation, the right of use is mentioned in the singular.

The question therefore arises: which is the correct usage of the term “law”: singular or plural?

An analysis of the norms of the Civil Code of the Russian Federation shows that the correct option is to use the right of use in the singular, since it (this right) is one. At the same time, the right of use can be exercised in different ways, an open list of which is given in paragraph 2 of Art. 1270 Civil Code Article 1270 of the Civil Code of the Russian Federation.

Methods for implementing the license specified in clause 2 of Art. 1270 of the Civil Code of the Russian Federation: dispute about the possibility of changing their content

In paragraph 2 of Art. 1270 of the Civil Code of the Russian Federation provides a list of ways to implement the license provided by the licensor to the licensee. Since this list is not closed, the licensor and licensee may provide in the license agreement for methods not specified in clause 2 of Art. 1270 Civil Code of the Russian Federation.

There is a dispute among experts on the following issue: is it possible to change, at the discretion of the parties to the license agreement, the content of the methods expressly provided for in paragraph 2 of Art. 1270 of the Civil Code of the Russian Federation?

Neither in the norms of Art. 1270 of the Civil Code of the Russian Federation, nor in the norms of other articles of the Civil Code of the Russian Federation, the legislator did not provide for the right of the parties to the license agreement to change the content of the methods directly provided for by the legislator in paragraph 2 of Art. 1270 Civil Code of the Russian Federation. It follows that the contents provided for in paragraph 2 of Art. 1270 of the Civil Code of the Russian Federation, the methods cannot be changed at the discretion of the parties to the license agreement.

Of course, supporters of the opposite position may object that such a conclusion contradicts the principle of civil law “everything is permitted that is not expressly prohibited by law.” But then the logic of the legislator is violated, since the meaning of the legislative formulations of the methods, the content of which the parties to the license agreement can change at their discretion, becomes unclear.

Thus, the licensor and licensee do not have the right, at their own discretion, to change the content of the methods expressly provided for by the legislator in paragraph 2 of Art. 1270 Civil Code of the Russian Federation.

Transactions with software subject to VAT

It is necessary to distinguish between operations for the provision of licenses that are not subject to VAT on the basis of subparagraph. 26 clause 2 art. 149 of the Tax Code of the Russian Federation, from transactions subject to VAT. Transactions subject to VAT include, for example, the supply of software under supply contracts, the performance of various types of work and the provision of various types of services in relation to software (for example, the provision of technical support services for software.

Some experts mistakenly claim that in the case of the transfer of software as part of the grant of a license, the transfer of the software itself is a VAT-taxable operation, and the provision of a license is a non-VAT-taxable operation. But such a statement unjustifiably complicates the situation and is therefore erroneous.

If software is supplied as a product under a supply agreement, and a license is granted in respect of said software under a license agreement, then the supply of software as a product is a VAT-taxable transaction, and the provision of a license is a VAT-free transaction.

If, as part of the grant of a license, copies of software on certain media are transferred, in respect of which the license is granted, as specifically stipulated in the license agreement, then the cost of the transferred copies of the software and the cost of their media are included in the license fee. Accordingly, they are not subject to VAT. The legitimacy of this approach is shared by the Ministry of Finance of the Russian Federation (for example, Letter of the Ministry of Finance of the Russian Federation dated 01.04.08 No. 03-07-15/44).

Sublicense agreement

In accordance with paragraph 2 of Art. 1238 Civil Code Article 1238 of the Civil Code of the Russian Federation, under a sublicense agreement, the licensee may grant the sublicensee the right to use the result of intellectual activity only within the limits of those rights and those methods of use that are provided for by the license agreement for the licensee. A sublicense agreement is concluded with the consent of the licensor. According to paragraph 5 of Art. 1238 of the Civil Code of the Russian Federation, the rules of the Civil Code of the Russian Federation on a license agreement are applied to a sublicense agreement.

Since the license agreement and the sublicense agreement are largely identical, the material presented in this article is fully applicable to the sublicense agreement. Accordingly, the VAT benefit provided for in sub-clause applies to the sublicense agreement. 26 clause 2 art. 149 of the Tax Code of the Russian Federation.

There is a dispute among experts regarding the names of the parties to the sublicense agreement. For example, it is proposed as one of the options - sublicensor and sublicensee. Since the example given as an example of the names of the parties to the sublicense agreement does not correspond to the names of the parties specified in clause 2 of Art. 1238 of the Civil Code of the Russian Federation, then this option is incorrect. This option cannot be called incorrect, since the use of such a variant of the names of the parties to the sublicense agreement does not entail legal consequences in the form, for example, of recognizing the agreement as unconcluded or invalid, or changing the qualifications of the agreement. However, it is better to refer to the parties to the sublicensing agreement as the licensee and sublicensee, i.e. in strict accordance with paragraph 2 of Art. 1238 Civil Code of the Russian Federation.

Sample documents

At the end of the article, samples of some documents that can be used in practice are provided:

sublicense agreement;

act of acceptance and transfer.

Naturally, the proposed sample documents can be changed at your discretion. The presented sample sublicense agreement contains a minimum set of necessary provisions.

SUBLICENCE AGREEMENT No. _________

_____________________ " ___ " __________ 2008

_______________________________________________________________________________,

hereinafter referred to as the “Licensee”, represented by _______________________________________,

acting on the basis of ______________________________________________________________, on the one hand, and _______________________________________________________________,

hereinafter referred to as the “Sublicensee”, represented by ____________________________________,

acting on the basis of ______________________________________________________________, on the other hand, collectively referred to as the “Parties”, have entered into this Agreement as follows:

1. THE SUBJECT OF THE AGREEMENT

1.1. Under this Agreement, the Licensee grants the Sublicensee the right to use the software (non-exclusive licenses) in the following ways: * ( Note: here are the methods directly listed by the legislator in clause 2 of Article 1270 of the Civil Code of the Russian Federation, or other methods at the discretion of the parties)

—

—

1.2. The Licensee confirms that he has the necessary rights and authority to enter into this Agreement, received from the copyright holder of the relevant software.

1.3. The Parties indicate the name and number of non-exclusive licenses provided in the Specification, which is Appendix No. 1 to this Agreement and its integral part.

2. TERMS OF PAYMENT

2.1. The remuneration for non-exclusive licenses is _________________

______________________________________________________________________________ rub., VAT is not assessed on the basis of paragraphs. 26 clause 2 art. 149 of the Tax Code of the Russian Federation.

2.2. Remuneration for non-exclusive licenses specified in clause 2.1. of this Agreement, the Sublicensee transfers to the Licensee in full on the basis of the invoice issued by the Licensee within _______ days from the moment the parties sign the Transfer and Acceptance Certificate. The payment date is considered to be the date the funds are credited to the Licensee’s bank account.

3. TERMS OF NON-EXCLUSIVE LICENSES

3.1. The Licensee grants the Sublicensee non-exclusive licenses within _________________days from the date of signing by the Parties of this Agreement at the address: ________________________________________________________________________________.

3.2. The Licensee and the Sublicensee sign a Transfer and Acceptance Certificate confirming that the Licensee has provided the Sublicensee with non-exclusive licenses. Non-exclusive licenses are considered granted from the moment the Licensee and Sublicensee sign the Transfer and Acceptance Certificate.

4. VALIDITY OF NON-EXCLUSIVE LICENSES

4.1. The validity period of non-exclusive licenses is equal to the validity period of the exclusive right in relation to the corresponding software.

5. RESPONSIBILITY OF THE PARTIES

5.1. For failure to fulfill or improper fulfillment of their obligations under this Agreement, the Parties are liable in accordance with the current legislation of the Russian Federation.

6. ADDITIONAL CONDITIONS

6.1. The Licensee grants the Sublicensee the right to enter into sublicensing agreements with end users.

7. CHANGE AND TERMINATION OF THIS AGREEMENT

7.1. Any changes and additions made to this Agreement are formalized by additional agreements signed by the Licensee and the sublicensee and which are its integral parts.

7.2. This Agreement may be terminated on the grounds and in the manner established by the current legislation of the Russian Federation.

8. DISPUTE RESOLUTION PROCEDURE

8.1. In case of disputes, the Parties resolve disputes through negotiations, and in the absence of a positive result following negotiations, in the manner established by the current legislation of the Russian Federation.

9. OTHER CONDITIONS

9.1. This Agreement is valid from the moment it is signed by the Parties until the Parties fully fulfill the obligations provided for herein.

9.2. All issues not regulated in this Agreement are resolved in accordance with the current legislation of the Russian Federation.

9.3. This Agreement is drawn up in 2 (two) copies - one for each party, having equal legal force.

9.4. The Specification (Appendix No. 1) is attached to this Agreement and is an integral part of it.

10. DETAILS AND SIGNATURES OF THE PARTIES

Appendix No. 1

to the Sublicense Agreement

No.________ dated “_____”___________2008

Specification

Licensee Sublicensee

Transfer and Acceptance Certificate

to the Sublicense Agreement

No._____________ from “___”__________ _________.

_____________ " ___ " __________ _________

________________________________________________________________________________hereinafter referred to as the “Licensee”, represented by __________________________________________,

acting on the basis of ______________________________________________________________, on the one hand, and _______________________________________________________________,

hereinafter referred to as the “Sublicensee”, represented by ____________________________________,

acting on the basis of ______________________________________________________________, on the other hand, collectively referred to as the “Parties”, have drawn up this Act as follows:

1. In accordance with Sublicense Agreement No._______________________ dated “_____”__________2008. The Licensee has granted the Sublicensee the following non-exclusive licenses:

2. This Act certifies that from the moment it is signed by both Parties, the Licensee has granted the Sublicensee non-exclusive licenses.

3. The amount of remuneration for non-exclusive licenses is _______________

______________________________________________________________________________, VAT is not assessed in accordance with paragraph 26, paragraph 2, article 149 of the Tax Code of the Russian Federation.

4. This Act is drawn up in 2 (Two) copies having equal legal force, one for each of the Parties.

Licensee Sublicensee

_____________________ ____________________

_____________________ ____________________

Legal documents

• (Tax Code Article 149)
• (Tax Code Article 39)
• (Tax Code Article 11)
• (Civil Code Article 1235)
• (Civil Code Article 1286)
• (Civil Code Article 1236)
• (Civil Code Article 1270)
• (Civil Code Article 1238)

OSNO and UTII

The calculation of taxes when transferring license payments for the right to use intellectual property depends on the type of activity for which the intellectual property is used.

If the right is used only within the framework of activities on the general taxation system, then take into account the license payments according to the rules in force when calculating income tax and VAT (clause 9 of Article 274 and clause 7 of Article 346.26 of the Tax Code of the Russian Federation).

If the right is used only within the framework of activities on UTII, then do not take into account any expenses in the single tax base. Since the object of UTII taxation is imputed income (clause 1 of Article 346.29 of the Tax Code of the Russian Federation).

Moreover, if a license agreement is concluded for the purpose of carrying out both types of activities, expenses in the form of license fees and related expenses must be distributed (clause 9 of Article 274 and clause 7 of Article 346.26 of the Tax Code of the Russian Federation).

Input VAT relating to such payments must also be allocated. Distribute VAT according to the methodology established in paragraphs 4, 4.1 of Article 170 of the Tax Code of the Russian Federation.

The amount of VAT that cannot be deducted should be added to the expenses for the activities of the organization subject to UTII (subclause 3, clause 2, article 170 of the Tax Code of the Russian Federation).

How to confirm a benefit

So, rights to software products under a license agreement are transferred under a preferential tax regime. However, the Tax Code of the Russian Federation has not established a list of documents confirming the right to VAT exemption for such transactions. The Russian Ministry of Finance drew attention to this in a commented letter. But there are letters from the Ministry of Finance in which it indicates that the preferential tax regime is valid only if there is an appropriate agreement (see, for example, letters dated October 7, 2010 No. 03-07-07/66, dated January 12, 2009 No. 03-07- 05/01, dated 02/21/2008 No. 03-07-08/36, etc.). This means that a license agreement is required and it must be drawn up correctly.

A correctly drawn up license agreement must contain all the essential conditions established by the Civil Code of the Russian Federation in Article 1235. Otherwise, it will be declared invalid and the benefit unconfirmed.

The essential terms of the license agreement are:

• subject of the contract;
• methods of using intellectual property;
• the amount of remuneration if the license agreement is paid.

Expert “NA” V.Yu. Kirpichnikov

Accounting for various types of intellectual property

For more information on accounting and taxation of rights to certain types of intellectual property, see:

• How to reflect the purchase of a computer program in accounting;

• How to reflect the purchase of a computer program in tax accounting;

• How to record the costs of purchasing a trademark.

If an organization has received the right to use intellectual property from a citizen, for more information about accounting for license payments, see:

• How to record remuneration under copyright agreements;

• How can a licensee record remuneration under a license agreement with a citizen?