Lack of primary document
If you have not completed the required primary document and this is discovered during a tax audit, you may be fined.
Thus, Article 120 of the Tax Code of the Russian Federation qualifies “the absence of primary documents, invoices or accounting or tax registers” as “a gross violation of the rules for accounting for income, expenses and taxable items.”
The fine for such a violation is 10,000 rubles. If such violations are committed repeatedly in different tax periods, the fine increases to 30,000 rubles.
If such a violation resulted in an “understatement of the tax base,” the fine will be 20% of the amount of unpaid tax, but not less than 40,000 rubles.
Keep in mind
From January 1, 2014, Article 120 of the Tax Code applies not only to companies, but also to entrepreneurs.
There is another danger. Article 252 of the Tax Code of the Russian Federation defines reasonable and documented expenses as expenses.
If a document confirming the expenses incurred by the organization (for example, an acceptance certificate for completed work) is not executed or is drawn up with serious violations, the tax office may not accept such expenses for tax purposes.
As a result, you will be charged the underestimated tax amount, as well as penalties.
In addition, the inspection may impose a fine under Article 122 “Non-payment or incomplete payment of amounts of tax (fee)” of the Tax Code, which provides for a fine of 20% of the unpaid amount of tax (fee), and acts committed intentionally entail a fine of 40%.
However, here it is necessary to point out an essential point: the tax inspectorate does not have the right to present demands for the payment of fines for the same violation simultaneously under Articles 120 and 122 of the Tax Code (determination of the Constitutional Court of the Russian Federation of January 18, 2001 No. b-O).
If you underestimated the tax base and did not pay the tax due to a gross violation of accounting rules, you will be fined under paragraph 3 of Article 120. If you underestimated the tax base and did not pay the tax for another reason, you will be fined under Article 122.
If the tax inspectorate has imposed fines on you simultaneously under the two above-mentioned articles for the same violation, do not rush to agree with it.
In such a situation, tax officials are unlikely to be able to prove their case in arbitration court.
Meanwhile, many local tax inspectors interpreted other provisions of tax legislation in their own way. So, for example, if an organization drew up a document in any form for a transaction for which a standard form is provided, tax authorities could classify this as a “gross violation of the rules for accounting for income, expenses and taxable items.”
The inspectors could draw the same conclusion even if the organization did not fill out all the required details of the standard form.
RESULTS
Since 2013, taxpayers have the right to use both unified and independently developed forms of primary accounting documents. The main thing is to consolidate the form used in the accounting policy of the enterprise. Unified forms for recording cash and banking transactions, as well as transport invoices, remained mandatory.
Sources:
- tax code of the Russian Federation
- Law “On Accounting” dated December 6, 2011 N 402-FZ
- Law “On Electronic Signature” dated 04/06/2011 N 63-F
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Not all details are filled in
As arbitration practice shows, in such cases the courts often take the side of taxpayers.
PRIMEROO transferred funds to the foreign partner to pay for consulting services. However, the act confirming the provision of services did not contain all the necessary details. During the on-site inspection, tax inspectors regarded this as a violation of the Federal Law “On Accounting” and excluded the amount paid to the foreign partner from the cost price. As a result, it was decided to charge additional tax, as well as collect penalties and fines from the enterprise. did not agree with the inspection's decision and appealed to the arbitration court. Having studied the case materials, the court sided with the enterprise. He, in particular, pointed out that “minor deficiencies in the preparation of primary documents ... do not indicate the absence of a business transaction, as well as the absence of expenses for the company to pay for consulting services.”
Due to the abolition of the mandatory use of unified forms of primary documents, companies should reduce the number of disputes with inspectors. Controllers will no longer be able to “remove” expenses due to improperly executed documents, since the requirement to use standard forms of documents does not exist from January 1, 2013 (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ).
Forms of primary accounting documents
Starting from 2013, the forms of primary accounting documents used (with the exception of state organizations) are determined by the head of the economic entity (clause 4 of article 9 of the Accounting Law). These can be unified forms or your own, developed in compliance with the mandatory details of the primary documents. Before this date, when using unified forms, it was impossible to delete the existing details of such documents (letter of the Ministry of Finance of Russia dated 07/08/2011 No. 03-03-06/1/414); it was only possible to supplement the form with new lines or columns.
When developing your own forms of primary accounting documentation, it should be taken into account that the forms of primary accounting documents established by authorized bodies in accordance with other federal laws and on their basis remain mandatory for use (Information of the Ministry of Finance of Russia dated December 4, 2012 No. PZ-10/2012). Examples of such forms are:
— cash documents provided for by the Directive of the Bank of the Russian Federation dated March 11, 2014 No. 3210-U (receipt and expense cash orders, cash book and book of accounting for funds accepted and issued by the cashier, settlement and payment and payroll statements);
— primary documents for accounting for cash payments when carrying out trade operations using cash registers, developed on the basis of Federal Law No. 54-FZ dated May 22, 2003 “On the use of cash register equipment when making cash payments and (or) settlements using payment cards” and approved by Resolution of the State Statistics Committee of the Russian Federation dated December 25, 1998 No. 132 (see letter of the Federal Tax Service of Russia dated June 23, 2014 No. ED-4-2/11941). That is, in this case, it is still necessary to use unified forms of primary accounting documentation for recording monetary settlements with the population when carrying out trade operations using cash register machines (forms No. KM-1 - No. KM-9);
— a waybill approved by Decree of the Government of the Russian Federation dated April 15, 2011 No. 272, which confirms the conclusion of a transportation agreement (letters from the Ministry of Finance of Russia dated January 28, 2013 No. 03-03-06/1/36, dated April 23, 2013 No. 03-03-06/ 1/14014).
At the same time, as practice shows, few economic entities have abandoned the use of the usual unified forms for which most accounting software products are designed.
Many organizations operating vehicles must draw up a waybill to confirm expenses for fuel and lubricants. This raises the question: can an organization independently develop a form of waybill, guided only by the mandatory details contained in paragraph 2 of Art. 9 of the Accounting Law?
Let us remind you that the mandatory details and procedure for filling out waybills are established by Order of the Ministry of Transport of Russia dated September 18, 2008 No. 152 (hereinafter referred to as Order of the Ministry of Transport of Russia No. 152). Letter of the Ministry of Finance of Russia dated August 25, 2009 No. 03-03-06/2/161 states that a waybill independently developed by an organization can be one of the documents confirming the costs of purchasing fuel and lubricants, if it contains mandatory details approved by order of the Ministry of Transport of Russia No. 152. But are Ministry of Transport details required for all enterprises?
As noted in the Decision of the Arbitration Court of the Samara Region dated April 15, 2014 No. A55-31301/2012, the use of Form No. 3 “Passenger Car Waybill” is mandatory only for motor transport organizations. Other organizations can either use the unified form No. 3 “Passenger car waybill”, or develop their own form of waybill or other document that confirms the validity of the expenses incurred for the purchase of fuels and lubricants, which must reflect all the details provided for in paragraph 2 Art. 9 of the Accounting Law. At the same time, primary documents must be drawn up in such a way and with such regularity that on their basis it is possible to judge the validity of the expenses incurred (letter of the Ministry of Finance of Russia dated 04/07/2006 No. 03-03-04/1/327).
In a number of cases, tax authorities, based on shortcomings in waybills (non-compliance with the form approved by Order of the Ministry of Transport of Russia No. 152), conclude that business transactions are unrealistic. When resolving such disputes in court, judges also note that the taxpayer is not a transport organization, and therefore the amount of information indicated in the waybills is sufficient to carry out tax control (resolution of the Fourth Arbitration Court of Appeal dated April 1, 2015 No. A78-6705/2014).
However, the situation is different for motor transport enterprises. In accordance with paragraph 2 of Art. 6 of the Transport Charter prohibits the transportation of passengers and luggage, cargo by buses, trams, trolleybuses, cars, trucks without issuing a waybill for the corresponding vehicle. In this regard, improper execution of a waybill (in forms that do not comply with Order of the Ministry of Transport of Russia No. 152) leads to fines (Decision of the Arbitration Court of the Sakhalin Region dated April 16, 2015 No. A59-570/2015).
Primary document for an imaginary transaction
Considering that from January 1, 2014, it is impossible to accept for accounting documents documents that document facts of economic life that did not take place, including those underlying imaginary and feigned transactions (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ ). Officials have determined the scope of responsibility for registration of such documents in accounting.
Thus, the person who compiled the primary document is recognized as responsible for registration of the fact of economic life. This entity (citizen or company) must ensure the timely transfer of the executed document to the accounting department for registration in accounting, as well as guarantee the reliability of its data.
As for the persons who are entrusted with accounting (for example: an accountant, a manager) or with whom an agreement has been concluded for the provision of accounting services (for example: an outsourcing company), they are not responsible for the compliance of the “primary” and accomplished facts of economic life.
We will remove the wrong document and add the correct one.
Specialists from the Federal Tax Service of Russia have renounced their position that primary documents with errors cannot be replaced with new ones. Let us remind you that this is exactly the conclusion that tax officials came to literally in January of this year. And now, in letters dated 03/23/2018 No. SD-4-3/ [email protected] and dated 03/05/2018 No. SD-4-3/ [email protected] , they recognized it as legitimate to follow the rules provided for when making corrections to the primary to adjust invoices.
January clarifications...
In “BP”, 2021, No. 6, we talked about the letter of the Federal Tax Service of Russia dated January 12, 2018 No. SD-4-3/264. In it, tax service specialists indicated that the preparation of an adjustment document is provided for by the Tax Code exclusively for invoices. For profit tax purposes, expenses are accepted if there are documents drawn up in accordance with current legislation.
The rules for drawing up primary documents, as well as the requirements for preparing corrections to the primary documents, are established in the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter referred to as the Law on Accounting). And this law does not provide for the replacement of a primary document previously accepted for accounting with a new document in the event of errors being detected. Let us remind you that according to clause 7 of Art. 9 of the Accounting Law, a correction in the primary accounting document must contain the date of the correction, as well as the signatures of the persons who compiled the document in which the correction was made, indicating their last names and initials or other details necessary to identify these persons.
Thus, from the explanations of the tax service it followed that they would not accept the document that was replaced for profit tax purposes as evidence of expenses. After all, according to Art. 252 of the Tax Code of the Russian Federation, expenses incurred by the organization are recognized subject to their confirmation by documents drawn up in accordance with the legislation of the Russian Federation. And the Accounting Law does not provide for correcting a document by replacing it with a new one.
...and March additions
a letter dated 03/05/2018 No. SD-4-3/ [email protected] in addition to the above clarifications. Now tax authorities believe that when an organization develops methods for making corrections to primary documents, it is permissible to focus on the Rules for filling out invoices, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137 (hereinafter referred to as the Rules for filling out invoices).
The Tax Service referred to the letter of the Ministry of Finance of Russia dated January 22, 2016 No. 07-01-09/2235. Financiers indicated that the organization has the right to independently develop ways to make corrections to primary accounting documents (Parts 2-4 of Article 8 of the Law on Accounting, PBU 1/2008 “Accounting Policy of Organizations”). At the same time, it must be based on the requirements of the Accounting Law and regulatory legal acts on accounting. It is also necessary to take into account the peculiarities of document flow in the company.
According to financial department specialists, methods for correcting primary documents can be borrowed from existing regulations governing similar issues, in particular from the Rules for filling out invoices.
Paragraph 7 of the Rules for filling out invoices states that corrections are made to this document by drawing up a new copy, which indicates the number and date of the invoice drawn up before the changes were made to it, as well as the serial number and date of the correction. The tax authorities indicated that thereby implementing a procedure similar to that provided for in clause 4.2 of the Regulations on Documents and Document Flow in Accounting, approved by the USSR Ministry of Finance on July 29, 1983 No. 105. According to the specified norm, errors in primary documents created manually (with the exception of cash and banking), are corrected as follows: the incorrect text or amount is crossed out and the corrected text or amount is written above the crossed out. Crossing out is done with one line so that the correction can be read.
Thus, taken together, in the original document and the document with corrected data, there is information about the incorrect and correct text, the date of correction and confirmation of the correction by the signatures of the persons who signed the document. Tax service specialists noted that this procedure for making corrections to primary documents compiled in electronic form, in particular, has been implemented:
- format for presenting a document on the transfer of work results (document on the provision of services), approved by Order of the Federal Tax Service of Russia dated November 30, 2015 No. ММВ-7-10/ [email protected] ;
- format for presenting a document on the transfer of goods during trade operations, approved by order of the Federal Tax Service of Russia dated November 30, 2015 No. ММВ-7-10/ [email protected] ;
- invoice format and format for presenting a document on the shipment of goods (performance of work), transfer of property rights (document on the provision of services), including an invoice, used in VAT calculations and (or) when registering facts of economic life, approved by order Federal Tax Service of Russia dated March 24, 2016 No. ММВ-7-15/ [email protected]
In a letter dated March 23, 2018 No. SD-4-3/ [email protected], the tax service duplicated the above position.
As you can see, specialists from the Federal Tax Service of Russia do not object to the issuance of a new document to replace the one that contains an error. But at the same time, the new document must necessarily indicate the serial number of the correction and its date. Only in this case the procedure for correction will be similar to the rules provided for invoices.
The courts are not against replacement
Disputes about whether it is possible to replace an incorrectly drawn up primary document with a new one have repeatedly reached the courts. An example is the resolution of the Volga District Court of Justice dated May 24, 2017 in case No. A72-5811/2016. In this case, the tax authorities, when determining the market value of materials, took into account the delivery note, in which the volume of shipped materials was indicated incorrectly. At the same time, the corrected delivery note and invoice (reflecting the actual volume of shipped material) were not taken into account by the tax authority on the grounds that the company made adjustments by replacing the documents with new ones. The arbitrators noted that tax legislation does not prohibit such a method of correction as completely replacing the primary document with errors with new documents with the same details.
A similar conclusion is contained in the resolution of the Federal Antimonopoly Service of the Moscow District dated May 31, 2011 No. KA-A40/4937-11.
Poor quality document from a partner
Here's another example. It shows that if you received an unfinished document from your partner, this does not mean that penalties can be imposed on your company.
EXAMPLE The tax inspectorate conducted an on-site audit, as a result of which a decision was made to hold the company accountable. The basis for this decision was, in particular, the lack of invoices in the 1-T form. However, the court did not agree with the point of view of the tax authorities, pointing out that the fact that the company posted the purchased goods was confirmed by invoices in the TORG-12 form. In response to this, the tax inspectorate gave another argument: in the invoices (TORG-12) there is no reference to the number and date of the invoice. But the arbitrators did not agree with this argument either, emphasizing that “the absence of a reference to the number and date of the waybill, upon actual acceptance of the goods for registration, confirmation by witnesses of the fact of delivery of the goods by the supplier, does not indicate the absence of delivery of the goods” (resolution of the Federal Antimonopoly Service of the West Siberian District dated September 22, 2010 in case No. A27-391/2010 (by decision of the Supreme Arbitration Court of the Russian Federation dated January 21, 2011 No. VAS-67/11, the case was refused to be transferred to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision)).
