Transactions not subject to VAT: services, goods and income not subject to taxation

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According to Art. 53 of the Tax Code of the Russian Federation, the tax base represents the cost, physical or other characteristics of the object of taxation . The tax base for value added tax is determined depending on the object of taxation, as well as other amounts associated with payments for goods (work, services). In Art. 146 of the Tax Code of the Russian Federation states that the following operations are recognized as the object of taxation for value added tax:

Carrying out construction and installation work for own consumption

It is worth noting that the concept of “ construction and installation work for one’s own needs ” is not included in the legislation. This concept is mentioned only in the Procedure for filling out Form N P-1 “Information on the production and shipment of goods and services”, approved by Rosstat Order No. 278 of November 12, 2008 (hereinafter referred to as the Procedure). Clause 19 of section of the Procedure states that construction and installation work performed in an economic way includes work carried out for its own needs by the organization’s own resources. These also include work for which the organization allocates workers for the construction of the main activity and pays them wages according to construction orders, as well as work performed by construction organizations for their own construction. Thus, construction and installation work includes the cost of such work performed for one’s own consumption in an economic way. The exceptions in this case are: - the cost of work performed by contractors; — the cost of work taken into account as part of production costs. The cost of construction and installation work is reflected in line 07 of form N P-1. If the cost of such work falls under the above restrictions, then, accordingly, they are not included in line 07.

Characteristics of objects subject to VAT

Almost all transactions performed in the course of the activities of an economic entity that is a tax payer are subject to mandatory VAT. This includes the sale of goods, the transfer of valuables for one’s own needs, or the performance of construction and installation work within the enterprise itself, as well as the arrival of goods into the territory of the Russian Federation from other countries.

Cases of determining taxable objects are presented in more detail in our material “Art. 146 Tax Code of the Russian Federation 2021: (questions and answers)" .

In the process of conducting business, it is important to understand which transactions must be charged tax, what documents are required to confirm the VAT deduction and for transfer to customers.

Information on this issue of the year is presented in the article “What is subject to VAT in 2017” .

Trade organizations often conduct advertising campaigns and issue gift certificates. Is it necessary to charge VAT when exchanging these certificates for goods? Read the article “Goods in exchange for a certificate—should I pay VAT?”

Many companies carry out construction work within the organization to improve their own material conditions, without setting themselves the goal of further selling the property. Is there a need to accrue and pay VAT if the work was carried out in-house without the involvement of third-party contractors? What is the position of representatives of official bodies on this matter?

From the material “What is considered construction and installation work for VAT purposes” you can obtain up-to-date information related to the performance of work for your own consumption.

In cases where the transfer of goods is gratuitous, the amount of the VAT taxable item is calculated based on the average market price. The seller has the right to take into account the amount of input VAT subject to certain conditions:

• goods (services) were purchased for the purpose of their subsequent use in taxable transactions;
• they are accepted for accounting according to primary documentation;
• there is an invoice.

The buyer, in turn, cannot accept the amount of tax according to the issued invoice, since the object is subject to VAT in this case (clause 2 of Article 171 of the Tax Code of the Russian Federation), and the amount of tax when accounting for the goods is included in its original cost. Invoices from sellers when transferring goods free of charge are not recorded in the purchase book.

However, VAT is not always charged when transferring goods without receiving a material benefit.

More information about these cases can be found in the publication “Is VAT paid when transferring property free of charge?” .

Almost every enterprise is faced with the need to issue workers with forms of work books or inserts for them. The article “The Ministry of Finance reminded how to deal with VAT and profit when issuing work books” explains why VAT must be charged when issuing these forms. Another object of VAT taxation is the transfer of goods for one’s own needs within the enterprise itself (subclause 2, clause 1, article 146 of the Tax Code of the Russian Federation). But in this case, it is necessary to observe certain points related mainly to the occurrence of expenses when determining income tax.

Under what conditions does an organization become subject to taxation when transferring goods for its own needs? How does the further use of the received property affect income? Under what circumstances is there no need to charge VAT?

You will find answers to these questions in the material “Transfer of goods between structural divisions is not an object for VAT” .

If an organization transfers property as compensation to repay a loan, then it becomes obligated to calculate VAT. Read more about this in our materials:

• “Repayment of a loan with compensation entails the payment of VAT”;
• “Paying off a loan with compensation is unprofitable for VAT”;
• “Tax officials will allow VAT deduction when receiving compensation on a loan”.

Judges' opinions were divided

In our opinion, the following judicial acts are indicative. Resolution of the Ninth Arbitration Court of Appeal dated April 12, 2012 N 09AP-7320/2012-AK. The judges in this Resolution, siding with the VAT payer, came to the conclusion that, in violation of the provisions of Art. 88 of the Tax Code of the Russian Federation, the tax authority unlawfully demanded from the taxpayer documents confirming transactions not related to tax benefits. They justified their decision like this. Tax legislation, including those relating to the procedure for calculating VAT, distinguishes between concepts such as “object of taxation” and “transactions not subject to taxation”. The object of taxation as the sale of goods (work, services), property, profit, income, expense or other circumstance that has a cost, quantitative or physical characteristic, the presence of which is linked by the legislation on taxes and fees to the taxpayer’s obligation to pay tax. . Moreover, each tax has an independent object of taxation, determined in accordance with part two of the Tax Code of the Russian Federation and taking into account the provisions of Art. 56 Tax Code of the Russian Federation. Article 146 of the Tax Code of the Russian Federation, which determines the object of VAT taxation, establishes that operations for the sale of land plots (shares in them) are not subject to taxation for all VAT payers. That is, benefits for any individual categories of taxpayers, paragraphs. 6 paragraph 2 of the said article are not provided in this case. Tax benefits can only be applied to transactions that are subject to taxation, while transactions for the sale of land plots by virtue of paragraphs. 6 paragraph 2 art. 146 of the Tax Code of the Russian Federation do not apply to these. Resolution of the Federal Antimonopoly Service dated January 25, 2012 N A65-9081/2011. FAS PO, considering a similar dispute, came to exactly the opposite conclusions, indicating the following. Chapter 21 of the Tax Code of the Russian Federation provides for the provision of tax benefits in the form of excluding certain transactions from the subject of VAT . Transactions that are not recognized as subject to VAT and transactions that are not subject to taxation (exempt from taxation) must be reflected in section. 7 VAT returns. According to paragraph 2 of Art. 56 of the Tax Code of the Russian Federation, the taxpayer has the right to refuse to use the benefit. From the analysis of the norm of Art. 56 of the Tax Code of the Russian Federation it follows that benefits apply to both objects and subjects of taxation , which means that transactions not subject to VAT are a tax benefit for payers of this tax. Under these circumstances, the judges of the said district considered that the tax authority had every reason to apply paragraph 6 of Art. 88 and, accordingly, paragraph 1 of Art. 126 of the Tax Code of the Russian Federation. According to the author, the arguments presented in the first Resolution are more weighty. Let us explain why. The fact is that tax benefits are always targeted and their establishment is the responsibility of the legislator. Based on the definition given in Art. 56 of the Tax Code of the Russian Federation, the following qualifying features of a tax benefit can be identified: - to apply it, the taxpayer must comply with the procedure established by law (in order to thereby move into a separate category of taxpayers). For example, in order to, in accordance with Art. 149 of the Tax Code of the Russian Federation to take advantage of the exemption from VAT when carrying out certain types of activities falling under this article, the taxpayer must have a license to carry out these types of activities; — the subject of taxation can take advantage of the benefit only in relation to the subject of taxation; — the law must provide for the possibility of refusing to apply a tax benefit. In other words, the use of a tax benefit or refusal of it to a large extent depends on the will of the VAT payer himself, which cannot be said about the preferences provided for in paragraph 2 of Art. 146 of the Tax Code of the Russian Federation. The transactions mentioned in this paragraph cannot be taken into account by the taxpayer in the VAT taxable base under any circumstances, and the presence (or absence) of his will does not play a role here. It follows from this that it is necessary to distinguish between benefits and cases when there is no object of taxation. Accordingly, the taxpayer is not obliged to submit documents confirming the legality of reflection in Section. 7 specified transactions not subject to taxation.

Educational services

Situation: can an organization use VAT benefits when providing services in the field of education (conducting lectures, seminars, etc.) if, based on the results of training, it does not conduct certification and does not issue educational documents?

Only non-profit organizations can use VAT benefits when providing services in the field of education (subclause 14, clause 2, article 149 of the Tax Code of the Russian Federation). Therefore, if educational services are provided by a commercial organization, it is obliged to charge VAT on their entire cost.

Non-profit organizations are exempt from taxation when selling educational services within the framework specified in the licenses:

• general education programs;

• professional (main and (or) additional) educational programs;

• vocational training programs or educational process.

A complete list of services for the implementation of educational programs is given in the appendix to the regulations on licensing of educational activities, approved by Decree of the Government of the Russian Federation of October 28, 2013 No. 966.

In addition, VAT is not assessed on the sale of additional educational services that, in terms of level and focus, correspond to the programs specified in the license.

If an organization licensed for educational activities, as part of this activity, conducts one-time classes in the form of lectures, seminars, internships, then these additional educational services are also not subject to VAT.

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated April 28, 2012 No. 03-07-07/47.

Tax Code of the Russian Federation (Chapter 21 Value Added Tax)

1. The following transactions are recognized as the object of taxation:

1) sale of goods (work, services) on the territory of the Russian Federation, including the sale of “collateral” and transfer of goods (results of work performed, provision of services) under an agreement on the provision of “compensation” or “novation”, as well as transfer of property rights . (as amended by the Federal Law of May 29, 2002 N 57-FZ)

For the purposes of this chapter, the transfer of ownership of goods, results of work performed, and the provision of services free of charge is recognized as the sale of goods (work, services);

2) transfer of goods on the territory of the Russian Federation (performance of work, provision of services) for one’s own needs, “expenses” for which are not accepted for deduction (including through depreciation charges) when calculating corporate income tax; (as amended by Federal Laws dated December 29, 2000 “N 166-FZ”, dated August 6, 2001 “N 110-FZ”)

3) carrying out construction and installation work for own consumption;

4) importation of goods into the territory of the Russian Federation and other territories under its jurisdiction. (as amended by the Federal “law” dated November 27, 2010 N 306-FZ)

2. For the purposes of this chapter, the following are not recognized as an object of taxation: (as amended by Federal Law No. 57-FZ of May 29, 2002)

1) operations specified in “clause 3 of Article 39” of this Code;

2) transfer, free of charge, of residential buildings, kindergartens, clubs, sanatoriums and other objects of social, cultural and housing and communal services, as well as roads, electrical networks, substations, gas networks, water intake structures and other similar objects to government bodies and bodies local government (or, by decision of these bodies, specialized organizations that use or operate these facilities for their intended purpose);

3) transfer of property of state and municipal enterprises purchased through “privatization”;

4) performance of work (provision of services) by bodies included in the system of state authorities and local self-government bodies, within the framework of the exercise of the exclusive powers assigned to them in a certain field of activity in the event that the obligation to perform the specified work (provision of services) is established by the legislation of the Russian Federation, legislation of the constituent entities of the Russian Federation, acts of local government bodies; (as amended by the Federal Law of May 29, 2002 N 57-FZ)

5) transfer on a gratuitous basis of fixed assets to government and local government bodies, as well as state and municipal institutions, state and municipal unitary enterprises; (as amended by the Federal Law of November 3, 2006 N 175-FZ)

6) operations for the sale of land plots (shares in them); (Clause 6 introduced by Federal Law of August 20, 2004 N 109-FZ)

7) transfer of the organization’s property rights to its “successor”(s); (Clause 7 introduced by Federal Law No. 118-FZ dated July 22, 2005)

transfer of funds to non-profit organizations for the formation of endowment capital, which is carried out in the manner established by the Federal “law” “On the procedure for the formation and use of endowment capital of non-profit organizations”; (Clause 8 introduced by Federal Law of December 30, 2006 N 276-FZ)

9) operations for the implementation by taxpayers who are Russian organizers of the Olympic Games and Paralympic Games in accordance with “Article 3” of the Federal Law “On the organization and holding of the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi, the development of the city of Sochi as a mountain-climatic resort and amendments to certain legislative acts of the Russian Federation", goods (works, services) and property rights, carried out in agreement with persons who are foreign organizers of the Olympic Games and Paralympic Games in accordance with "Article 3" of the Federal Law "On Organization and holding the XXII Olympic Winter Games and the XI Paralympic Winter Games in 2014 in the city of Sochi, the development of the city of Sochi as a mountain climatic resort and amendments to certain legislative acts of the Russian Federation”, as part of the fulfillment of obligations under the agreement concluded by the International Olympic Committee with the Russian Olympic Committee and the city Sochi to host the XXII Olympic Winter Games and XI Paralympic Winter Games 2014 in Sochi; (Clause 9 introduced by Federal Law No. 310-FZ dated December 1, 2007)

10) provision of services for the transfer for free use to “non-profit organizations” for the implementation of statutory activities of state property that is not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity; (Clause 10 introduced by Federal “law” dated November 25, 2009 N 281-FZ)

11) performance of work (provision of services) as part of additional measures aimed at reducing tension in the labor market of the constituent entities of the Russian Federation, implemented in accordance with decisions of the Government of the Russian Federation; (Clause 11 was introduced by Federal Law No. 41-FZ dated 04/05/2010)

12) operations for the sale (transfer) on the territory of the Russian Federation of state or municipal property that is not assigned to state enterprises and institutions and constitutes the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, Autonomous Okrug, as well as municipal property not assigned to municipal enterprises and institutions and constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, purchased in the manner established by the Federal “Law” of July 22, 2008 N 159-FZ “On the Features alienation of real estate that is state-owned by constituent entities of the Russian Federation or municipally owned and leased by small and medium-sized businesses, and on amendments to certain legislative acts of the Russian Federation.” (Clause 12 was introduced by Federal Law No. 395-FZ of December 28, 2010).

Section 7 of the VAT return: how to fill out, what to take into account?

1. It’s no secret that tax authorities, when conducting a desk audit, compare the tax base for VAT and income tax. And quite often these amounts do not add up. As a rule, the reason for the discrepancy is non-operating income, which is not subject to VAT. In connection with this, the question arises: do they need to be reflected in Section 7 of the VAT return? For example, is it necessary to include in the VAT return:

• interest on deposit
• interest accrued by the bank on the account balance
• exchange differences
• fines under business contracts
• accounts payable written off after the expiration of the limitation period

events
and insurance premiums: new rules from January 1, 2021

February 11, 2021 at 14:00

First, let's figure out who should fill out Section 7 of the VAT return? The procedure for filling out section 7 of the VAT return is given in section XII of the Procedure for filling out the VAT return, approved by Order of the Federal Tax Service of Russia dated October 29, 2014 N ММВ-7-3/ [email protected] (hereinafter referred to as the Procedure for filling out the declaration). And it contains the answer to our question.

In Column 1 of Section 7 of the VAT Declaration, you must indicate the transaction code from Appendix No. 1 to the Procedure for filling out the declaration, and in Column 2 for each transaction code - the cost of shipped goods (work, services) and a list of cases in which this column must be filled in ( clause 44.3 of the Procedure for filling out the declaration). It follows from this that section 7 must be completed only by those taxpayers and VAT tax agents who in the past quarter carried out:

• sales operations are not subject to VAT (exempt from VAT) in accordance with Article 149 of the Tax Code of the Russian Federation;
• operations not recognized as an object of taxation, listed in paragraph 2 of Art. 146, paragraph 3 of Art. 39 Tax Code of the Russian Federation;
• operations for the sale of goods (works, services), the place of sale of which is not recognized as the territory of the Russian Federation in accordance with Art. Art. 147, 148 Tax Code of the Russian Federation.

Taxpayers who have received amounts of payment or partial payment for upcoming deliveries of goods (performance of work, provision of services), the duration of the production cycle of which is more than 6 months, must also complete Section 7. There is a special line 010 for this.

Please note that the Procedure for filling out the declaration contains a closed list of transactions that must be reflected in Section 7. All non-operating income specified in the question (exchange differences, fines under business agreements, written off accounts payable, interest income on a deposit, interest accrued by the bank on account balance) are not included in these transactions.

When receiving such income, there is no fact of sale of goods (work, services) (clause 1 of Article 39 of the Tax Code of the Russian Federation), i.e. the taxpayer does not sell goods, perform work or provide services.

This means that, based on clause 1 of Article 146 of the Tax Code of the Russian Federation, there is no subject to VAT. In addition, to reflect transactions that are not subject to VAT specifically in accordance with clause 1 of Article 146 of the Tax Code of the Russian Federation, there are no codes indicated in column 1 of Section 7 (clauses 44.2 - 44.5 of the Procedure), which once again confirms that “ non-objects” under clause 1 of Article 146 of the Tax Code of the Russian Federation (lack of implementation) are not reflected in section 7 of the declaration.

Thus, the non-operating income listed in the question does not need to be reflected in Section 7 of the VAT return.

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2. Our organization issued a loan to its employee at interest. Do I need to fill out Section 7 of the declaration, and if so, what code should I indicate in column 1?

Transactions to provide a loan in cash, including interest on them, are exempt from VAT in accordance with paragraphs. 15 clause 3 art. 149 of the Tax Code of the Russian Federation. Accordingly, such non-taxable transactions must be included in Section 7 of the VAT declaration (clauses 44.2 - 44.5 of the Procedure for filling out the declaration).

But in section 7 of the declaration, only the amount of interest accrued for the quarter needs to be reflected, and the amount of the loan provided is not reflected (Letter of the Federal Tax Service of the Russian Federation dated April 29, 2013 N ED-4-3/7896). Data on the amount of accrued interest is indicated in column 2 of Section 7 (clause 44.3 of the Procedure for filling out the declaration). In this case, code 1010292 is indicated in column 1 (clause 44.2 of the Procedure for filling out the declaration).

3. Is it necessary to fill out Section 7 when calculating coupon income on bonds?

The Ministry of Finance of the Russian Federation qualifies accrued interest on bonds as interest on a loan (Letter of the Ministry of Finance of Russia dated 03.02.2016 N 03-07-11/5310). He justified his position by the fact that, in accordance with Art. 816 of the Civil Code of the Russian Federation, in cases provided for by law or other legal acts, a loan agreement can be concluded by issuing and selling bonds. Therefore, the accrued coupon income should be reflected in section 7 of the VAT return in the same way as accrued interest on loans issued, indicating in column 1 transaction code 1010292 .

4. How to fill out columns 1 and 2 of Section 7 of the VAT return when distributing goods for advertising purposes that are not subject to VAT?

Indeed, the transfer of goods (work, services) for advertising purposes, the cost of purchasing (creating) a unit of which does not exceed 100 rubles, is not subject to VAT in accordance with paragraphs. 25 clause 3 art. 149 of the Tax Code of the Russian Federation. When filling out section 7 of the VAT return, in column 1 you should indicate the transaction code 1010275, and in column 2 - the cost of goods (work, services) shipped.

Considering that goods for advertising purposes are distributed without charging payment, column 2 should indicate the market value of the distributed advertising goods, and if it is impossible to determine it, the cost of these advertising goods, calculated on the basis of all actual expenses of the taxpayer for their acquisition (creation) and transfer ( this will be the market price).

Such conclusions can be drawn from the clarifications of the Ministry of Finance of the Russian Federation (Letters of the Ministry of Finance of Russia dated July 20, 2017 N 03-07-11/46167, dated April 27, 2010 N 03-07-07/17, dated October 26, 2016 N 03-07-11/62251 ).

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5. Our organization is a manufacturer of goods and carries out warranty repairs itself. How to fill out column 2 of Section 7 of the declaration if no fee is charged for warranty repairs?

Services provided without charging additional fees for the repair and maintenance of goods and household appliances during the warranty period of their operation, including the cost of spare parts for them and parts for them, are exempt from VAT (clause 13, clause 2, article 149 of the Tax Code RF). Therefore, in column 1 of Section 7 of the declaration, code 1010244 should be indicated.

Column 2 of Section 7 of the VAT return, as already mentioned, reflects the cost of goods (work, services) sold (transferred) that are not subject to taxation. But what should be considered the cost of services (work) sold in case of warranty repairs?

The procedure for filling out the declaration is not specified. Considering that warranty repair services are provided in-house (i.e., there is no sales revenue) and without additional payment (i.e., the cost of warranty repairs for the buyer is zero), we believe that the number zero should be indicated in this column. Unfortunately, there are no explanations from the Ministry of Finance and the Federal Tax Service of Russia on this issue; the author can only express an expert point of view.

6. How to fill out columns 3 and 4 of Section 7 of the VAT return, what should I include in them?

Column 3 for each transaction code reflects the cost of goods (work, services) for the purchase of which the seller did not submit VAT (clause 44.4 of the Procedure for filling out the declaration):

For example:

When selling securities, column 3 may reflect the cost of acquiring securities (such an operation is not subject to VAT), and when distributing goods for advertising purposes, if such an operation is exempt from VAT, in column 3 you can indicate the cost of promotional souvenirs purchased from an organization using the simplified tax system.

Column 4 for each transaction code reflects the amount of tax presented upon the acquisition of goods (work, services) or paid when importing goods into the territory of the Russian Federation, which are not subject to deduction in accordance with clauses 2 and 5 of Art. 170 of the Tax Code of the Russian Federation (clause 44.5 of the Procedure for filling out the declaration).

Those. in this column you need to reflect the amounts of VAT that were not accepted for deduction when carrying out separate accounting.

Please note that from January 1, 2021, the “5% rule”, which allows you not to keep separate records and deduct the entire amount of VAT, has officially changed (clause 4 of Article 170 of the Tax Code of the Russian Federation). VAT relating exclusively to non-taxable transactions cannot be deducted, regardless of the share of expenses for non-taxable transactions. If expenses for non-taxable transactions in the total amount of expenses for the quarter do not exceed 5%, then the taxpayer has the right to deduct the entire amount of “general business” VAT, i.e. VAT relating to goods (works, services) purchased simultaneously for taxable and non-taxable transactions.

In other words, when applying the “5% rule,” the taxpayer does not need to distribute input VAT in proportion between taxable and non-taxable transactions (such VAT can be deducted). In this case, it is necessary to keep separate records of VAT relating exclusively to taxable transactions (I accept it for deduction) and exclusively to non-taxable transactions (it is included in the cost of acquisitions) (clause 4 of Article 170 of the Tax Code of the Russian Federation).

Let us note that similar clarifications were given by the Federal Tax Service of the Russian Federation back in 2017, taking into account the Determination of the Supreme Court of the Russian Federation (Decision of the Supreme Court of the Russian Federation dated October 12, 2016 N 305-KG16-9537 in case No. A40-65178/2015, Letter of the Federal Tax Service of Russia dated December 23, 2016 N SA-4-7/ [email protected] ).

Accordingly, when checking Section 7 of the VAT return, the tax authorities will pay special attention to columns 3 and 4. The absence of VAT amounts not accepted for deduction in column 4 and the simultaneous absence of the cost of “VAT-free” purchases in column 3 will allow the tax authorities to conclude that taxpayer for separate accounting of input VAT.

Of course, if there may be any costs for the operations specified in Section 7. For example, if a taxpayer reflects interest on loans issued in Section 7 of the VAT return, then most likely he will have nothing to reflect in columns 4 and 3 (loan expenses, as well as VAT claimed on such expenses, as a rule, are not present).

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7. What liability is provided for errors when filling out Section 7 of the declaration and for the absence of this section as part of the VAT declaration?

There is no tax liability for incorrectly filling out Section 7 of the VAT return, since such an error does not lead to an understatement of the tax amount. Moreover, formally, the taxpayer does not have the obligation to submit an updated VAT return due to errors in this section (clause 1 of Article 81 of the Tax Code of the Russian Federation).

However, it is possible that the tax authorities may hold the taxpayer’s officials administratively liable for failure to provide information necessary for tax control and (or) provision of such information incompletely or in a distorted form. In this case, in accordance with Article 15.6 of the Administrative Code, the fine for the official will be from 300 to 500 rubles. (Letter of the Federal Tax Service of Russia dated December 18, 2012 N AS-4-2/21574, Letter of the Federal Tax Service for Moscow dated February 29, 2016 N 24-15/019268).

Accordingly, if the taxpayer forgot to include Section 7 in the VAT return, the taxpayer’s officials may also face a fine under Article 15.6 of the Code of Administrative Offenses (300-500 rubles). At the same time, according to the Federal Tax Service in Moscow, for submitting a VAT return not in full (without Section 7), the taxpayer may be brought to tax liability in accordance with clause 1 of Art. 126 of the Tax Code of the Russian Federation in the form of a fine in the amount of 200 rubles. for each unsubmitted document (Section 7) (see Letter of the Federal Tax Service for Moscow dated February 29, 2016 N 24-15/019268).

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Article 146. Object of taxation

1. Analysis of the rules of paragraph 1 of Art. 146 shows that:

1) The Tax Code defines the object of VAT much more clearly than was done in the norms:

- Art. 1 of the Law on VAT (that VAT is a form of withdrawal to the budget of part of the added value created at all stages of production and defined as the difference between the cost of goods, works, services produced and the cost of material costs attributed to production and distribution costs);

- Art. 3 of the VAT Law (stating that the objects of VAT are turnover on the sale in the territory of the Russian Federation of goods, work performed and services rendered, as well as goods imported into the territory of the Russian Federation under the customs regimes established by the customs legislation of the Russian Federation);

2) in Art. 146 of the Tax Code overcomes these internal contradictions between two (essentially different) definitions of VAT (which contained Articles 1, 3 of the VAT Law). In addition, in Art. 146 provides a much more complete and detailed description of the VAT object, it takes into account the actual content of this tax and the practice of recent years in its calculation and payment;

3) they fully comply with the provisions of paragraph 1 of Art. 38 of the Tax Code that the objects of taxation are, in particular, transactions for the sale of goods (work, services), the cost of goods (work, services) sold, property, income or another object that has cost, quantitative or physical characteristics, with the presence of which the taxpayer is bound by the legislation on taxes and fees (in this case, the VAT legislation) by the emergence of an obligation to pay tax;

4) in accordance with them, the following transactions are recognized as objects of VAT (and not turnover, not goods, not work, not services themselves):

a) sale of goods (works, services) on the territory of the Russian Federation. It should be taken into account that:

— sales of goods (work, services) are recognized as the transfer on a paid basis (including the exchange of goods (work, services) of ownership of goods, the transfer of the results of work performed by one person for another person, the provision of services for a fee by one person to another person (p 1 Article 39 of the Tax Code) Article 146 significantly complements the mentioned rule: the transfer of ownership of goods, the results of work performed by one person for another person, the provision of services by one person to another person free of charge is also equated to sale (for VAT purposes). on the other hand, are not recognized as sales of goods (works, services):

— carrying out operations related to the circulation of Russian or foreign currency (except for numismatic purposes);

— transfer of fixed assets, intangible assets and (or) other property of the organization to its legal successor(s) during the reorganization of this organization;

— transfer of fixed assets, intangible assets and (or) other property to non-profit organizations for the implementation of the main statutory activities not related to business activities;

- transfer of property, if such transfer is of an investment nature, in particular, contributions to the authorized (share) capital of business companies and partnerships, contributions under a simple partnership agreement (agreement on joint activities), share contributions to mutual funds of cooperatives;

- transfer of property within the limits of the initial contribution to a participant in a business company or partnership (his legal successor or heir) upon exit (disposal) from a business company or partnership, as well as when distributing the property of a liquidated business company or partnership between its participants;

- transfer of property within the limits of the initial contribution to a participant in a simple partnership agreement (agreement on joint activities) or his legal successor in the event of the separation of his share from the property that is in common ownership of the parties to the agreement, or the division of such property;

— transfer of residential premises to individuals in houses of the state or municipal housing stock during privatization;

- seizure of property by confiscation, inheritance of property, as well as the conversion into the ownership of other persons of ownerless and abandoned things, ownerless animals, finds, treasure in accordance with the norms of the Civil Code of the Russian Federation (Article 39 of the Tax Code).

In addition, operations expressly specified in clause 2 of Art. are not recognized as sales of goods (work, services). 146 (see below);

— we are also talking about the sale of collateral. They can be any property, incl. things and property rights (claims), with the exception of property withdrawn from circulation, claims inseparably related to the personality of the creditor, in particular, claims for alimony, compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law (Article 336 of the Civil Code). The sale of the subject of pledge is carried out by sale at public auction in the manner established by law (unless a different procedure is established by law). In this case, it is necessary to follow the rules of Art. 350 GK is that:

- at the request of the mortgagor, the court has the right, in a decision to foreclose on the pledged property, to postpone its sale at public auction for up to one year. The postponement does not affect the rights and obligations of the parties under the obligation secured by the pledge of this property, and does not relieve the debtor from compensation for the creditor's losses and penalties that have increased during the postponement;

— the initial sale price of the pledged property, from which the auction begins, is determined by a court decision in cases of foreclosure on property through judicial proceedings or by an agreement between the pledgee and the pledgor in other cases. The pledged property is sold to the person who offers the highest price at the auction;

- when the auction is declared invalid, the pledgee has the right, by agreement with the pledgor, to purchase the pledged property and offset his claims secured by the pledge against the purchase price. The rules on sales and purchase agreements apply to such an agreement. If the repeated auction is declared invalid, the pledge holder has the right to retain the pledged item with its valuation in the amount of no more than 10 percent below the initial sale price at the repeated auction. If the pledgee does not exercise the right to retain the pledged item within a month from the date the repeated auction is declared invalid, the pledge agreement is terminated;

- if the amount received from the sale of the pledged property is insufficient to cover the claim of the pledgee, he has the right, in the absence of other instructions in the law or agreement, to receive the missing amount from the other property of the debtor, without taking advantage of the pledge;

- if the amount received from the sale of the pledged property exceeds the amount of the pledgee's claim secured by the pledge, the difference is returned to the pledgor. The debtor and the pledgor, who is a third party, have the right at any time before the sale of the pledged item to stop foreclosure and its sale by fulfilling the obligation secured by the pledge or that part of it, the fulfillment of which is overdue. An agreement limiting this right is void (see more about this in the book: Guev A.N., Article-by-article commentary to Part 1 of the Civil Code of the Russian Federation (ed. 2). M., 2000. P. 572 - 575);

- in paragraph 1 of Art. 146 also refers to the transfer of goods (results of work performed, services provided) under an agreement (it must be in written form, taking into account the norms of Articles 158 - 162 of the Civil Code);

- about compensation. Let us recall that under an indemnity agreement, the parties can terminate the obligation by providing some property (or payment of a debt) in exchange for performance. The amount, terms, and procedure for providing compensation are established by the parties themselves (Article 409 of the Civil Code);

- about innovation. It must be borne in mind that an obligation can be terminated by an agreement of the parties to replace the original obligation existing between them with another obligation between the same persons, providing for a different subject or method of execution (this is novation). Novation is not allowed in the fulfillment of obligations to compensate for harm caused to life or health, and to pay alimony. Novation terminates additional obligations associated with the original agreement, unless otherwise provided by agreements of the parties (Article 414 of the Civil Code). See about this in more detail in the indicated book by A.N. Guev. pp. 657, 658, 661, 663;

b) transfer of goods on the territory of the Russian Federation, as well as performance of work or provision of services, for one’s own needs. In this case, you need to pay attention to the fact that:

— about when such a transfer occurs on the territory of the Russian Federation (and about what is considered the “territory of the Russian Federation”), see the commentary to Art. 147.

The object of VAT taxation arises only when the expenses were incurred by the organization itself (i.e., it itself, without resorting to the assistance of third parties, carried out some work, activities and at the same time incurred expenses). If the organization involved third parties in the work, then there is no object of VAT taxation, although the costs are obvious.

- in Art. 146 we encounter a significant exception from the general rules of Art. 39 of the Tax Code (they are based on the fact that the sale of goods (work, services) involves the transfer of ownership of the goods, the transfer of the results of work, services to another person): even when the transfer of ownership of the goods (transfer of the results of work to another person, the provision of services to another person ) no - nevertheless, there is a VAT object. The question arises: is there a contradiction between Articles 39 and 146 of the Tax Code? Of course I have. The legislator took this into account and therefore in subparagraphs 1 and 2 of Art. 146 uses special terms (instead of the concept of “sale” of goods (works, services), the phrases “transfer of goods for one’s own needs”, “performing work for one’s own needs”, “provision of services for one’s own needs” are used). There are also significant exceptions from the norms of the current civil legislation; in this regard, you need to remember the rules of Art. 2 Civil Code and Art. 2, 11 of the Tax Code (that in the event of a discrepancy between the norms of the Civil Code and the Tax Code, the latter have priority for tax purposes (see also the commentary to paragraph 1 of Article 159 of the Tax Code). We are talking only about the transfer of such goods (works, services) , expenses for which are not accepted (including through depreciation deductions) for tax deductions when calculating corporate income tax (currently one must proceed from Regulation No. 552, see the commentary on this to Article 170 of the Tax Code);

c) performing construction and installation work for own consumption. If it occurs, then the VAT tax base is determined as the cost of work performed, calculated on the basis of all actual expenses of the taxpayer for their implementation (clause 2 of Article 159 of the Tax Code). In this case, VAT is calculated taking into account the rules of Art. 167 of the Tax Code (on the date of transfer of the result of construction and installation work, see the commentary to Article 167);

d) importation of goods into the customs territory of the Russian Federation. It should be taken into account that in paragraph 1 of Art. 146 we are talking only about the import of goods (but not the results of work performed), and the customs territory of the Russian Federation, mentioned in Art. 146, is determined according to the rules of Art. 3 TK. It establishes that:

— the customs territory of the Russian Federation consists of the land territory of the Russian Federation, territorial and internal waters and the airspace above them. The customs territory of the Russian Federation also includes artificial islands, installations and structures located in the maritime exclusive zone of the Russian Federation, over which the Russian Federation has exclusive jurisdiction in relation to customs matters;

— there may be free customs zones and free warehouses on the territory of the Russian Federation. The territories of free customs zones and free warehouses are considered to be outside the customs territory of the Russian Federation, except for cases determined by the Labor Code and other legislative acts of the Russian Federation on customs affairs;

— the limits of the customs territory of the Russian Federation, as well as the perimeters of free customs zones and free warehouses are the customs border of the Russian Federation;

- the import of goods (mentioned in Article 146) into the customs territory of the Russian Federation should be understood as any actions for the actual movement of goods and vehicles from abroad across the customs border of the Russian Federation, as well as import from the territory of free customs zones and free warehouses to the rest of the customs territory territory of the Russian Federation (Article 18 of the Labor Code).

The object of VAT is precisely the operation of importing goods into the customs territory of the Russian Federation.

2. Clause 2 of Art. 146 of the Tax Code imperatively establishes that for VAT purposes the sale of goods (work, services) is not recognized (this should not be confused with cases of transfer of goods, results of work, provision of services mentioned in subparagraphs 2 and 3 of paragraph 1 of Article 146, see about this above):

1) operations specified in clause 3 of Art. 39 NK (see about them above);

2) transfer of residential buildings, clubs, etc. free of charge. objects of social and cultural significance, as well as roads, electrical networks and other objects specified in subparagraph. 2 p. 2 art. 146 (i.e., for example, under a gift agreement, by way of donation, Articles 572 - 582 of the Civil Code). See more about this in the book: Guev A.N., Article-by-article commentary to Part 2 of the Civil Code of the Russian Federation (ed. 3), M., Infra-M, 2000. P. 161 - 176):

— or to government agencies and local governments themselves. At the same time, government bodies include representative (legislative) bodies of state power of the Russian Federation itself and its constituent entities (for example, the State Duma of the Russian Federation, the Moscow City Duma), federal executive bodies (for example, the Ministry of Justice of the Russian Federation) or executive authorities of constituent entities of the Russian Federation (for example, the administration Tambov region), court authorities, prosecutor's office. Local government bodies include representative and executive bodies created in municipalities (for example, city assemblies, city council, executive committee, district administration, etc.);

- or (at the direction of state bodies and local governments) to specialized organizations that carry out the use or operation of these facilities for their intended purpose). There is a significant contradiction between the norms of Art. 146 Tax Code and Art. 575 of the Civil Code (prohibiting donations in relations between commercial organizations). In this regard, to the extent that individual entrepreneurs or commercial organizations must transfer free of charge the objects mentioned in subparagraph. 2 p. 2 art. 146 other commercial organizations (even if only on the instructions of state bodies and local governments) - there is an invalid transaction (the fact is that in this case, not the norms of Article 146 of the Tax Code, but the norms of Article 575 of the Civil Code have priority. This follows from Art. 2 GK).

There is no reason to talk about the VAT object in this situation.

3) transfer of property of state and municipal enterprises purchased through privatization. Systematic analysis of Art. 146 Tax Code and Art. 16 of the Law on Privatization shows that the transfer of state and municipal property privatized in another way (for example, when sold at auction, during a commercial competition with investment and (or) social conditions), and not through the purchase of leased state or municipal property, - is the subject of VAT, a different conclusion would contradict the literal text of subclause 3 of clause 2 of Art. 146;

4) performance of work (provision of services) by government agencies and local government bodies, if this follows from the functions assigned to them by law. However, if government agencies and local government bodies provide services or perform work beyond the scope of the functions assigned to them, then there is a VAT subject (if such a service is paid);

5) transfer on a free basis (for example, with a donation) of fixed assets. In this case, you need to pay attention to a number of important circumstances. To those mentioned in Art. 146 fixed assets as a set of material assets used as means of labor in the production of products, performance of work or provision of services, or for the management of an organization for a period exceeding 12 months, or the normal operating cycle, if it exceeds 12 months, include buildings , structures, working and power machines and equipment, measuring and control instruments and devices, computer technology, vehicles, tools, production and household equipment and accessories, working and productive livestock, perennial plantings, on-farm roads and other fixed assets. Fixed assets also include capital investments in radical land improvement (drainage, irrigation and other reclamation works) and in leased fixed assets. Capital investments in perennial plantings and radical land improvement are included in fixed assets annually in the amount of costs related to the areas accepted for operation in the reporting year, regardless of the completion date of the entire complex of work. Fixed assets include land plots owned by the organization and environmental management facilities (water, subsoil and other natural resources). Completed capital investments in leased fixed assets are credited by the lessee organization to its own fixed assets in the amount of actual costs incurred, unless otherwise provided by the lease agreement. The cost of the organization's fixed assets is repaid by calculating depreciation over their useful life.

Depreciation of fixed assets is calculated regardless of the results of the organization’s economic activities in the reporting period in one of the following ways:

— linear method;

— method of writing off the cost in proportion to the volume of products (works, services);

— reducing balance method;

- a method of writing off cost based on the sum of the numbers of years of useful life.

For fixed assets of budgetary organizations, fixed assets received under a donation agreement and free of charge during the privatization process, acquired using budgetary allocations and other similar funds (in terms of the cost attributable to the amount of these funds), fixed assets transferred by decision of the head of the organization for conservation , the duration of which cannot be less than three months, external improvement objects and other similar objects (forestry objects, road facilities, specialized navigation facilities, etc. objects), productive livestock, buffaloes, oxen and deer, as well as purchased publications (books, brochures, etc.) depreciation is not charged.

The cost of land plots and environmental management facilities is not repaid.

Fixed assets are reflected in the balance sheet at their residual value, i.e. at the actual costs of their acquisition, construction and production minus the amount of accrued depreciation, and for a budgetary organization - at the original cost.

Changes in the initial cost of fixed assets in cases of completion, additional equipment, reconstruction and partial liquidation, revaluation of relevant objects are disclosed in the appendices to the balance sheet. A commercial organization has the right, no more than once a year (at the beginning of the reporting year), to revaluate fixed assets at replacement cost by indexation or direct recalculation of documented market prices with attribution of the resulting differences to the organization’s additional capital, unless otherwise established by the legislation of the Russian Federation.

They do not belong to fixed assets and are taken into account in organizations as part of funds in circulation, and in budgetary organizations - as part of low-value items and other valuables:

— items with a useful life of less than 12 months, regardless of their cost;

- items with a value on the date of acquisition of no more than 100 times the amount (for budgetary organizations - 50 times) of the minimum monthly wage per unit established by the legislation of the Russian Federation (based on their value stipulated in the contract) regardless of their useful life, for with the exception of agricultural machinery and tools, construction mechanized tools, weapons, as well as working and productive livestock, which are classified as fixed assets regardless of their cost.

The head of the organization has the right to set a lower value limit (for inclusion in accounting as part of funds in circulation) for the following items, regardless of their cost and useful life:

— fishing gear (trawls, seines, nets, nets, etc.); special tools and special devices (tools and devices for special purposes intended for serial and mass production of certain products or for the manufacture of individual orders); replaceable equipment (repeatedly used in production adaptations to fixed assets and other devices caused by the specific conditions of manufacturing products - molds and accessories, rolling rolls, air tuyeres, shuttles, catalysts and sorbents of the solid state of aggregation, etc.);

— special clothing, special shoes, as well as bedding;

— uniforms intended for issue to employees of the organization; clothing and footwear in healthcare, education and other organizations on a budget;

- temporary (non-title) structures, fixtures and devices, the costs of construction of which are included in the costs of construction work as part of overhead costs;

— items intended for rental under a rental agreement;

— young animals and fattening animals, poultry, rabbits, fur-bearing animals, bee families, as well as service dogs, experimental animals;

— perennial plantings grown in nurseries as planting material;

- gasoline-powered saws, delimbers, alloy cable, seasonal roads, mustaches and temporary branches of logging roads, temporary buildings in the forest with a useful life of up to 24 months (mobile heating houses, boiler stations, pilot workshops, gas stations, etc. (clause 46 - 49 Accounting Regulations).

In subparagraph 5 of paragraph 2 of Art. 146 we are talking about both the transfer of fixed assets directly to government agencies (local government bodies) and budgetary institutions (i.e. organizations created by government agencies, local government bodies to carry out managerial, social - cultural, scientific - technical or other functions of a non-profit nature, whose activities are financed from the relevant budget or the budget of the State Extra-budgetary Fund on the basis of estimates of income and expenses.In addition, budgetary institutions are recognized as organizations endowed with state or municipal property with the right of operational management, which do not have the status of a federal unitary enterprise, Article 161 of the Budget Code), and also on the free transfer of fixed assets to state and municipal unitary enterprises. Meanwhile, the gratuitous transfer of fixed assets to the latter (if transferred by a commercial organization) is not allowed by the rules of Art. 575 Civil Code (see above about this). The fact is that state and municipal unitary enterprises are commercial organizations. There is again a contradiction between Art. 146 Tax Code and Art. 575 of the Civil Code, the latter have priority (Article 2 of the Civil Code), therefore there is no reason to talk about the object of VAT, since such a transfer is an invalid transaction.

3. Concluding the commentary on Art. 146, we draw attention to a number of particular but important circumstances:

a) in subparagraph 2 of paragraph 1 of Art. 146 refers to cases of transfer of goods (work, services) for one’s own needs, if in this case expenses (for goods transferred, work performed, services provided) are not accepted for deduction when:

— calculation of corporate income tax. In this regard, you need to remember the rules of Art. 28 of Law 118 that a reference to the provisions of the chapter on corporate income tax is equivalent to references to the provisions of the current Law on Income Tax. Pending the adoption of a federal law defining the composition of costs for the production and sale of goods (work, services) included in the cost price and the formation of actual results, it is necessary to be guided by Regulation No. 552;

— implementation of depreciation charges (the latter, pending the adoption of a special federal law, are carried out in accordance with current depreciation standards).

b) when applying the rules of subclause 4 of clause 1 of Art. 146, it must be remembered that in accordance with Art. 2 of Law No. 118, the provisions of paragraph 1 of Art. 5 of the Law on VAT (in terms of exemption from VAT for raw materials, materials, equipment imported into the territory of the Russian Federation, purchased by enterprises of folk arts and crafts (see also the commentary on this to Article 149 of the Tax Code).

For judicial practice on this issue, see: BVS, 2000, No. 9. P. 1, 2.

From general to specific

The general rules given above are fully valid for desk audits of VAT returns. But the situation with confirming the legality of using VAT benefits, perhaps, cannot be considered simple and unambiguous. The point is that Ch. 21 of the Tax Code of the Russian Federation provides for the provision of preferences to VAT payers in the form of: - exclusion of a number of operations from the list of objects of VAT taxation (clause 2 of Article 146 of the Tax Code of the Russian Federation); — exemption of certain transactions from taxation (Article 149 of the Tax Code of the Russian Federation).

Note. A special rule is provided only for the case when the amount of tax to be refunded is declared in the VAT return. In this case, a desk tax audit is carried out not only on the basis of tax returns and documents submitted by the taxpayer in accordance with this Code. In addition, the tax authority has the right to request documents from the taxpayer in accordance with Art. 172 of the Tax Code of the Russian Federation confirming the legality of the application of tax deductions (clause 8 of Article 88 of the Tax Code of the Russian Federation).

However, none of these preferences is directly designated as a tax benefit . At the same time, all of the above operations are subject to reflection in Section. 7 VAT returns. In this regard, during desk audits, inspectors request documents confirming the right of VAT payers to be exempt from taxation for all, without exception, transactions reflected in this section, qualifying them as a tax benefit. Meanwhile, not all VAT payers unquestioningly comply with this requirement of the controllers, since they do not consider the operations named in clause 2 of Art. 146 of the Tax Code of the Russian Federation, tax benefits. Note that arbitration practice shows that this failure to comply with the requirements of controllers is often completely justified. The courts have not developed a unified approach to resolving such disputes arising around the transactions named in the mentioned paragraph - in judicial acts on this issue one can find different interpretations of the same provisions of tax legislation.

Non-taxable objects

The following transactions are not considered subject to VAT:

• Related to the circulation of currencies, except in cases of numismatics;
• Transfer of property of the organization OS, intangible assets to the legal successor caused by reorganization;
• Transfer of property to budgetary or public, non-profit organizations for activities other than business;
• Transfer of property of an investment nature, contributions to the management company for an LLC and others, share contributions, and so on;
• Transfer of property, property rights under concession;
• Return of property within the limits of the contribution to the management company upon liquidation of the organization or withdrawal of a participant from the partnership;
• Transfer of residential premises to individuals for privatization in the state and municipal housing stock;
• Free transfer of residential buildings and other premises for social, cultural and housing purposes, as well as structures, roads, electrical networks, gas facilities, and so on, to state and municipal authorities;
• Free transfer of fixed assets to state and municipal authorities;
• Sale of land plots and shares in them;
• Transfer of property rights of the organization to legal successors;
• Services for the transfer for free use to state and municipal authorities of property not assigned to the state and municipal authorities;

Example of a transaction with VAT-free objects

RFSO LLC sells the land plot to Land Allotments LLC. The plot is included in the OS, the cadastral value of the plot is 850,000 rubles. The amount of revenue is 14,000,000 rubles. The transfer of ownership occurs at the time of sale.

The RFSO accountant reflects this transaction, which is not recognized as an object of VAT taxation by postings:

The buyer, LLC "Land Allotments", acquires the plot not as a non-current asset, but for subsequent resale. Postings from the buyer: