On the preparation by the developer of invoices for co-investors and shareholders

Calculation of VAT for the developer

The activities of the developer have their own specifics, which directly determine the calculation of value added tax. Although the customer-developer acts on his own behalf, he does so in the interests and at the expense of investors, transferring to them everything built and counting on remuneration, which is included in the revenue. The remaining amounts received from investors (shareholders) are not included in the developer’s income. Developers who receive funds from investors and spend them in a targeted manner are faced with the following questions: should the entire amount received be included in income? Is the amount received subject to VAT? Are investment agreements intermediary agreements?

Although the customer-developer The remaining amounts received from investors (shareholders) are not included in the developer’s income. However, if in relation to income tax this norm is expressly provided for in paragraphs. 14 clause 1 art. 251 of the Tax Code of the Russian Federation, then developers have to resolve the issue in court regarding VAT. In arbitration practice, an approach has developed according to which funds received by the developer from investors under investment agreements are not included in the developer’s base for calculating VAT . The Resolution of the Federal Antimonopoly Service of the North-Western District dated December 15, 2009 in case No. A05-4979/2009 notes the following: - the developer accounts for funds received from investors in account 86 “Targeted financing”; - the relationship between the parties to the agreement is of an investment nature, since the main purpose of its conclusion for the participant in shared construction is to obtain the right to an apartment in exchange for a monetary investment, and for the developer - to receive funds used for the construction of the relevant objects; — funds received from investors are not income taken into account when determining the base for calculating VAT; - the norms of the Law of December 30, 2004 N 214-FZ are not subject to application in the case under consideration, since it is not an integral part of the legislation on taxes and fees and does not determine the procedure for forming the tax base for VAT. The calculation of VAT depends on the specific terms of the contract. This circumstance was drawn attention to in the Letter of the Ministry of Finance of Russia dated July 12, 2005 N 03-04-01/82: - funds received by the developer from participants in shared construction in order to reimburse the developer’s costs for the construction (creation) of a shared construction project are not subject to inclusion in the basis for calculating VAT from the developer, provided that the construction is carried out by contractors without performing construction and installation work by the developer; funds received by the developer under an agreement for participation in shared construction to pay for the developer’s services are subject to VAT in the generally established manner; - if an organization that is a developer under a participation agreement in shared construction, on its own or with the involvement of other persons, undertakes to build a property, i.e. the developer directly carries out construction and installation work, then the funds he receives from participants in shared construction are based on paragraphs. 1 clause 1 art. 162 of the Tax Code of the Russian Federation are included in its tax base as advance payments towards the upcoming completion of work. This conclusion is confirmed by arbitration practice (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated October 18, 2005 N F04-5364/2005(15012-A75-19); East Siberian District dated October 26, 2005 N A33-22120/04-S3-F02- 5176/05-С1).

In the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated July 28, 2008 in case No. A79-9119/2007, it is noted that within the framework of Law No. 214-FZ, two different ways are possible for the developer to fulfill its obligations to shareholders: on its own or with the involvement of other persons (including number of contractors) . In the latter case, the price of the contract, according to clause 1 of Art.

VAT from the developer

If the construction of objects is carried out by contractors without performing construction and installation work by the developer, the transfer in the prescribed manner to the investor’s balance sheet of part of the object completed by capital construction is not an operation for the sale of goods or construction and installation work from the developer. Accordingly, the developer does not recognize this operation as an object of VAT taxation.

At the same time, services for organizing the construction of a facility provided by the developer to investors, provided for by the investment agreement, are subject to taxation and are subject to VAT in the generally established manner. For the above services, the developer issues invoices to investors, which he records in his sales book.

VAT upon receipt of contributions from participants in shared construction

5 of Law N 214-FZ, can be defined in the contract as the amount of money to reimburse the costs of construction (creation) of a shared construction project and money to pay for the services of the developer. If the functions of the customer-developer are highlighted in the contract with remuneration, then it is this remuneration that forms the basis for calculating VAT for the provision of services to the customer-developer . In this case, the remuneration can be: - as a percentage of the amounts received; - in a fixed amount or in the form of savings between the amounts received from investors and actually spent by the customer-developer. The Resolution of the Federal Antimonopoly Service of the West Siberian District dated May 25, 2009 N F04-2769/2009(6042-A45-49) sets out the legal position of the court on a tax dispute regarding the formation of taxable objects from a developer . When considering the issue of calculating income tax, the court found that: - according to the developer’s accounting policy, the financial result is investment savings after complete completion of the work (the financial result for the project is defined as the difference between investments and the actual costs of constructing the project); — investment contributions received from investors and construction costs from these funds, including the maintenance of the developer’s service, cannot be considered as ordinary income and expenses of the developer; - since the economic benefit of the developer for profit tax purposes can be determined only after the completion of the construction of a specific object (apartment building) in the form of a positive difference (savings) between the investments received and the actual costs, then the additional charge of income tax to the developer is unlawful. When considering the issue of calculating VAT, the court came to the following conclusions: - the basis for additional VAT assessment to the developer was the fact that the tax authority considered the amount of costs for maintaining the service of the customer-developer in the relevant tax periods as the amount of revenue from the sale of the customer’s services; — funds received by the developer from individuals and legal entities under equity participation agreements in the construction of residential buildings are of an investment nature (the developer’s responsibility included the construction and commissioning of facilities, the accumulation of investor funds to finance construction, and the transfer of apartments to shareholders); — the maintenance of the customer-developer’s service is an integral part of the total amount of capital investments (investments) in the construction of the facility, therefore the expenses in this part are of the same investment nature as all other expenses (funds) provided for by the consolidated estimate; — receipt of investment contributions and their use for their intended purpose until the completion of construction does not lead to the emergence of a taxable object and is not taken into account when determining the base for calculating VAT for the developer. Thus, the amounts received by the developer from investors should not be fully included in the base for calculating VAT . However, the following questions arise: - when is the basis for calculating VAT for the developer formed? — in what amount is the base for calculating VAT formed? According to the Ministry of Finance of Russia (Letter dated June 25, 2008 N 07-05-06/142), the moment of determining the VAT base for the provision of services over a long period of time should be considered the earliest of the dates: the day of payment (partial payment) on account of the upcoming provision of services or the last day of the tax period in which these services are provided. How to determine the cost of services provided by the developer under a continuing contract? It all depends on the terms of the contract. If the remuneration is set as a percentage of the amounts received or as a fixed fixed amount for the quarter, then this amount forms the basis for calculating VAT. The situation is more complicated if the developer's remuneration is set in the form of savings for the developer , which is actually determined only after the completion of the investment project and the transfer of the property to the investor. Tax authorities sometimes insist that the developer determine the base for calculating VAT based on expenses for its own maintenance, reflected in the debit of accounts 20 “Main production” or 26 “General expenses”. In the Resolution of the Federal Antimonopoly Service of the Far Eastern District dated October 24, 2008 N F03-4588/2008, it is noted that the basis for additional VAT assessment was the conclusions of the tax authority that the taxpayer understated the VAT base by the amount of revenue from the sale of services for the implementation of the functions of the customer-developer, and the costs reflected in account 26 “General business expenses”, he qualified as revenue from the sale of services, which is included in the VAT base. It should be noted that in such situations, tax authorities, as a rule, lose in arbitration courts. The courts recognize that if the contract determines the remuneration in the amount of savings, then the tax base arises only upon completion of the entire investment project and is equal to the amount of actual savings (Resolution of the Federal Antimonopoly Service of the West Siberian District dated October 14, 2010 in case No. A27-25524/2009, dated October 15 .2010 in case No. A46-23193/2009). Consequently, the amount of savings forms the developer’s basis for calculating VAT (Letter of the Ministry of Finance of Russia dated March 25, 2008 N 03-07-10/02; Resolutions of the Federal Antimonopoly Service of the East Siberian District dated August 31, 2010 in case N A78-9180/2009; Ural District dated 01/29/2010 No. F09-11382/09-C2 in case No. A60-20097/2009-C10, etc.).

VAT, Organization of tax accounting

Question about VAT

Imagine that a developer is building a residential apartment building. This house has non-residential premises, and funds for construction are raised under equity participation agreements.

After the house is built, in addition to the residential space under the contracts, the developer also transfers “outside storage rooms” to the participants in shared construction. These premises are contracted as a basement and are intended for personal use.

Value added tax is not imposed on the services of a developer on the basis of an agreement for participation in shared construction, which was concluded in accordance with Federal Law dated December 30, 2004 N 214-FZ (clause 23.1, clause 3, article 149 of the Tax Code of the Russian Federation).

The exception is the developer’s services, which he provides during the construction of industrial facilities. Such services are subject to VAT. Industrial objects include objects intended for use in the production of goods, performance of work, and provision of services.

Note that the services of the developer, that is, the owner of land plots under lease or ownership rights, are not taxed.

The object of shared construction is residential or non-residential premises, common property in an apartment building. They are transferred to the participant in shared construction after receiving permission to put the apartment building into operation. Such premises are part of an apartment building, which is being built with the funds of a participant in shared construction (clause 2 of Article 2 N 214-FZ).

In case of bankruptcy of the developer, the housing cooperative is obliged to accept shareholders
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On the investor’s right to deduct VAT from the developer’s savings amount

It is known that the developer’s actual construction costs in terms of the share transferred to the investor may differ from the amount of his investment contribution. If construction costs are less than the amount of the investment contribution, then the resulting difference is either returned to the investor (in whole or in part), or remains at the disposal of the developer as his income (this nuance is determined by the parties in the contract).

In the latter case, according to the tax authorities, the amount of savings is recognized by the developer as subject to VAT <1>. Can an investor claim this amount of tax as a deduction in the part related to his share in the construction of the facility?

<1> Within the framework of this article, we will not analyze the legitimacy of this position.

Situation one

The agreement between the investor and the developer does not specify the latter’s remuneration, but it is stipulated that savings during construction in the form of the difference between the amount of funds received from the investor (shareholder) and the actual costs after putting the facility into operation remain with the developer. In this case, the initial cost of the fixed asset item (or goods for resale) in the form of a share in the finished building will be formed by the investor based on the amount of the investment contribution transferred to the developer, which includes the developer’s remuneration. This procedure complies with the requirements of clauses 7 and 8 of PBU 6/01 “Accounting for fixed assets” <2> (or clauses 5 and 6 of PBU 5/01 “Accounting for inventories” <3>).

<2> Approved by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n. <3> Approved by Order of the Ministry of Finance of Russia dated 06/09/2001 N 44n.

The developer will, in accordance with the generally established procedure, provide the investor with a consolidated invoice and an invoice for the amount of his remuneration. Accordingly, the investor will, as usual, have the right to deduct all VAT presented by the developer. Thus, if the documents are properly prepared, the investor should not have any problems with deductions.

Stages of work on an escrow account and their reflection in accounting.

Opening an escrow account

The buyer of real estate provides the concluded agreement for participation in shared construction to the bank and opens an escrow account. The developer provides the bank with title documents. The bank, buyer and developer sign a tripartite agreement, which stipulates the validity of the escrow account and the conditions for transferring ownership of the account from the buyer to the seller. In shared-equity construction, the conditions are: putting the house into operation and obtaining ownership of the apartment by at least one of the participants in the construction.

Money transfer

The buyer of real estate deposits an amount of money into the escrow account, which must be transferred to the developer after the conclusion of the purchase and sale transaction.

We will demonstrate how to reflect these operations in the BIT.CONSTRUCTION program.

In accounting, we reflect this information on off-balance sheet account 009

Dt 009.SE “Funds of shareholders in escrow accounts.”

For more accurate accounting, subaccount 009.SE has been added to the BIT.CONSTRUCTION program.

Deal

The seller and buyer, without the participation of the bank, carry out the intended purchase and sale transaction.

This transaction is not reflected in accounting.

Obtaining a loan by the developer as part of project financing

Interest accrual for using a loan

Transfer of documents

The developer provides the bank with a certificate of completion of work and documents for putting the house into operation, which confirm the fulfillment of the conditions under the contract.

Transfer of an apartment to a shareholder

The transfer of apartments is reflected in the documents “Permission to put the facility into operation” and “Acceptance and transfer certificate of premises”.

Proceeds from the sale of an apartment

The proceeds from the sale of an apartment are the difference between the contract price and the construction cost.

Proceeds from the sale are reflected in the document “Closing account 86.33”

Accrual of the right to use the account

The bank verifies the submitted documents. If everything is in order with them, the right to use the escrow account is transferred from the buyer to the seller.

The bank offsets funds from the escrow account to repay the target loan

Withdrawal of funds

The developer has the right to withdraw funds from the account and transfer them to his own. The escrow account is closed.

Situation two (problematic)

Let’s assume that in the contract the parties stipulated the amount of the developer’s remuneration and indicated that the resulting savings remain at his disposal (in whole or in part). According to the Ministry of Finance and tax authorities, the developer must qualify these savings as amounts received to increase income or otherwise associated with payment for goods (work, services) sold, and be subject to VAT on the basis of paragraphs. 2 p. 1 art. 162 of the Tax Code of the Russian Federation.

As in the first case, the investor will take into account (as part of fixed assets or goods) a share in the building at its original cost, which includes all construction costs, including the amount of savings that are not refundable by the developer. However, the investor cannot claim a VAT deduction on this amount of savings. This position is shared not only by regulatory authorities, but also by many tax experts.

Nevertheless, it is possible to defend the right to deduction in court. Confirmation of this is the Resolution of the FAS UO dated 05.05.2009 N F09-2053/09-C2. It follows from the document that the taxpayer prevailed three times - in the court of first, appellate and cassation instances (the inspectorate twice failed to get the decision of the arbitration court of first instance overturned). Let us briefly present the essence of the dispute.

An investment agreement has been concluded between the taxpayer (investor) and the developer, the subject of which is joint participation in the construction of a multi-apartment residential building with an underground parking lot and non-residential premises on the 1st floor. Under the terms of this agreement, the investor finances construction in order to obtain ownership of offices for use in his business activities. The agreement stipulates that the full amount of savings during construction remains with the developer.

The developer transferred the non-residential premises to the investor under a transfer and acceptance certificate, from which it also followed that payment under the investment agreement had been made in full.

Developer accounting. Three important aspects

The ownership of real estate objects was registered by the investor in the prescribed manner, which was confirmed by certificates of state registration of rights.

The developer issued two invoices to the investor: one for the cost of its own services, the second for the amount of construction costs and the savings obtained. The investor submitted the total amount of VAT for deduction.

The tax authority, based on the results of a desk audit of the declaration, denied the right to deduct tax attributable to the amount of savings, citing the fact that the amount of savings the developer made during construction does not apply to construction services.

The judges of the FAS UO proceeded from the following. Finished real estate objects are accepted by the investor for accounting in the amount of value determined by the investment agreement, including the amount of savings of the developer. Payments were made by bank transfer, which is confirmed by a certificate from a credit institution about the flow of funds in the taxpayer’s account. Some of the premises are used in the activities of the taxpayer, others are sold to a third party.

According to paragraph 2 of Art. 153 of the Tax Code of the Russian Federation, when forming the tax base, proceeds from the sale of goods (work, services) are determined based on all income of the taxpayer associated with payments for the specified goods (work, services) received by him in cash and (or) in kind, including payment in valuables papers. By virtue of paragraphs. 2 p. 1 art. 162 of the Tax Code of the Russian Federation, the tax base determined in this way increases by amounts received for goods (work, services) sold in the form of financial assistance, to replenish special-purpose funds, to increase income, or otherwise related to payment for goods (work, services) sold. .

Based on the above circumstances and the above provisions of tax legislation, the financial result obtained by the developer, including in the form of saving investment funds, is its revenue and is subject to accounting for tax purposes.

After the completion of construction of the objects and their delivery to the investor, the developer’s services are considered provided and the developer, having received savings on investment funds and leaving them at his disposal, is obliged to calculate VAT on the amount of these savings. (In this case, the object of taxation is the provision of services by the developer during the construction of real estate.)

In accordance with paragraph 1 of Art. 171 of the Tax Code of the Russian Federation, the taxpayer has the right to reduce the total amount of tax by the amount of tax deductions. According to paragraph 1 of Art. 172 of the Tax Code of the Russian Federation, tax deductions are made on the basis of invoices issued by sellers when purchasing goods (works, services). In this case, only those amounts of tax that are presented to the taxpayer after the purchased goods (works, services) have been registered and in the presence of the corresponding primary documents are subject to deductions. By virtue of paragraph 1 of Art. 169 of the Tax Code of the Russian Federation, an invoice is a document that serves as the basis for the buyer to accept tax amounts presented by the seller of goods (works, services) for deduction.

The courts have established and the case materials have confirmed that the above conditions for applying the deduction by the investor are met, and the invoices comply with the requirements set out in Art. 169 of the Tax Code of the Russian Federation. Taking into account the fact that the controversial transactions in accordance with paragraphs. 2 p. 1 art. 162 of the Tax Code of the Russian Federation are subject to VAT and the investor complies with the procedure and conditions for applying deductions provided for in Art. Art. 171 and 172 of the Tax Code of the Russian Federation, the decision of the tax authority regarding the refusal to refund VAT is invalid. This was the verdict of the cassation court.

Note! As a basis for refusal to deduct VAT accrued by the counterparty in accordance with the requirements of paragraphs. 2 p. 1 art. 162 of the Tax Code of the Russian Federation, inspectors usually use a reference to clause 19 of the Rules for maintaining purchase books and sales books <4>, which states that in this case the invoice is issued in one copy and is registered by the recipient of the money in the sales book. In relation to the situation under consideration, the inspectors will insist that the developer must issue a single invoice for the amount of savings remaining at his disposal and reflect it in his sales book. Accordingly, without having another copy of this invoice in hand, the investor is deprived of the right to deduction.

<4> Rules for maintaining journals of received and issued invoices, purchase books and sales books when calculating value added tax, approved. Decree of the Government of the Russian Federation dated December 2, 2000 N 914.

The following can be used as a counterargument. The procedure and conditions for submitting VAT for deduction are established directly by the Tax Code, and the Government of the Russian Federation does not have the right to make any additions to them. As we saw from the example of the FAS Resolution No. F09-2053/09-C2 dated 05.05.2009, an investor has a chance to defend the right to tax savings on VAT.

Court verdict: VAT must be claimed as a deduction as the construction progresses

The Arbitration Court of the North-Western District, in Resolution No. A52-100/2019 dated October 31, 2019, recognized that the right to deduct VAT amounts paid during the construction of real estate does not depend on the moment the property was put into operation.

Subject of dispute

: organizations were denied VAT deduction on a constructed real estate property. The basis for the refusal was the expiration of the three-year period for presenting the tax for deduction. Thus, the Federal Tax Service found that this period was calculated from the moment the facility was put into operation, which contradicts the Tax Code of the Russian Federation. The inspectorate's decision was challenged in court.

What were they arguing about?

: 774,215 rubles.

Who did win

: tax authorities.

In court, the organization insisted that before the commissioning of the constructed structure, it had no grounds for applying tax deductions.

This was explained by the fact that the costs of the work were taken into account during the construction and manufacture of the fixed asset and accepted for accounting only when forming the value of the fixed asset object on the basis of the act of acceptance and transfer of the building. Accordingly, it was from this moment that the 3-year period for applying the deduction should have been calculated.

The cassation court found these arguments unfounded, and the decision of the Federal Tax Service was legal. The law does not exclude the possibility of deducting VAT amounts outside the tax period in which the goods and work purchased by the payer were actually received and registered (Article 172 of the Tax Code of the Russian Federation).

Paid VAT can be reimbursed to the taxpayer in later periods, except for cases where a tax return with the claimed deduction was filed 3 years after the end of the relevant tax period (clause 2 of Article 173 of the Tax Code of the Russian Federation).

The moment of submitting VAT for deduction is associated with the registration of purchased goods, works and services. The deduction itself is made during the period of transactions for the acquisition of such goods, works and services. The right to receive a VAT deduction is not determined by the moment the constructed facility is put into operation.

The organization had the right to apply tax deductions for work performed as acceptance certificates for work performed were signed and invoices issued by contractors were received.

In the controversial case, certificates of completed work and invoices began to be issued by contractors in the first year of construction work. Consequently, the conditions for claiming VAT for deduction were already met during the specified tax periods.

There was nothing stopping the organization from declaring deductions during these periods. Accordingly, the court concluded, the Federal Tax Service justifiably refused to provide her with tax deductions for the facility put into operation.

* * *

Unfortunately, we were unable to find other judicial acts on the issue of the legality of an investor’s deduction of VAT charged by the developer on the amount of savings received. The disadvantage is obvious - the said Resolution is an isolated one. But there are also advantages. Firstly, (we repeat) the investor was supported by all three courts that considered the tax dispute. Secondly, there are also no court decisions negative for taxpayers-investors.

The general conclusion is the following. The risk for an investor who accepts this amount of VAT as a deduction is great. However, in the situation that became the subject of analysis by the FAS UO, the taxpayer went for it and saved almost 5 million rubles. Let us recall that in the event of an unfavorable outcome of the trial, the investor would have to pay an additional fine of 20% of the amount of the tax wrongfully claimed for deduction (Article 122 of the Tax Code of the Russian Federation) and a penalty for each day based on one three hundredth of the refinancing rate of the Central Bank of the Russian Federation in force at that time (Article 75 of the Tax Code of the Russian Federation).

T.Yu.Koshkina

Magazine editor

"Construction:

Accounting

and taxation"

Tax obligations for VAT for a developer constructing an apartment building

These expenses can be included in the design and estimate documentation or reimbursed on a separate basis (for example, travel expenses of the customer associated with the purchase of equipment, work and services, insurance of the construction site, etc.). Otherwise, if the costs are not included in the design and estimate documentation and are not reimbursed by the investor on a separate basis, then they cannot be taken into account in the cost of the facility under construction.

The list of costs that do not increase the cost of fixed assets (including during construction) is given in clause 3.1.7 of the Regulations on accounting for long-term investments, approved by Letter of the Ministry of Finance of Russia dated December 30, 1993 N 160 (hereinafter referred to as Regulation N 160). This Regulation applies to the extent that it does not contradict later regulatory documents on accounting (Letter of the Ministry of Finance of Russia dated November 15, 2002 N 16-00-14/445).

Costs that do not increase the cost of fixed assets are divided into two groups:

provided for in the consolidated construction cost estimates;
not included in the consolidated construction cost estimates.

The composition of costs that do not increase the cost of construction is established by clause 3.1.7 of Regulation No. 160. These, in particular, include those provided for in construction estimates:

costs for training operational personnel for the main activities of enterprises under construction (Chapter 11 of the consolidated estimate) <*>;
expenses associated with reimbursement of the cost of buildings and plantings demolished during the allocation of land plots for construction (Chapter 1 of the consolidated estimate) <*>, etc.

<*> See Appendix 8 to the Resolution of the State Construction Committee of Russia dated March 5, 2004 N 15/1 “On the approval and implementation of the methodology for determining the cost of construction products on the territory of the Russian Federation.”

Costs not included in the consolidated construction cost estimates include, in particular:

construction conservation costs;
expenses for the payment of interest, fines, penalties and penalties for violations in financial and economic activities, etc.

According to clause 3.2.5 of Regulation No. 160, costs that do not increase the cost of fixed assets are written off from the capital investment account at the expense of the provided sources of financing as the relevant work or operations are completed. However, at present, when forming the initial cost of fixed assets, including completed construction, it is necessary to be guided by the norms of the Accounting Regulations “Accounting for Fixed Assets” PBU 6/01, approved by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n, in paragraph 8 of which it is determined that the initial cost of a fixed asset item is formed based on the entire amount of actual costs associated with its construction.

Thus, when deciding whether to include these costs in the cost of a facility under construction, it is necessary to analyze whether these costs are directly related to the facility under construction. At the same time, expenses under clause 3.1.7 of Regulation No. 160, which did not increase the cost of fixed assets earlier, are not taken into account in the initial cost of objects at the present time. In this case, costs that do not increase the cost of the construction project must be taken into account in a separate subaccount 08 “Investments in non-current assets”.

Traps in the developer’s VAT declaration: which items to fill out in which cases and how

Types of packaging

The concept of “packaging” is given in clause 3.1.1 of the National Standard of the Russian Federation GOST 17527-2014 (ISO 21067:2007) “Packaging.
Terms and definitions”, modified in relation to the International Standard ISO 21067:2007 “Packaging. Dictionary". Packaging is understood as a product intended to house, protect, move, deliver, store, transport and display products (raw materials and finished products), used both by the manufacturer, user or consumer, and by the processor, assembler or other intermediary. This document describes the concepts of various types of packaging:

consumer packaging is packaging intended for primary packaging and sale of products to the final consumer;
commercial packaging means original (branded) packaging, which in terms of quantity of contents, type, quality and design meets the requirements of the appropriate level of trade;
industrial packaging is packaging for raw materials, parts and semi-finished or finished products for delivery from the manufacturer to the consumer and/or other intermediaries such as processing or assembly plants;
Transport packaging means packaging intended for storing and transporting products in order to protect them from damage during movement and forming an independent transport unit.

Packaging, as we see, is a means (or set of means) that protects products from damage and loss, from environmental influences and contamination during transportation, storage and sale. The main element of any packaging is the container. Container is understood as a packaging element intended to contain products.

Packaging requirements are determined by the contract

Requirements for packaging of goods may be reflected separately in the purchase and sale agreement. The obligation to use containers and packaging is imposed on the seller and civil law. Thus, the seller is entrusted with the obligation to transfer the goods to the buyer in appropriate containers and (or) packaging, unless otherwise provided by the sales contract or does not follow from the essence of the obligation. The only exception to this rule is the transfer of goods, which by their nature do not require packaging and (or) packaging (clause 1 of Article 481 of the Civil Code of the Russian Federation).

The goods are packaged and (or) packaged by the seller in the usual way for such goods, unless the purchase and sale agreement stipulates special requirements for containers or packaging of goods. If the usual packaging method is not available, then the seller packs the goods in a way that ensures the safety of the goods under normal conditions of storage and transportation (Clause 2 of Article 481 of the Civil Code of the Russian Federation).

Delivery of goods without proper containers or packaging is fraught with negative consequences for the seller. In the event that a product to be packaged and (or) packaged is transferred to the buyer without containers and (or) packaging or in improper containers and (or) packaging, the buyer has the right to demand from the seller (clause 1 of Article 482 of the Civil Code of the Russian Federation): to package and (or) ) pack the goods; replace improper containers and (or) packaging.

Instead of the above, the buyer has the right to present to the seller claims arising from the transfer of goods of inadequate quality (clause 2 of Article 482 of the Civil Code of the Russian Federation). The consequences of transferring goods of inadequate quality are established by Art. 475 of the Civil Code of the Russian Federation. These are: requirements for a proportionate reduction in the purchase price of the goods or replacement of the goods with appropriately packaged ones, or the right to refuse to execute the sales contract subject to the return of the received goods.

Requirements for selling goods at retail

Retailers are subject to special requirements regarding the packaging of the goods they sell. The provisions of the RF Law of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights” and other legal acts adopted in accordance with it (clause 5, Article 454, paragraph 3, Article 492 of the Civil Code of the Russian Federation). Such other legal acts, in particular, are the Rules for the sale of certain types of goods, a list of durable goods that are not subject to the buyer’s requirement to provide him with a similar product free of charge for the period of repair or replacement, and a list of non-food goods of adequate quality that are not subject to return or exchange for similar goods of other sizes, shapes, dimensions, styles, colors or configurations, approved by Decree of the Government of the Russian Federation of January 19, 1998 No. 55 (hereinafter referred to as the Rules).

In accordance with clause 35 of the Rules, loose food products must be transferred to the buyer in packaged form without charging additional packaging fees. For packaging it is necessary to use materials that meet the mandatory requirements established by the legislation of the Russian Federation.

The need to supply food raw materials and food products that do not have packaging in packaging materials (paper, bags, etc.) or in clean consumer containers is also indicated in clause 8.11 of the Sanitary Rules “Sanitary and epidemiological requirements for trade organizations and turnover in them food raw materials and food products. SP 2.3.6.1066-01”, approved by the Chief State Sanitary Doctor of the Russian Federation on September 6, 2001 (hereinafter referred to as the Sanitary Rules).

The Sanitary Rules also establish requirements for the sale of products in packaging. For example, the fact that bread and bakery products in places of small retail trade must be sold only in packaged form is stated in clause 37 of the Rules, clause 9.6 of the Sanitary Rules.

Accounting with manufacturers

Accounting

From an accounting point of view, packaging refers to inventories, when accounting for which, first of all, one should be guided by FSBU 5/2019 “Inventories”, as indicated by Art. 5 and 21 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”. Materials are a type of inventory that is necessary in the production of products, performance of work or provision of clause 3 of FSBU 5/2019). Materials are accepted for accounting at actual cost, unless otherwise established by FSBU 5/2019 (clause 9 of FSBU 5/2019). The procedure for determining the cost of materials depends on the method and conditions for acquiring such inventories. Thus, when materials are received under sales and purchase agreements, supply agreements, and other similar agreements, the actual cost of materials includes the actual costs of acquiring them, bringing them to the condition and location necessary for consumption, sale or use (clause 10 of FSBU 5/2019) .

The basis for accepting materials for accounting is the purchase and sale agreement for materials, as well as primary accounting documents confirming the fact of transfer of the relevant accounting objects. Packaging materials in accounting in organizations carrying out production activities are accounted for on account 10 “Materials”, subaccount 4 “Containers and packaging materials”, subaccount of the second level “Packaging materials” (Instructions for using the Chart of Accounts).

If operations for the sale of packaged goods or products are subject to VAT, then the organization has the right to claim for tax deduction the amount of VAT presented by the supplier of packaging materials. To do this, you must have an invoice and documents confirming their actual registration (clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation).

The economic fact of purchasing packaging materials is reflected in accounting as follows:

Debit 10-4 (15) Credit 60 – reflects the cost of purchased packaging materials;
Debit 19 Credit 60 – the amount of VAT presented by the supplier of materials has been allocated.

In some cases, industrial enterprises independently produce disposable containers for packaging their products. The costs of its production in this case are taken into account on account 23 “Auxiliary production”:

Debit 23 Credit 10, 60, 68, 69, 70... - reflects the costs of manufacturing packaging for manufactured products.

The finished container is written off at the actual cost of production using the accounting entry:

Debit 10-4 Credit 23 – reflects the cost of manufactured packaging.

The transfer of packaging materials for their direct use is documented by primary accounting documents. As such, an independently developed form is used, but when using unified forms of primary documents, it is advisable to use the invoice requirement (form No. M-11, approved by Resolution of the State Statistics Committee of Russia dated October 30, 1997 No. 71a).

Packaging of finished products from these organizations can be carried out during the production process or done after the finished products are transferred to the warehouse.

If the packaging of finished products is carried out directly in the production departments of the organization before they are delivered to the finished product warehouse, then the cost of packaging materials is included in the production cost of the finished product. The following entry is made in accounting:

Debit 20 Credit 10-4 – the cost of packaging materials transferred to the main production workshops is written off.

If packaging is carried out after the finished product has arrived at the warehouse, then the costs of its acquisition are included in business expenses. Commercial expenses include expenses associated with the sale of goods, products, works and services for ordinary activities (clause 5 of PBU 10/99, clause 21 of FSBU 5/2019, subparagraph “b”, clause 28 of the Regulations on accounting and accounting reporting, Appendix to the Letter of the Ministry of Finance of Russia dated December 28, 2016 No. 07-04-09/78875, Instructions for using the Chart of Accounts). In accounting, this operation is reflected by the entry:

Debit 44 “Sales expenses” Credit 10-4 - the cost of packaging materials used to package finished products transferred to the warehouse is taken into account.

Selling expenses on a monthly basis in whole or in part (when distributing commercial expenses between sold and unsold products (goods)) are written off from account 44 “Sales expenses” to the debit of account 90 “Sales”, subaccount 90-2 “Cost of sales” (clause 9 of PBU 10 /99, Instructions for using the Chart of Accounts).The write-off procedure is established in the accounting policy of the organization (clause 20 of PBU 10/99). Features of classifying expenses as commercial and the procedure for their write-off are established by industry methodological instructions, recommendations, guidelines (clause 10 of PBU 10 /99, Letter of the Ministry of Finance of Russia dated April 29, 2002 No. 16-00-13/03).

If packaging costs, together with other expenses reflected in account 44, are partially included in expenses for ordinary activities, then they are distributed monthly between sold and finished products. In this case, the organization has the right to use various indicators for distribution: production cost, volume, weight, etc. The selected indicator is indicated in the accounting policy of the economic entity.

Tax accounting

One of the components of costs associated with production and (or) sales is material costs (Articles 253 and 254 of the Tax Code of the Russian Federation). Material costs include, in particular, the costs of purchasing materials used for packaging and other preparation of manufactured and (or) sold goods (including pre-sale preparation). Such expenses are classified as indirect; they are fully taken into account in the current reporting (tax) period (clause 2 of Article 318 of the Tax Code of the Russian Federation). They are recognized for tax purposes in accordance with paragraph 2 of Art. 272 of the Tax Code of the Russian Federation for organizations producing products - on the date of transfer of packaging material to production.

Accounting in trade

Accounting

When maintaining accounting records of goods, you should be guided by the requirements and recommendations: FSBU 5/2019 “Inventories”, Methodological recommendations for accounting and registration of operations for the receipt, storage and release of goods in trade organizations, approved. Letter of Roskomtorg dated July 10, 1996 No. 1-794/32-5, which are used by trade organizations (to the extent that does not contradict FSBU 5/2019).

Accounting for materials purchased for packaging in trade organizations is similar to the accounting rules for manufacturers. The only difference is that trade organizations, to account for the cost of containers of all types, which includes packaging materials, use account 41 “Goods”, subaccount 3 “Containers under goods and empty”, subaccount of the second level “Packaging materials” (instructions for use chart of accounts).

The procedure for accounting by the seller for the cost of packaging depends on when and by whom the goods intended for sale are packaged. Moreover, packaging, the cost of which is not charged to the buyer when selling goods, can be taken into account by the seller in two ways - it all depends on when the goods intended for sale are packaged.

If packaging and packaging of goods is carried out by the original seller upon purchase, then the cost of packaging materials is included in the increase in the cost of goods. The actual costs of purchasing goods also include the actual costs of acquiring (creating) inventories, bringing them to the condition and location necessary for consumption, sale or use (sub-clause “g” clause 3, clause 10 of FSBU 5/2019) .

In the process of selling food products, retailers often package them. For example, having received bulk goods in bags (cereals, sugar, etc.), store employees pack the goods in small batches (for example, 1 kg each). For packaging, plastic and paper bags, polymer substrate, polyethylene film or other packaging materials are used. Typically, packaging of goods is carried out during pre-sale preparation.

Paragraph 11 of FSBU 5/2019 notes that the cost of inventories includes the costs of bringing inventories to a state in which they are suitable for use for the intended purposes. These costs include the organization's costs for refining, sorting, packaging and improving the technical characteristics of inventories. Therefore, in such cases, the following entry is made in accounting:

Debit account 41 “Goods”, subaccount 1 “Goods in warehouses”
Credit to account 41 “Goods”, subaccount 3 “Containers under goods and empty”, subaccount “Packaging materials” - the actual cost of goods is increased by the amount of packaging costs.

If the buyer reimburses the retailer for the cost of packaging (foil, decorative wrapping paper, gift boxes, plastic or paper bags, etc.) separately from the cost of the goods, then the seller must account for the packaging material as a separate item.

As a rule, accounting of goods at retail trade enterprises is carried out in sales prices of markups (clause 20 of FSBU 5/2019). If packaging material is sold as a separate product, then it is necessary to mark it up and issue a price tag, just like for all other products. After the accountant calculates the value of the trade margin, he will need to make the following entry:

Debit of account 41 “Goods”, subaccount 1 “Goods in warehouses” Credit of account 42 “Trade margin” - reflects the value of the trade margin for packaging material sold as an independent product.

Then, when the packaging material is transferred to the sales floor as an independent product, the following entry must be made:

Debit of account 41 “Goods”, subaccount 2 “Goods in retail trade” Credit of account 41 “Goods”, subaccount 1 “Goods in warehouses” - reflects the cost of goods transferred to the sales floor.

When the packaging material is purchased and paid for through the store’s cash register, its cost is written off to the debit of account 90 “Sales”, subaccount 2 “Cost of sales” with the following entries:

Debit account 90 “Sales”, subaccount 2 “Cost of sales” Credit account 41 “Goods”, subaccount 2 “Goods in retail trade” - the cost of packaging material is written off;
Debit account 90 “Sales”, subaccount 2 “Cost of sales” Credit account 42 “Trade margin” - the amount of the trade margin on goods sold is reversed.

Trade organizations, as mentioned above, are required to sell individual loose food products, fabrics, clothing, fur goods, and shoes in packaged form. Moreover, in this case the buyer should not be charged an additional fee for packaging. Taking this into account, in trade organizations the cost of packaging materials - paper, parchment, film made of polymer materials, plastic bags, etc., with the exception of the case when packaging and packing of goods is carried out at the time of its acceptance for registration, is included in distribution costs.

Such expenses can be taken into account as part of the costs under the item “Costs for containers, storage, processing, sorting and packaging of goods.” This is stated in paragraph 2.10 of the Methodological Recommendations for accounting of costs included in distribution and production costs, and financial results at trade and public catering enterprises, approved by Roskomtorg on April 20, 1995 No. 1-550/32-2. Let us note that these methodological recommendations were at one time communicated to the divisions of tax authorities by Letter of the State Tax Service of the Russian Federation dated May 10, 1995 No. YuB-6-17/256. Moreover, the latter had to accept them as management during income tax audits.

In connection with the entry into force of Ch. 25 of the Tax Code of the Russian Federation, the tax department canceled its letter from January 1, 2002 (Letter of the Ministry of Taxes of the Russian Federation dated 06.06.2002 No. VG-6-02/800). Meanwhile, this only concerns tax accounting. In accounting, it is quite appropriate to continue to use the mentioned methodological recommendations to the extent that they do not contradict regulatory legal acts. The Letter of the Ministry of Finance of Russia dated April 29, 2002 No. 16-00-13/03 noted that trade organizations can use the specified document for accounting until the completion of the development and approval of relevant industry regulations.

Write-off of spent packaging can be carried out on the basis of the act of consumption of packaging materials or the norms of expenditure of each unit of packaging (in pieces, meters, etc.) approved by the organization per unit (certain quantity) of a specific type of goods (clauses 1, 2, 4 of Article 9 of the law about accounting).

Tax accounting

If packaging is sold as a separate product, then the cost of packaging as a direct expense reduces the income received from its sale (subclause 3, clause 1, article 268, clause 3, article 320 of the Tax Code of the Russian Federation). Income from the sale of such goods is determined based on the amount of revenue for the packaging sold, excluding VAT amounts (clause 1 of Article 248, clause 1 of Article 249 of the Tax Code of the Russian Federation).

Packaging costs for trade organizations in other cases are also considered indirect. In trading, direct expenses recognize only the cost of purchased goods sold in a given reporting (tax) period and the amount of expenses for the delivery of purchased goods to the warehouse, if they are not included in the purchase price. All other expenses are recognized as indirect expenses and reduce income from sales of the current month (Article 320 of the Tax Code of the Russian Federation). Trade organizations that use the accrual method recognize the costs of packaging goods as part of their taxable expenses on the date of their release (clause 2 of Article 272 of the Tax Code of the Russian Federation).

Accounting and Taxation

Let's consider the most common types of costs, which, according to Regulation No. 160, should not increase the cost of the facility under construction.

Costs of training operational personnel for the main activities of enterprises under construction. These costs during the construction process can be included in deferred expenses (account 97 “Future expenses”). Subsequently, after completion of construction, the organization independently determines the algorithm for writing off these costs. This algorithm and the procedure for writing off to accounting accounts must be recorded in the organization’s accounting policies.

In accordance with Art. 252 of the Tax Code of the Russian Federation (TC RF), these costs can be considered economically justified, since the construction project will be used for the production purposes of the organization. According to paragraph 1 of Art. 272 of the Tax Code of the Russian Federation, expenses are recognized in the reporting (tax) period in which they arise based on the terms of transactions. If the transaction does not contain such conditions and the relationship between income and expenses cannot be clearly defined or is established indirectly, then the expenses are distributed by the organization independently.

Example. The organization is building a production line. During the construction process, it trains personnel to produce products on a given production line.

The cost of training was 236,000 rubles, including VAT - 18%. The accounting policy stipulates that these expenses will be written off against the cost of manufactured products within three years after the production line is put into operation.

Accounting entries for employee training costs will look like this:

Dt sch. 97 Set count. 60 - 200,000 rub. — the cost of training employees to work on the production line is taken into account;

Dt sch. 19 K-t count. 60 - 36,000 rub. — VAT is allocated on the cost of training employees to work on the production line;

Dt sch. 68 Set count. 19 - 36,000 rub. — “input” VAT is accepted for deduction.

After the production line is put into operation, the following will be posted monthly:

Dt sch. 20 K-t count. 97 - 5556 rub. (RUB 200,000 / 3 years / 12 months) - part of the costs of training employees to work on the production line was written off.

Costs associated with reimbursement of the cost of buildings and plantings demolished during the allocation of land for construction. According to the author, these expenses should form the cost of the facility under construction both in accounting and tax accounting. This position is also supported by the Russian Ministry of Finance (Letters dated January 25, 2006 N 03-03-04/1/56, dated February 27, 2006 N 03-03-04/1/145).

Example. The organization is the customer-developer and is building a production facility. The land plot contains buildings that are purchased by the client-developer for subsequent demolition. These costs are provided for in the design and estimate documentation. The total cost of the redemption is 5 million rubles.

Accounting entries for reimbursement of the cost of purchased buildings will look like this:

Dt sch. 08 Set count. 76 - 5 million rubles. — reflects the cost of purchased objects for subsequent demolition;

Dt sch. 76 Set count. 51 - 5 million rubles. — the cost of purchased objects for subsequent demolition has been paid.

Funds transferred for the construction of objects by way of shared participation, if the constructed objects will be accepted by other organizations upon their commissioning. These costs should also increase the cost of the facility under construction, despite the fact that in Regulation No. 160 they are classified as those that do not increase the cost of construction. To avoid controversial situations, these costs must be directly provided for in the investment agreement and (or) design and estimate documentation.

For tax purposes, these costs also increase the cost of the facility under construction. This point of view is confirmed by the Ministry of Finance of Russia (Letter dated January 25, 2006 N 03-03-04/1/57).

Construction conservation costs; costs of demolition, dismantling and protection of objects interrupted by construction; expenses associated with the payment of interest, fines, penalties and penalties for violations in financial and economic activities. These expenses are taken into account for accounting and tax purposes almost identically, while these expenses are not included in the cost of the facility under construction. Expenses of the corresponding group are taken into account in the account. 91 “Other income and expenses.”

Expenses associated with maintaining the suitable condition of a given construction project during the conservation process can be taken to reduce the tax base for income tax in accordance with paragraphs. 20 clause 1 art. 265 Tax Code of the Russian Federation. Expenses for demolition, dismantling and protection of objects can be reduced for tax purposes on the basis of paragraphs. 8 clause 1 art. 265 Tax Code of the Russian Federation. Expenses associated with the payment of interest, fines, penalties and penalties for violations in financial and economic activities can be reduced for income tax purposes on the basis of paragraphs. 13 clause 1 art. 265 Tax Code of the Russian Federation.

Let's consider the procedure for accounting and tax accounting of costs that are not reimbursed by the investor to the customer-developer (general contractor). To correctly reflect these transactions in the accounting accounts, it is necessary to analyze the provisions of the investment agreement and (or) design and estimate documentation. If the provisions of the investment agreement or design and estimate documentation do not contain a provision for reimbursement of the corresponding expenses, then the customer-developer (general contractor) compensates for these expenses at his own expense.

Non-reimbursable expenses of the investor will be taken into account for tax purposes by the customer-developer (general contractor) depending on the type of expense in accordance with the Tax Code of the Russian Federation. In the event that the investor reimburses expenses, these amounts will be transferred to the investor as part of the generated inventory value of the construction project.

Example. The Aktiv enterprise is an investor under an investment agreement for the construction of a warehouse for industrial purposes. The company "Passive" has a land plot on lease and is constructing this facility. During the month, the Passive enterprise incurred costs for insuring the construction project, which amounted to 118,000 rubles. (without VAT). Reimbursement of expenses by the investor is not provided.

The accounting records of the enterprise "Passive" to reflect the costs of insuring the object will look like this:

Dt sch. 97 Set count. 76 - 118,000 rub. — expenses for insurance of an unfinished construction project are reflected;

Dt sch. 20 (26, 91) Set count. 97 - part of the costs of insuring an unfinished construction project was written off.

Let’s assume that the investor reimburses insurance costs on a separate basis. As a result, the accounting entries for recording costs will look like this:

Dt sch. 08 “Reimbursable expenses of the investor” Set of accounts. 76 - 118,000 rub. — expenses for insurance of an unfinished construction project are reflected in accordance with the investment agreement.

After completion of construction and transfer to the investor:

Dt sch. 86 (76) Set of accounts. 08 “Reimbursable expenses of the investor” - 118,000 rubles. — the costs of insuring the construction project were transferred in accordance with the investment agreement.

What has changed in the taxation of developers under DDU

Types of packaging

consumer packaging is packaging intended for primary packaging and sale of products to the final consumer;
commercial packaging means original (branded) packaging, which in terms of quantity of contents, type, quality and design meets the requirements of the appropriate level of trade;
industrial packaging is packaging for raw materials, parts and semi-finished or finished products for delivery from the manufacturer to the consumer and/or other intermediaries such as processing or assembly plants;
Transport packaging means packaging intended for storing and transporting products in order to protect them from damage during movement and forming an independent transport unit.

Packaging requirements are determined by the contract

Requirements for selling goods at retail

Accounting with manufacturers

Accounting

The economic fact of purchasing packaging materials is reflected in accounting as follows:

Debit 10-4 (15) Credit 60 – reflects the cost of purchased packaging materials;
Debit 19 Credit 60 – the amount of VAT presented by the supplier of materials has been allocated.

Debit 23 Credit 10, 60, 68, 69, 70... - reflects the costs of manufacturing packaging for manufactured products.

The finished container is written off at the actual cost of production using the accounting entry:

Debit 10-4 Credit 23 – reflects the cost of manufactured packaging.

Packaging of finished products from these organizations can be carried out during the production process or done after the finished products are transferred to the warehouse.

Debit 20 Credit 10-4 – the cost of packaging materials transferred to the main production workshops is written off.

Debit 44 “Sales expenses” Credit 10-4 - the cost of packaging materials used to package finished products transferred to the warehouse is taken into account.

Tax accounting

Accounting in trade

Accounting

Debit account 41 “Goods”, subaccount 1 “Goods in warehouses”
Credit to account 41 “Goods”, subaccount 3 “Containers under goods and empty”, subaccount “Packaging materials” - the actual cost of goods is increased by the amount of packaging costs.

Debit of account 41 “Goods”, subaccount 1 “Goods in warehouses” Credit of account 42 “Trade margin” - reflects the value of the trade margin for packaging material sold as an independent product.

Then, when the packaging material is transferred to the sales floor as an independent product, the following entry must be made:

Debit of account 41 “Goods”, subaccount 2 “Goods in retail trade” Credit of account 41 “Goods”, subaccount 1 “Goods in warehouses” - reflects the cost of goods transferred to the sales floor.

Debit account 90 “Sales”, subaccount 2 “Cost of sales” Credit account 41 “Goods”, subaccount 2 “Goods in retail trade” - the cost of packaging material is written off;
Debit account 90 “Sales”, subaccount 2 “Cost of sales” Credit account 42 “Trade margin” - the amount of the trade margin on goods sold is reversed.

Tax accounting