Warranty repair and maintenance services: how to avoid paying VAT

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Most manufacturing and trading organizations provide customers with a guarantee on the goods they sell. Accounting for warranty repair costs for income tax purposes does not pose any problems. They can be taken into account as other expenses associated with production and sales (Subclause 9, clause 1, Article 264 of the Tax Code of the Russian Federation). As for VAT, warranty repairs and maintenance provided during the warranty period of operation of goods without charging an additional fee are not subject to VAT (Subclause 13, clause 2, Article 149 of the Tax Code of the Russian Federation). But the application of VAT exemption is associated with difficulties and disputes with tax authorities. Therefore, let’s take a closer look at who can use it and how.

Who is eligible for release?

There will be no problems with applying the exemption if you are: ( or ) a manufacturer of goods; ( or ) the seller, who himself sets the warranty period if the manufacturer has not done so, or assumes warranty obligations at the end of the manufacturer’s warranty period;

( or ) an organization that directly carries out warranty repairs (service centers and workshops), or a seller (distributor, dealer), who himself repairs goods during the manufacturer’s warranty period under an agreement with him (Letters of the Ministry of Finance of Russia dated March 31, 2011 N 03-11- 06/3/40, dated 07/29/2010 N 03-07-07/53, dated 05/12/2008 N 03-07-07/53; Letter of the Federal Tax Service of Russia for Moscow dated 03/17/2009 N 16-15/023683) . At the same time, repairs are free for the consumer, and the costs are covered by the manufacturer or seller.

Moreover, if you are authorized to carry out warranty repairs and receive compensation for this, but carry out the repairs by third parties, then you still have the right to apply the exemption. This conclusion follows from the explanations of the tax authorities (Letter of the Federal Tax Service of Russia for Moscow dated June 18, 2009 No. 16-15/61634), and the court agrees with this (Resolutions of the Federal Antimonopoly Service dated January 20, 2011 in case No. A55-9351/2010, dated June 29 .2010 in case No. A55-35014/2009).

Difficulties may arise if you are authorized to carry out warranty repairs, but delegate this responsibility to a third party, who then accepts claims from customers and arranges repairs. You simply receive compensation from the manufacturer and transfer it to the organization performing the repairs. The court may consider that in such a situation you are essentially an intermediary and do not have the right to release (Clause 7 of Article 149 of the Tax Code of the Russian Federation; Resolution of the Federal Antimonopoly Service of the Moscow Region dated May 17, 2010 N KA-A40/4585-10).

Warranty repair and maintenance services: how to avoid paying VAT

15.10.2009

Estimated reading time: 10 min.

Sergey Savseris 520

Among modern methods of bringing a product to the final buyer, a model in which a subject specializing in sales does not participate is an exception. Sellers often stimulate sales of the goods they sell by providing additional preferences to buyers. One of them is an increase in the warranty period established by the manufacturer.

This article discusses the possibility of exempting from VAT the sale of warranty repair and maintenance services within the period established by the seller of the goods beyond the warranty period established by the manufacturer.

The duration of the warranty period is a condition for exemption from VAT (level 1)

Within the meaning of sub. 13 clause 2 art. 149 of the Tax Code of the Russian Federation, in order to apply exemption from VAT in connection with the provision of warranty repair and maintenance services (hereinafter referred to as warranty repair services), the following conditions must be met:

— the service provided must consist of repairs and maintenance;

— the specified repairs and maintenance must be carried out during the warranty period of the goods;

— this service must be provided without charging additional fees to the buyer of the goods.

These conditions are perceived in the same way in arbitration practice (see resolution of the FAS Moscow District dated December 10, 2007 No. KA-A40/12621-07).

The concept of a warranty period in industry legislation (level 1)

In the Tax Code of the Russian Federation, the concept of “guarantee period” is not specifically defined for use in tax relations. Therefore, for tax purposes, it must be used in the meaning in which it is used in industry legislation (Clause 1, Article 11 of the Tax Code of the Russian Federation).

The relevant regulatory legal acts that can be relied upon when choosing the meaning of the concept “warranty period” applicable to tax legal relations include the Civil Code of the Russian Federation and the Law of the Russian Federation of 02/07/1992 No. 2300-1 “On the Protection of Consumer Rights” (hereinafter referred to as the Law on the protection of consumer rights).

From the literal content of the provisions of the Law on the Protection of Consumer Rights it follows that the warranty period can be established by the manufacturer (clause 6 of article 5) and by the seller - only if it is not established by the manufacturer (clause 7 of article 5). At the same time, this law provides for the possibility of the seller assuming obligations in relation to defects in goods discovered after the expiration of the warranty period established by the manufacturer, however, such an obligation is not included in the scope of the concept of “warranty period” and is designated as an “additional obligation of the seller.”

From the point of view of the Law on the Protection of Consumer Rights, differences in the legal regime of the warranty period and additional obligation are due to different regulation of relations between the parties. When establishing a warranty period, the consumer's requirements must be satisfied in accordance with the provisions of the Law on the Protection of Consumer Rights, and when assuming an additional obligation, its content, validity period and procedure for the consumer to exercise rights under it are determined by the agreement between the consumer and the seller (paragraph 2, paragraph. 7).

Civil legislation under the warranty period means the period of time established in the purchase and sale agreement (i.e. in the agreement between the seller and the buyer) during which the goods transferred by the seller to the buyer must comply with the legal requirements for the quality of the goods (Clause 2 of Article 470 of the Civil Code of the Russian Federation ). The concept of “additional obligation” is not provided for in the Civil Code of the Russian Federation at all.

Thus, in civil law the term “warranty period” can be applied to various subjects of regulation. We can distinguish the “warranty period” in a narrow sense (as defined by the Law on the Protection of Consumer Rights) and in a broad sense (as defined by the Civil Code of the Russian Federation).

What term “guarantee period” should be used in tax legal relations? (level 1)

In order to understand what meaning should be attached to the term “guarantee period” when considering tax relations, it is necessary to correctly determine the rules that should govern those civil legal relations for which sub. 13 clause 2 art. 149 of the Tax Code of the Russian Federation provides for exemption from VAT.

The Consumer Rights Protection Law regulates relations in which one party is always the consumer, and the other can be the manufacturer, performer and seller. In other words, this law regulates relations arising from such types of purchase and sale contracts, one party to which is always a citizen who purchases or uses goods (work, services) exclusively for personal, family, household and other needs not related to the implementation of business activities.

The norms of Chapter 30 of the Civil Code of the Russian Federation, which establish one of the above definitions of the “warranty period,” regulate relations arising from the sales contract. Moreover, Art. 470 of the Civil Code of the Russian Federation, containing this definition, is included in a paragraph that includes provisions common to all types of sales contracts (in particular, both for delivery and for retail sales).

From the point of view of tax legislation, it does not matter under what civil law agreement the goods were sold - under a supply or retail purchase and sale agreement. In any case, sales of goods are subject to VAT in the same manner. This is consistent with the general principles of taxation - taxes have an economic basis and cannot be discriminatory. If we assume that exemption from VAT for warranty repair services applies only during the warranty period in the narrow sense (i.e., only during the period established by the manufacturer of the goods), then such an approach will mean the presence of discrimination and a violation of the economic principle when establishing taxes.

Indeed, under equivalent conditions, different taxation may be allowed depending on whether the buyer is a citizen (consumer) or a commercial organization (i.e., discrimination occurs). In addition, different taxation procedures are possible in relation to the same economic situations - in all cases, warranty repairs are carried out without charging the buyer. However, in one case (when using the term “warranty repair” in a narrow sense) VAT is assessed, and in the other (when using the term “warranty repair” in a broad sense) - not.

Therefore, for the purposes of applying sub. 13 clause 2 art. 149 of the Tax Code of the Russian Federation, the term “warranty period” should be used in the meaning in which it is used in Chapter 30 of the Civil Code of the Russian Federation (in a broad sense). In other words, warranty repair services provided to customers during the warranty period established by the seller should be exempt from VAT.

Analysis of law enforcement practice (level 1)

Ministry of Finance of Russia. The position stated above is confirmed in separate letters from financial authorities. The Ministry of Finance of Russia in letter dated 02/05/2008 No. 03-11-04/2/26 indicated that “warranty repair services for goods (vehicles) provided by an organization that has entered into agreements with both the manufacturing plant of these goods and the trading organization , are exempt from value added tax provided that these services are actually performed during the warranty period of operation of the specified goods.”

Tax authorities. The letter of the Federal Tax Service of Russia for Moscow dated May 16, 2007 No. 19-11/045476 states that the exemption or non-exemption from VAT of operations similar to those provided for in paragraph 3 of Art. 149 of the Tax Code of the Russian Federation cannot be made dependent on “who is the buyer of the relevant goods (works, services).” This argument can also be used in favor of applying VAT exemption for warranty repair services within the warranty period established by the seller and not the manufacturer.

Arbitration court. In addition, there is a position of the Federal Arbitration Court of the Moscow District, according to which the provisions of the Law on the Protection of Consumer Rights do not exclude the possibility of establishing a warranty period by any third party (not the manufacturer or the seller selling the product to the final buyer). Thus, in the resolution dated October 30, 2003 No. KA-A40/8536-03, the said court indicated that “the consumer’s right to demand that the final seller or manufacturer of the product eliminate defects in the product (to which the Inspectorate refers, citing the provisions of the Law of the Russian Federation “On the Protection of Consumer Rights” ) does not imply a prohibition on the establishment of a warranty period by any third party." This position, firstly, confirms the possibility of establishing a warranty period in the sense given to it by the Law on the Protection of Consumer Rights, not only by the manufacturer and even not only by the seller who sells the product to the final buyer, but also by entities that play the role of a link between these participants relations, and secondly, it allows you to deviate from the literal interpretation of the provisions of the Law on the Protection of Consumer Rights when applying the term “warranty period” to tax legal relations.

Options for arguments for a tax dispute (level 1)

The previously valid instruction of the State Tax Service of Russia dated October 11, 1995 No. 39 “On the procedure for calculating and paying value added tax” (lost force due to the entry into force of Chapter 21 “Value Added Tax” of the Tax Code of the Russian Federation) (hereinafter referred to as the instructions) contained an indication of the fact that warranty repair and maintenance services for goods are performed at the expense of funds included by the manufacturer in the price of the goods (paragraph 3, clause 39 of the instructions). Then the discount on the cost of warranty repair services is explained by the fact that the manufacturer has already paid tax on it, since the costs of warranty repairs were initially taken into account in the cost of the goods sold.

After the cancellation of the instruction, the legislative regulation of the obligation arising as a result of the transfer by the seller (manufacturer) of low-quality goods did not undergo any significant changes. Consequently, since the mandatory obligation of the seller (manufacturer) to eliminate defects in the transferred goods remains (Article 475 of the Civil Code of the Russian Federation, Article 18 of the Law on the Protection of Consumer Rights), the seller economically takes into account the upcoming costs of warranty repairs in the cost of goods sold.

The application of this approach confirms the possibility of applying the exemption to the sale of warranty repair services paid by the seller, because within its framework, differences in the subject of payment for services and sources of regulation of the content of relations between the parties during the warranty period and within the framework of an additional obligation do not matter. Let's consider a variant of such protection.

Option 1. There is no taxation because the tax has already been paid (level 2)

It is reasonable to assume that the cost of the costs incurred for organizing warranty service is economically included in the difference between the price the seller purchased goods from the manufacturer and the price at which these goods are subsequently alienated to them. This difference is subject to VAT from the seller; accordingly, VAT on the sale of warranty repair services when the seller assumes an additional obligation will lead to double taxation of the same amounts, which is unacceptable.

This conclusion follows from the essence of the legal relationship under consideration, however, “blindly following” this argument in the event of a dispute may lead to the fact that the manufacturer or seller must prove that the cost of warranty repairs is actually included in the price of the product. If this assertion is not proven, then the tax authority will be able to refuse to apply the exemption only on the basis that double taxation does not arise, since the cost of warranty repairs was not included in the price of the goods.

Option 2. Receiving an invoice with VAT from a service organization (level 2)

If an organization decides that the sale of warranty repair and maintenance services within the period established by the seller is subject to VAT, it should pay attention to the following.

On the one hand, the wording of paragraph 5 of Art. 149 of the Tax Code of the Russian Federation suggests that taxpayers providing services provided for in sub. 13 clause 2 art. 149 of the Tax Code of the Russian Federation, do not have the right to refuse this benefit and, accordingly, do not have the right to charge VAT for their services. This position is confirmed in the letter of the Federal Tax Service of Russia for Moscow dated May 16, 2007 No. 19-11/045476: application of exemption from VAT on transactions for the sale of goods (work, services) provided for in clause 2 of Art. 149 of the Tax Code of the Russian Federation (including warranty repair services), is mandatory for taxpayers.

On the other hand, clause 5 of Art. 173 of the Tax Code of the Russian Federation provides that taxpayers who have the right to a benefit, but still issue an invoice to the buyer with the allocation of the tax amount, are required to pay this VAT to the budget. Thus, there is a legislative conflict regarding the tax consequences of presenting and paying VAT on an invoice for warranty repairs.

If the invoice is nevertheless issued by an organization that directly provides warranty repair services (hereinafter referred to as the service organization), and the “input” VAT is paid by the seller, then this circumstance does not deprive him of the opportunity to apply a tax deduction for such services. The basis for deducting the tax presented will be the invoice of the service organization and the acceptance of the services provided for accounting.

The proposed approach is consistent with the position of the highest court, set out in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 30, 2007 No. 10627/06. In this case, the Supreme Arbitration Court of the Russian Federation recognized the legality of the buyer applying a tax deduction if the seller presents an invoice with an allocated amount of VAT for non-taxable transactions (private security services). Similar conclusions are contained in the decisions of the Federal Antimonopoly Service of the Volga-Vyatka District dated December 28, 2006 No. A82-15226/2005-99, the Moscow District dated November 20, 2006, November 27, 2006 No. KA-A40/11296-06, the Northwestern District dated August 14, 2008 to case No. A56-1302/2006, dated November 24, 2006 No. A56-13319/2006.

However, in connection with the uncertainty discussed above in the provisions of Art. 149 of the Tax Code of the Russian Federation, it is possible for tax authorities to file a claim against an organization that paid for services for warranty repair of goods on invoices that included VAT, if the tax authority takes the position that the benefit provided for in subsection was subject to mandatory application. 13 clause 2 art. 149 of the Tax Code of the Russian Federation. In such a situation, the application of a VAT deduction may be refused (illegally, in their opinion, presented by service centers).

How much is the cost of warranty repairs not subject to VAT?

If you directly perform warranty repairs and receive compensation for this, then, as a rule, the compensation is already included in the cost of warranty repairs, and you are not subject to VAT on all compensation received. If you receive compensation for warranty repairs, and then use it to cover the costs of the organization directly carrying out the repairs, then you have the right to an exemption only to the extent of reimbursement of the cost of repairs, as well as the cost of spare parts. Amounts of remuneration and other amounts received in excess of this value are subject to VAT taxation (Letter of the Ministry of Finance of Russia dated July 29, 2010 N 03-07-07/53; Letters of the Federal Tax Service of Russia for Moscow dated June 18, 2009 N 16-15/61634, dated 03/17/2009 N 16-15/023683). And although there were cases when it was possible to challenge this in court (Resolution of the Federal Antimonopoly Service of the Moscow Region dated December 10, 2007 N KA-A40/12621-07), such a conclusion is based on the law. After all, the reward in such a situation is not a payment for warranty repairs, but for organizing its implementation.

The procedure for assessing VAT on repair services

Using the example of warranty repairs of vehicles, we will consider VAT taxation when carrying out work (rendering services). Taxation of VAT depends on the types of operations performed by the workshops. Enterprises that provide transport repair services and apply the generally established taxation system must pay VAT on all types of repairs, with the exception of warranty ones. When carrying out warranty repairs, there is no sale or object of VAT taxation.

Enterprises that provide repair services to the population have the right to apply UTII in some cases. Services for warranty repairs and maintenance of vehicles of individuals do not belong to the types of activities transferred to imputed income (paragraph 9 of Article 346.27 of the Tax Code of the Russian Federation). For these types of activities, the simplified tax system or OSNO is applied. The cost of warranty repairs for physical persons is also not subject to VAT.

Documentary evidence of warranty services

To confirm the right to an exemption, the following documents are needed: ( if repair the product yourself - a warranty card (purchase agreement, technical documentation), a customer service book, a work acceptance certificate signed by the owner of the faulty product, etc. That is, if from the documents you have it can be determined that the repairs were carried out precisely during the warranty period, then in the event of claims from the tax authorities, the court will most likely side with you (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 04/21/2011 N KA-A40/2964- 11; Ninth AAS dated February 26, 2008 N 09AP-1135/2008-AK); ( if ) you organize repairs - an agreement stipulating the obligation to carry out warranty repairs, invoices and certificates of work performed from service centers, as well as documentary evidence that the repair is under warranty (for example, copies of warranty cards) (Resolution of the Federal Antimonopoly Service of the North-West District dated 29.05 .2008 in case No. A56-14318/2007; FAS TsO dated 07/01/2010 in case No. A09-9713/2009). In one of the legal disputes, the organization proved that the repair was covered under warranty by setting out an electronic document flow scheme with the dealer.

Protecting a car dealer from claims for warranty repair costs

In this case, it is necessary to note that the taxpayer turned to the help of tax consultants at the stage of starting the on-site tax audit.

As a result of analyzing accounting and tax documents, competent interaction with the tax inspector at the stage of control activities, and providing answers to all requests from the tax authority, it was possible to avoid additional taxes on several grounds. Which, undoubtedly, is already a significant victory in relations with regulatory authorities.

But these are lyrics.

One of the questions that the tax authority asked the taxpayer during the inspection period, and on which it ultimately charged him additional VAT, was that, in the opinion of the regulatory authority, the organization should have restored the amount of VAT previously accepted for deduction.

More details:

An organization subject to the general taxation regime is a dealer of one well-known automobile brand. Accordingly, its main activity is the sale of cars.

Additionally, the organization carries out warranty repairs of these vehicles (without charging additional fees), which means that clause 2 of Art. 149 of the Tax Code of the Russian Federation and this type of activity is not subject to VAT. It must be taken into account that this is not an independent type of activity, since it is directly related to the main one.

As is known, the norms of Art. 170 of the Tax Code of the Russian Federation, and in particular paragraph 4 of this article, establish the procedure for accounting for tax amounts presented by sellers of goods to taxpayers carrying out both taxable and tax-exempt transactions.

Also, the norms of this article say that:

if the share of the taxpayer’s total expenses on transactions not subject to taxation does not exceed 5 percent of the total total expenses, then the provisions of paragraph 4 of Art. 170 of the Tax Code of the Russian Federation, for example, on maintaining separate records.
ALL tax amounts presented to such taxpayers by sellers of goods are subject to deduction in accordance with the procedure provided for in Article 172 of the Tax Code of the Russian Federation.

So in this case:

the taxpayer carries out a type of activity subject to VAT, as well as a type of activity not subject to VAT - the sale of services provided without charging additional fees for the repair and maintenance of goods during the warranty period of their operation, including the cost of spare parts for them and parts for them (however, this type of activity was not a separate type of activity);
the share of the taxpayer’s total expenses on transactions not subject to taxation does not exceed 5 percent of the total total expenses (the tax office agreed with this percentage);
the taxpayer has the right not to keep separate records;
the taxpayer has the right to apply deductions for ALL amounts presented by sellers.

An interesting interpretation of the norms of the tax code by the tax authority:

Everyone is also well aware that if an organization under the general taxation regime subsequently uses goods for which a VAT deduction was previously accepted in activities not subject to VAT, then it is obliged to restore the amount of VAT.

It is this norm that in this case the tax authority decided to apply to those spare parts that were purchased by a car dealer for warranty repairs from a distributor, and for which it applied a VAT deduction.

According to the logic of the regulatory authorities, it turned out that warranty repairs and, accordingly, the purchase of spare parts are an independent type of activity (not subject to VAT) and the purchase of spare parts is in no way connected with it.

Moreover, the tax authority did not apply this approach to all purchased spare parts, but only to the most expensive ones. That is, selectively!

Neither the norm of paragraph 2 of Art. 149 of the Tax Code of the Russian Federation, nor, moreover, the norms of paragraph 4 of Art. 170 of the Tax Code of the Russian Federation the tax authorities decided not to take into account; I also did not understand the types of activities and take into account the share of the total amount of total expenses. There is a use of spare parts in activities that are not subject to VAT - so, please, taxpayer, restore them!

But the amounts of additional charges presented in this case turned out to be rather large - about 2 million rubles, plus penalties and fines, so the car dealer decided to defend his position in court.

Position of the courts of three instances:

The Arbitration Court of the Kemerovo Region reasonably concluded that, when speaking about the taxpayer’s obligation to restore the amounts of VAT previously accepted for deduction, the tax authority does not take into account the provisions of paragraph 4 of Art. 170 of the Tax Code of the Russian Federation, clearly indicating the right to apply deductions for ALL transactions.

And the obligation to restore VAT in this case is not provided for by the Tax Code of the Russian Federation, since this is not the further use of spare parts in a non-taxable activity, but an activity carried out within the framework of the main one, in respect of which the “benefit” is applied - clause 2 of Art. 149 of the Tax Code of the Russian Federation.

The courts of appeal and cassation also supported the position of the Arbitration Court of the Kemerovo Region and the taxpayer.

It should be noted that in this dispute the court also supported the taxpayer’s position on the presence of mitigating circumstances when held liable under Art. 123 of the Tax Code of the Russian Federation and proportionally reduced the amount of the fine for the offense committed.

Natalya Bolotova, partner:

This dispute is an exception to the rule, since it is not related to an unjustified tax benefit, which is why it is interesting. But in this case, as always, the tax authorities could not do without “thinking up” norms that are not in the tax code. Although in any dispute with regulatory authorities we are faced with the fact that this is simply a different interpretation of the rules between the taxpayer and the regulatory authority, be it the Federal Tax Service, Pension Fund, Social Insurance Fund, customs authorities and others. This interpretation does not always lend itself to common sense, and most importantly, economic sense, so the taxpayer has to defend his position in court. But the example of this case showed once again how important the work of lawyers and employees of the economic and accounting departments of the taxpayer is even at the stage of the audit itself. Therefore, you should not peacefully wait for the certificate and report of the on-site tax audit to be issued, especially since not a single on-site tax audit ends without additional assessment of large amounts of taxes.

According to Art. 469 of the Civil Code of the Russian Federation, goods must be transferred to the buyer of proper quality. In this case, the person accepting the warranty obligations must eliminate free of charge any detected defects in the product that arose both before and after its transfer to the buyer (Article 475-477 of the Civil Code of the Russian Federation).

The manufacturer may be obligated to make warranty repairs, either by law or by voluntary obligation. If a citizen purchases products for personal family or household needs not related to business activities, then the relations between the manufacturer (manufacturer) and the consumer are subject to the provisions of the Law of the Russian Federation dated 02/07/92. No. 2300-1 “On the protection of consumer rights.” According to paragraph 1 of Art. 19 of Law No. 2300-1, if a warranty period for a product is not established, the consumer may make warranty claims within two years from the date of transfer of the product to the consumer.

If the product (goods) is purchased for use in business activities, then there is no mandatory warranty period. But the manufacturer has the right to voluntarily assume warranty obligations. This is provided for in Art. 470 and 471 of the Civil Code of the Russian Federation. Despite the voluntary nature of establishing a guarantee in this case, many manufacturers establish a warranty period for their products, since the presence of a manufacturer’s warranty serves as an additional competitive advantage for the product.

The position of the Russian Ministry of Finance on the application of VAT when carrying out warranty repairs is set out in a letter dated March 22, 2004. No. 04-03-11/44.

Application of benefits

In accordance with paragraphs. 13 clause 2 art. 149 of the Tax Code of the Russian Federation, 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 value added tax.

The literal interpretation of this rule implies that tax-exempt repairs and maintenance of goods under warranty, including the cost of spare parts and parts for them, are performed without charging additional fees.

The economic meaning of the benefit established by paragraphs. 13 clause 2 art. 149 of the Tax Code of the Russian Federation, is directly determined by the principle of ensuring the restoration of violated rights (clause 1 of Article 1 of the Civil Code of the Russian Federation), as well as the legal nature of VAT, which is an indirect tax.

Thus, in the absence of paragraphs. 13 clause 2 art. 149 of the Tax Code of the Russian Federation, an enterprise that sells goods should calculate and pay to the budget the amount of VAT on the operation of providing services free of charge, performing warranty repairs (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation). However, then the principle of the economic basis of the tax would be violated. If the seller did not invoice the buyer for VAT, but paid the tax from his own funds, this would contradict the legal nature of VAT as an indirect tax, that is, a “consumption” tax. In a situation where VAT was collected from the consumer, the gratuitous provision of warranty work would be questioned, given that the service is in the nature of restoring the rights of the buyer and is not inherently aimed at obtaining benefits.

A similar situation would also arise due to the provisions of the Law of the Russian Federation dated 02/07/92. No. 2300-1 “On the protection of consumer rights”, since in relations with consumers - individuals, the obligation to eliminate defects in goods free of charge rests with the seller. Therefore, in order to avoid these contradictions, the legislator provided the benefit we are considering.

Since the rules of mandatory free repairs also apply to the manufacturer, based on the meaning of the benefit, and also in the absence of corresponding prohibitions, the manufacturer should also be exempt from paying VAT when performing warranty work.

The content of the benefit, according to civil law, involves the imposition of an obligation to carry out warranty repairs free of charge on the seller and the manufacturer. Consequently, in our opinion, repairs performed by other persons, in particular, service centers carrying out relevant business activities, are not exempt from VAT. In the latter case, we are talking about paid repair work for the seller.

The services provided by the seller to consumers comply with the criteria specified in paragraphs. 13 clause 2 art. 149 of the Tax Code of the Russian Federation. Consequently, in this case, the services of the selling company are exempt from taxation, including if third parties are involved in performing repair work.

According to paragraphs. 1 item 2 art. 170 of the Tax Code of the Russian Federation, amounts of value added tax paid upon the acquisition of goods (work, services) used in carrying out operations exempt from value added tax, including the provision of warranty repair services, are not accepted for deduction, but are taken into account in the cost of such goods (works, services).

In this case, the taxpayer is obliged to keep separate records of tax amounts for purchased goods (works, services) used to carry out transactions, both taxable and non-taxable.

If the taxpayer does not keep separate records, then the amount of tax on purchased goods (work, services) is not subject to deduction and is not included in the expenses accepted for deduction when calculating corporate income tax.

If VAT on spare parts was previously accepted for deduction, then during warranty repairs, in cases where they are used without charging an additional fee, the corresponding tax amounts should be restored and paid to the budget. This procedure is determined by clause 3 of Art. 170 Tax Code of the Russian Federation.

In our opinion, the restoration of these tax amounts should be reflected in the value added tax return for the tax period, in which the cost of spare parts is written off as warranty repair costs. In this case, in the said declaration, the amount of tax to be deducted for the reporting period should be reduced by the amount of tax previously accepted for deduction on goods used during warranty repairs.

Separate accounting

The amounts of VAT paid to suppliers for spare parts used in warranty repairs must be taken into account in the cost of these spare parts in accordance with clause 2 of Art. 170 of the Tax Code of the Russian Federation, including the amount of recovered VAT on spare parts used in warranty repairs. Tax authorities take a similar position.

The procedure for maintaining separate accounting when performing transactions not subject to VAT is regulated by clause 4 of Art. 170 Tax Code of the Russian Federation.

If separate accounting is not maintained, then input VAT amounts can neither be deducted nor taken into account in the cost of goods. But this rule can be neglected only in the only case when in the tax period the share of total costs for the production of goods, works, and services sold without VAT does not exceed 5% of all production costs. In this case, all amounts of input VAT can be deducted in the general manner. Accordingly, it is not necessary to keep separate records of input VAT in such tax periods.

If the manufacturer's total costs for warranty repairs, including spare parts used during warranty repairs, exceed 5% of production costs, then care must be taken to separately account for input VAT, in particular, for spare parts used in warranty repairs.

When a manufacturer pre-purchases additional parts for warranty repairs, it is not difficult to ensure separate accounting. In this case, the quantity and range of spare parts can be determined based on operating experience and warranty service of the product, as well as established warranty periods. This method will lead to additional diversion of working capital and may not guarantee that additionally purchased spare parts will be sufficient or, on the contrary, they will lie in the warehouse unclaimed. Therefore, if the terms of contracts with suppliers allow, you can purchase spare parts for warranty repairs as you request warranty repairs. In these cases, the manufacturer will know in advance that the purchased spare parts will be used for warranty repairs, not subject to VAT. Therefore, input VAT on them can be initially included in the price, and not taken as a deduction.

In our opinion, separate accounting can be maintained even if the spare parts used for warranty repairs were purchased for production. And accordingly, a VAT deduction was applied to them. After all, Art. 170 of the Tax Code of the Russian Federation obliges to take into account VAT in the cost of goods already used for tax-free transactions. That is, the need for separate accounting arises at the time of use (writing off as expenses) the cost of spare parts.

This position is confirmed by judicial practice. Thus, the Federal Arbitration Court of the North-Western District in its decision dated 01.08.02. in case No. A56-1167/02 indicated that separate accounting should be maintained not from the moment of acquisition of goods, but from the moment of their actual use for VAT-free transactions. The main thing is that the VAT amount is included in the cost of spare parts in the period in which they were used for warranty repairs. This procedure for separate accounting of input VAT on spare parts must be fixed in the accounting policy.

Repairs by service center

Warranty repairs can be performed not only by manufacturing organizations, but also by specialized repair companies in accordance with concluded contracts. In this case, funds received by such enterprises from manufacturing organizations for the provision of services without charging additional fees, repair and maintenance of goods during the warranty period of their operation are not included in the VAT tax base. This opinion is expressed in clause 6.8 of the Methodological Recommendations for the Application of Ch. 21 “Value added tax” of the Tax Code of the Russian Federation, approved by order of the Ministry of Taxes of Russia dated December 20, 2000. No. BG-3-03/447.

That is, if warranty repairs are carried out not by the manufacturer (manufacturer), but by a third-party organization (service center), and at the same time the manufacturer pays the service center for warranty repair services, then for the buyer, according to clause 1 of Art. 475 of the Civil Code of the Russian Federation, such repairs are free.

This procedure for organizing warranty repairs and warranty service has a number of significant advantages. It allows the manufacturer to use a whole network of service centers, which provides consumers with more convenient and affordable access to warranty repairs and warranty service. This ultimately is an additional competitive advantage of the products. Concluding agreements on warranty repairs and warranty service is especially important for those manufacturers whose products are in mass demand.

By concluding a warranty service agreement for its products with a service organization, the manufacturer, in essence, enters into an agreement in favor of a third party - the buyer (Article 430 of the Civil Code of the Russian Federation). At the same time, although performance (repairs) under this agreement is carried out by the buyer, the manufacturer still remains the creditor under this agreement. He pays for warranty repairs.

Therefore, despite the fact that the services are provided to the consumer of the product, the costs of such warranty repairs are still the costs of the manufacturer. After all, it is he who bears the responsibility for warranty service.

As for the amounts of value added tax paid to third parties in relation to repair services, based on the norm of paragraphs. 1 item 2 art. 170 of the Civil Code of the Russian Federation, these tax amounts are not subject to deduction, since the costs of paying for warranty repairs of a service organization are equal to the costs of purchasing other goods (work, services) necessary for warranty repairs.

In this case, the service organization has no obligation to pay VAT to the budget. But if she allocates VAT and issues an invoice, then she will have to pay VAT on the basis of clause 5 of Art. 173 Tax Code of the Russian Federation. And the manufacturer can take this VAT into account in the cost of warranty repairs on the basis of clause 2 of Art. 170 Tax Code of the Russian Federation.

However, in the methodological recommendations on VAT, the tax authorities explained that if repair services are provided by an organization not at the expense of the manufacturer of the goods, then such services are subject to VAT in the generally established manner. Thus, if warranty repair services are carried out at the expense of the seller, then the service organization cannot take advantage of this benefit.

Accounting and taxation of repair services

Repair services for household appliances can be provided both during the warranty period and after its expiration. Moreover, in accordance with the norms of Art. 5 of the Law of the Russian Federation dated 02/07/92. No. 2300-1 “On the Protection of Consumer Rights”, the warranty period can be established by the equipment manufacturer, trade organization, and can also be increased by it compared to that established by the manufacturer.

The receipt of spare parts and parts from the manufacturer and their use for warranty repairs are recorded in off-balance sheet account 003 “Materials accepted for processing” at supplier prices by their names, brands, serial numbers and manufacturers. As they are used, consumer service organizations report to suppliers, providing them with warranty cards, copies of defect sheets and receipts. Then the material assets provided for warranty repairs are written off from the credit of account 003.

Upon completion of the repair work, the organization issues a warranty card to the customer in accordance with the Rules for Consumer Services. The Contractor accepts, for a certain period of time, an obligation to freely eliminate faults of household appliances repaired by him. To evenly include such costs in the cost of services, a reserve for future expenses for warranty repairs and warranty service can be created. To form it, the amounts provided for in the estimate are deducted monthly, which are reflected in the debit of account 20 “Main production” and the credit of account 96 “Reserve for future expenses”, subaccount “Reserve for warranty repairs and warranty service”. The corresponding costs are written off by debiting account 96 and crediting cost accounts for work performed. At the end of the reporting year, the amount of the excess accrued reserve is reversed, and the missing amount to write off the actual costs of warranty service and repair of household appliances is added to the reserve.

When repairing household appliances during the warranty period, the cost of services, parts, spare parts is paid by its manufacturer or seller and in accordance with paragraphs. 13 clause 2 art. 149 of the Tax Code of the Russian Federation is not subject to VAT. In clause 6.8 of the Methodological recommendations for the use of Ch. 21 “Value Added Tax” of the Tax Code of the Russian Federation (approved by order of the Ministry of Taxes of Russia dated December 20, 2000 No. BG-3-03/447) it is noted that the VAT tax base does not include funds received from manufacturing organizations for repairs and maintenance technically complex goods during the warranty period of their operation. Services for routine repairs of these goods, the cost of which is paid by the consumer, are fully taxed. Therefore, organizations for the repair of household appliances that carry out operations that are and are not subject to VAT must keep separate records of them (Clause 4 of Article 149 of the Tax Code of the Russian Federation).

Accounting for the costs of providing services for the repair of household appliances is carried out on account 20 “Main production” without using accounts 40 “Output of products (works, ...). Costs are formed on two sub-accounts - “Warranty repair costs” and “Routine repair costs”.

The order of entries in the accounting accounts for writing off expenses, reflecting revenue from the provision of services and calculating the financial result in an organization engaged in warranty and routine repairs of household appliances is as follows:

Dt account 62 “Settlements with buyers and customers”,
Account CT 90 “Sales”, subaccount 1 “Revenue”, analytical account “Revenue from warranty repairs” - reflects the amount of revenue from warranty repairs;
Dt account 50 “Cashier”,
Kt account 90-1 “Revenue”, analytical account “Revenue for ordinary repairs” - the amount of revenue from the population for ordinary repairs was received;
Dt account 90-2 “Cost of sales”, analytical account “Cost of warranty repairs”,
Account CT 20 “Main production”, subaccount “Warranty repair costs” - expenses for warranty repairs have been incurred;
Dt account 90-2 “Cost of sales”, analytical account “Cost of ordinary repairs”,
Account CT 20 “Main production”, sub-account “Costs of ordinary repairs” - expenses for ordinary repairs have been incurred;
Dt account 90-3 “Value added tax”,
Account CT 68 “Calculations for taxes and fees”, subaccount “Calculations for VAT” - VAT is charged on the cost of ordinary repairs of household appliances;
Dt account 90-9 “Profit/loss from sales”, analytical account “Profit on warranty repairs”,
CT account 99 “Profits and losses” - profit received on warranty repairs;
Dt account 90-9 “Profit/loss of sales”, analytical account “Profit for ordinary repairs”,
CT account 99 “Profits and losses” - profit was received on ordinary repairs;
Dt account 51 “Current accounts”,
Account CT 62 “Settlements with buyers and customers” - reflects the cost of warranty repairs paid by manufacturers and trade organizations.

Spare parts and components are used to repair household appliances. In accordance with the norms of paragraph 2 of Art. 170 of the Tax Code of the Russian Federation, VAT amounts on material assets used for the provision of warranty repair services are not reimbursed from the budget, but are included in expenses accepted for deduction when calculating the organization’s income tax. Therefore, for tax purposes, these material assets must be taken into account by type of repair work and reflected in accounting with the following entries:

Dt account 10 “Materials”, subaccount 5 “Spare parts”,
Account CT 60 “Settlements with suppliers and contractors” – purchased parts for repairs are capitalized;
Dt account 19 “Value added tax on acquired assets”,
Account CT 60 “Settlements with suppliers and contractors” – VAT is reflected on purchased parts for repairs;
Dt account 60 “Settlements with suppliers and contractors”,
CT account 51 “Current accounts” – parts for repairs have been paid for;
Dt account 68 “Calculations for taxes and fees”,
Account CT 19 “Value added tax on acquired assets” – accepted for offset (reimbursement from the budget) of VAT on capitalized and paid parts for repairs;
Dt account 20 “Main production”, subaccount “Costs of ordinary repairs”,
CT account 10-5 “Spare parts” - parts for repair were transferred to production;
Dt account 68 “Calculations for taxes and fees”, subaccount “Calculations for VAT”,
Account CT 19 “Value added tax on purchased assets” – the amount of VAT on parts used to perform warranty repairs has been restored;
Dt account 20 “Main production”, sub-account “Warranty repair costs”,
Account CT 19 “Value added tax on purchased assets” - the amount of VAT is written off on production costs for parts used for warranty repairs.

When repairing household appliances, spare parts and components purchased by the organization or provided by its manufacturers are used. Moreover, their cost may or may not be included in the price of services.

If the value of the material items is not included in the list price, their use for repair services should be considered a sale of goods. Valuation of such goods in current accounting can be at purchase or sale prices, which is fixed in the accounting policy.

In organizations that provide services for the repair of household machines, appliances, and other complex equipment, strict reporting forms are used to place orders, each of which, in accordance with its number, is accounted for and controlled by the accounting department from receipt to delivery to the archive. The forms of the forms were approved by a letter from the Ministry of Finance of Russia dated April 24, 1995. No. 16-00-30-33 “On approval of forms of strict reporting documents” and are used when paying for services in cash without the use of cash registers.

Ministry of Finance of the Russian Federation by letter dated December 29, 2003. No. 16-00-24/56 “On the use of strict reporting documents in settlements with the population” on the development and practical implementation of strict reporting forms for use in small and medium-sized businesses reported the following.

Before the Federal Law of May 22, 2003 came into force. No. 54-FZ “On the use of cash register equipment when making cash payments and (or) payments using payment cards” forms of strict reporting documents (receipts, vouchers, tickets, coupons, etc.) that are to be used in settlements with the population to account for cash, approved by the Ministry of Finance of Russia in agreement with the State Interdepartmental Commission on Cash Registers on the proposal of the relevant ministries and departments, as well as organizations.

Organizations that are not part of the system of line ministries and committee departments, but carry out the corresponding type of activity, have the right to use strict reporting forms approved by the Ministry of Finance in their activities

In accordance with the above-mentioned Federal Law, the procedure for approving strict reporting forms equivalent to cash receipts, and the procedure for their recording, storage and destruction must be established by the Government of the Russian Federation.

Until the release of the relevant acts of the Government of the Russian Federation in connection with the Federal Law, the forms of strict reporting documents (receipts, vouchers, tickets, coupons) approved (Resolution of the Government of the Russian Federation dated July 30, 1993 No. 745) by the Ministry of Finance of Russia in agreement with the State Interdepartmental Commission on Cash Registers etc.), which are to be used in settlements with the population to account for cash.

Nikolay Pekelnik, 1st Rank Tax Service Advisor

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