Do you know who issues the invoice, including the VAT amount allocated in it?

Invoice and invoice

The contract may contain the procedure for payment for goods (work, services): exact deadline, deadline, installment payment, advance payment, etc. Therefore, an agreement containing a party’s obligation to pay for goods (works, services) is also the basis for payment. Since the Civil Code of the Russian Federation does not contain rules indicating the need or obligation to use an invoice - a payment request for calculations, the parties have the right to establish the procedure for settlements independently, that is, they can use an invoice - a payment request. If the agreement contains a direct reference to the use of a payment request when calculating an invoice, it is mandatory for the parties to this agreement, but does not exempt the obligated party from paying for the goods delivered (work performed, service rendered) based on the following. Fulfillment by the buyer (customer) of the obligation to pay for the supplied goods (work, services) is conditioned by the fulfillment by the other party of the counter obligation to supply these goods (work, services). Accordingly, the basis for the obligation to pay is the fact of delivery of goods (work, services), and not the fact of delivery of an invoice and (or) invoice. The absence of an invoice does not deprive the obligated party of the opportunity to make payments for the delivered goods (works, services) within the period established by the contract and in the established amount. Thus, failure by the seller (contractor, performer) to issue an invoice does not relieve the buyer (customer) from timely payment. The absence of an invoice cannot affect the buyer’s (customer’s) obligation to pay the cost of the goods (work, services) supplied. The basis for the obligation to pay their cost will be the fact of proper completion of the delivery (work, services). An invoice refers to tax documents, which it is within the meaning of paragraph 1 of Art. 169 of the Tax Code of the Russian Federation, according to which an invoice is a document that serves as the basis for accepting the presented amounts of tax for deduction or reimbursement in the manner prescribed by the Tax Code of the Russian Federation. Thus, an invoice is not just a business tool; This is a form of tax administration that can be accepted by agreement of the parties to the contract as a basis for payment for goods (works, services). In this regard, an invoice can serve as the basis for payment for goods (work, services), including in the absence of an invoice.

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Answer:

The concept of “primary accounting document”

defined by Art. 9 of Federal Law No. 129-FZ of November 21, 1996 “On Accounting”.

Storage periods for invoices from October 1, 2017: what has changed

173 of the Tax Code of the Russian Federation). Let us highlight two important points:

1. if the “simplified” person indicates “Without VAT” in the invoice (at the request of the counterparty), a VAT declaration is not submitted;
2. if the VAT invoice indicates “0 rubles”, a VAT declaration is submitted. Although there are opinions that “0 rubles” is regarded as an invoice “Without VAT”.

The variety of situations discussed above confirms: the simplified system is not as easy and simple as it seems at first glance, and does not exempt you from knowledge even on those taxes in respect of which the simplifier is not a taxpayer. And finally, a few more possible situations...

VAT declaration under the simplified tax system

An organization or entrepreneur will have to submit a VAT return electronically only if the VAT amount is highlighted in the invoice (it doesn’t matter in what amount: 0 rubles or another amount).

Payment by invoice

According to this article:

"1. All business transactions carried out by the organization must be documented with supporting documents. These documents serve as primary accounting documents on the basis of which accounting is conducted.

2. Primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents whose form is not provided for in these albums must contain the following mandatory details:

a) name of the document; b) date of preparation of the document; c) the name of the organization on whose behalf the document was drawn up; d) content of the business transaction; e) measures of business transactions in physical and monetary terms; f) the names of the positions of the persons responsible for the execution of the business transaction and the correctness of its execution; g) personal signatures of these persons. ...

4. The primary accounting document must be drawn up at the time of the transaction, and if this is not possible, immediately after its completion.”

Let's consider the compliance of the invoice with the listed characteristics of the primary document:

• an invoice is not a supporting document for any business transaction (for example, supporting documents for the purchase of goods, work and services are a bill of lading, a bill of lading, a certificate of work performed (services rendered));
• accounting entries generated on the basis of an invoice (Dt 68.2 19) are not an independent business transaction;
• albums of unified forms approved by the State Statistics Committee of the Russian Federation do not contain an invoice form.

However, the invoice contains the mandatory details of the primary accounting document established by the Federal Law “On Accounting”. In this case, the invoice in accordance with clause 3 of Art. 168 of the Tax Code of the Russian Federation, in contrast to the primary document, can be drawn up within 5 calendar days from the moment of shipment of goods (performance of work, provision of services), transfer of property rights or receipt of payment amounts, partial payment for upcoming deliveries of goods (performance of work, provision of services) , transfer of property rights.

Thus, with the exception of compliance of the invoice details with the mandatory details of the primary accounting document, other features of the primary document established by Art. 9 of the Federal Law “On Accounting” the invoice does not contain.

It should be noted that the provisions of the Tax Code of the Russian Federation also distinguish between the concepts of “invoice” and “primary document”

. Namely:

• according to 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 goods (work, services), property rights presented by the seller (including the commission agent, agent who sell goods (work, services), property rights on their own behalf) VAT amounts to deduction in the manner prescribed by Chapter 21 of the Tax Code of the Russian Federation.
• in accordance with paragraph 3 of Art. 120 of the Tax Code of the Russian Federation, a gross violation of the rules for accounting for income and expenses and objects of taxation for the purposes of this article means the absence of primary documents, or the absence of invoices, or accounting or tax accounting registers...

Taking into account the above, an invoice is a document on the basis of which the amount of VAT is accepted by the buyer for deduction, and is not recognized as a primary document within the framework of accounting and tax legislation.

This opinion is also shared by the Ministry of Finance of the Russian Federation: in Letter dated June 25, 2007 N 03-03-06/1/392, financiers came to the conclusion that an invoice is a document that indirectly confirms expenses incurred and serves as an addition to existing primary documents .

When should I issue an invoice for a rental?

Can invoices be issued when renting a property during the period for which the fee is charged? And when should such a document be reflected in the sales book?

Providing for rent - this provision is disclosed in paragraph 5 of Article 38 of the Tax Code of the Russian Federation. This is an activity whose results are consumed in the process of providing it.

An invoice for the service should be issued no later than 5 days from the date of its provision (clause 3 of Article 168 of the Tax Code of the Russian Federation), that is, after the service is provided. Therefore, issuing an invoice before the end of the rental month is incorrect. But you can generate a document on the last day of the month - this is not a violation. At the same time, the lessor must reflect the invoice in the sales book in the tax period when the tax liability arose.

Such explanations are contained in the letter of the Ministry of Finance dated 06/05/2018 No. 03-07-09/38397.

What does the bill look like?

An invoice for payment can hardly be considered in the general case a primary accounting document, since it does not formalize a business transaction (Clause 1, Article 9 of the Federal Law of November 21, 1996 N 129-FZ “On Accounting”): the shipment of goods is issued with an invoice, transfer of funds - by payment order. The invoice performs auxiliary functions: the supplier informs the buyer of the amount to be paid and additionally reminds of the timing of its transfer.

There is no unified form for payment invoices; organizations resolve this issue independently. Traditional account details include:

• details of the supplier - the recipient of the payment, namely name, INN, KPP, bank details (it is assumed that it is on the basis of the invoice that the buyer will draw up a payment order in the form approved in Appendix 1 to the Regulations of the Central Bank of the Russian Federation dated October 3, 2002 N 2-P “O” non-cash payments in the Russian Federation");
• buyer's details (usually only name);
• basis for payment (name, quantity of goods, details of the supply agreement);
• the amount to be paid (if a product is paid for, the sale of which is subject to VAT, the “input” tax is highlighted in the invoice);
• the deadline for paying the invoice (for example, “pay the invoice within 20 calendar days”);
• invoice expiration date (usually in prepaid invoices);
• date and account number (to identify the document);
• signature of an authorized person and seal of the supplier organization.

The legislation does not prohibit concluding transactions in conventional units (clause 2 of Article 317 of the Civil Code of the Russian Federation). This means that the invoice can also be drawn up in y. e. and contain an indication of the rate of conventional monetary units used by the parties (the official exchange rate on the date of payment or the rate fixed in the agreement).

For the purchasing organization, the invoice for payment usually performs a control function. For example , according to the internal document flow rules, a payment from a current account can only be made on the basis of an invoice from a supplier, endorsed by the financial manager. However, often the parties do without issuing invoices, because the amount of debt and payment terms are agreed upon in the contract. Most often, an invoice for payment is considered as a unilateral financial document, which in itself does not give rise to the rights and obligations of the parties.

Prepayment invoice as a contract

As a rule, in the supply agreement the parties stipulate the supplier’s obligation to issue an invoice for an advance payment or for payment for goods already shipped. Therefore, issuing an invoice is one of the actions of the supplier to fulfill its obligation under the contract.

However, there are situations when, due to the peculiarities of the organization of trade, issuing an invoice acts as an offer, and payment of the invoice is considered as acceptance of the offer (Resolution of the Federal Antimonopoly Service ZSO dated June 23, 2009 N F04-3677/2009(9195-A45-4), FAS UO dated October 21. 2009 N Ф09-8079/09-С3, FAS SZO dated 12/17/2008 N A56-9218/2008, FAS PO dated 02/12/2008 N A57-19204/05-15). So, according to paragraph 2 of Art. 437 of the Civil Code of the Russian Federation, an offer containing all the essential terms of the contract, from which the will of the person making the offer is discerned, to conclude an agreement on the conditions specified in the offer with anyone who responds, is recognized as an offer (public offer). In turn, the performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the terms of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) is generally considered acceptance (Clause 3 of Article 438 of the Civil Code of the Russian Federation). For example , trade organizations operating through electronic platforms post on their website an invitation to potential buyers to independently create an invoice (select the required goods, indicate the payment method, delivery method and other delivery conditions), print it and pay. Once the potential buyer has paid the invoice, the seller has an obligation to deliver the goods to him on the terms agreed upon in the invoice.

Note. In the described situation, the seller, as a rule, indicates the so-called validity period of the invoice, after which the invoice is canceled and payment received on it is not considered as acceptance of the offer and does not entail the emergence of a counter-obligation of the seller. This condition is dictated by the seller’s need to ensure the availability of the goods for which an invoice has been issued. By setting delivery dates in the invoice, the seller must meet them, therefore, he is forced to reserve the goods while awaiting payment from the buyer. If payment is not received within the period specified in the invoice, the goods are excluded from the reserve.

In this situation, the invoice is considered as a written form of the contract. However, for an invoice to become a contract, it must contain all the essential terms of the contract. In relation to the supply agreement - the condition of the product (name, quantity) and delivery time (for example, within ten days after receipt of payment on the invoice) <1>. In the absence of essential conditions in the invoice, issuing an invoice and its payment does not lead to the conclusion of an agreement (Resolutions of the Federal Antimonopoly Service of Moscow dated September 28, 2009 N KG-A40/9509-09, Ninth Arbitration Court of Appeal dated March 16, 2009 N 09AP-1882/2009, 09AP- 2292/2009).

<1> About the situation when an invoice agreement may give the buyer the right to deduct VAT paid as part of an advance payment, read the article “VAT on advance payment. Commentary of the Ministry of Finance", N 4, 2009.

The invoice agreement must also indicate all the buyer’s details identifying him as a party to the agreement. An invoice agreement should be considered as a document confirming expenses for the purposes of calculating income tax, provided that it meets the requirements for primary accounting documents.

We especially emphasize that the buyer has the right to pay only part of the goods indicated in the invoice (in the payment order, in the “Base of payment” column, the paid goods should be noted).

Features of payment by invoice - all important information about this procedure

This action will still be considered an acceptance of the offer, and the contract is recognized as concluded in terms of paid goods, of course, in the absence of objections from the supplier regarding the number of goods to be transferred (Resolution of the Federal Antimonopoly Service ZSO dated 02.06.2009 N F04-3136/2009(7440-A45 -eleven)). This conclusion is based on paragraph 58 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 01.07.1996, according to which, in order to recognize the corresponding actions of the addressee of the offer as acceptance, the Code does not require fulfillment of the terms of the offer in full. For these purposes, to qualify the specified actions as acceptance, it is sufficient that the person who received the offer (including the draft contract) began to execute it on the terms specified in the offer and within the period established for its acceptance.

If the potential buyer pays the supplier part of the invoice amount, which cannot be qualified as payment for part of the goods, the contract cannot be considered concluded and the supplier is not obliged to transfer the goods to the buyer (Resolution of the Federal Antimonopoly Service NWO dated 10/12/2009 N A05-4696/2009).

In the situation under consideration, when the invoice is simultaneously considered as an agreement in writing, it is subject to the requirements of Art. 160 Civil Code of the Russian Federation. By virtue of clause 2 of this article, the use of facsimile reproduction of a signature using mechanical or other copying means, an electronic digital signature or another analogue of a handwritten signature when making transactions is permitted in cases and in the manner provided for by law, other legal acts or agreement of the parties. Therefore, the absence of an indication in the invoice that the use of fax is equivalent to compliance with the written form of the transaction entails the need to transfer the original invoice (with the “live” signature of the seller) to the buyer.

Simplified issues an invoice: when, to whom and how many copies

“Simplers” are not payers of value added tax. But in some cases they have to issue invoices. When? How many copies? When do you have to submit your VAT return? It depends on the type of situations involved, the requirements of the law and your counterparties. Use the convenient table of situations.

The law clearly says: if you have issued an invoice with the allocated amount of value added tax, fill out a VAT return, even if there is no VAT amount to pay (subclause 1, clause 5, article 173 of the Tax Code of the Russian Federation). Let us highlight two important points:

Invoice as the basis for the obligation to pay

Very often, the parties enter into an agreement (whether it is a supply agreement or a contract for the provision of paid services) a condition that the buyer (customer) is obliged to pay for the goods (work, service) within the agreed period after the invoice is issued by the supplier (contractor, performer). And in the future, the obligated party (buyer, customer) does not transfer money in the absence of an invoice, regardless of the actual transfer of goods (performance of work, provision of services). As a rule, the creditor (supplier, contractor) is forced to go to court. Let's see how arbitrators qualify the absence of an invoice for payment. In particular, does it relieve the buyer from the obligation to pay for the goods?

To answer this question, it is necessary to establish whether the buyer (customer) had the opportunity to pay for goods (work, services) without receiving invoices from the supplier (contractor, performer). In other words, is the absence of an invoice after the parties have signed invoices for the transfer of goods, certificates of work performed, services rendered an obstacle to payment under the contract?

If the court determines that the fact of transfer and the cost of goods, works, services are confirmed in invoices, acts (bilateral documents signed by representatives of the parties and certified by the seals of organizations), the buyer (customer) does not have the right to evade payment, regardless of the presence or absence of an invoice (FAS Resolutions VVO dated 04/09/2009 N A39-3128/2008-138/21, FAS ZSO dated 05/21/2009 N F04-2923/2009(6367-A70-16), FAS MO dated 09/21/2009 N KG-A40/9159-09 , dated 06/16/2009 N KG-A40/5039-09, FAS PO dated 05/18/2009 N A57-19791/2008, FAS SZO dated 04/20/2009 N A56-46127/2008). In this case, liability measures will be applied to the debtor for failure to fulfill a monetary obligation; the period of delay is determined from the moment of transfer of goods, acceptance of the result of work, provision of services (Resolution of the Federal Antimonopoly Service of the Moscow Region dated August 11, 2009 N KG-A40/7477-09), unless otherwise established agreement <2>.

<2> For example , the buyer is obliged to make 100% payment for each batch of products in the amount according to the invoice, invoice, invoice of the supplier within 25 calendar days from the date of delivery (Resolution of the Federal Antimonopoly Service of the Moscow Region dated August 26, 2009 N KG-A40/7324 -09).

The fact is that the basis for the emergence of the customer’s obligation to pay for services by virtue of Art.

Art. 779 and 781 of the Civil Code of the Russian Federation is the fact of their proper provision. Similarly, the basis for the customer’s obligation to pay for work performed is the delivery of the result of the work to the customer (Articles 702, 740 of the Civil Code of the Russian Federation). In the same way, on the basis of paragraph 1 of Art. 486 of the Civil Code of the Russian Federation, the buyer is obliged to pay for the goods immediately before or after the seller transfers the goods to him, unless otherwise provided by the Civil Code of the Russian Federation, another law, other legal acts or a purchase and sale agreement and does not follow from the essence of the obligation (based on the general provisions of the Civil Code of the Russian Federation, based on According to the principle of compensation in civil legal relations, the receipt and acceptance of goods by one of the parties predetermines the obligation of the other party to provide consideration).

Meanwhile, in the case where the absence of an invoice is an obstacle to payment under the contract, the court considers the demands of the supplier (contractor, performer) to recover from the buyer (customer) the cost of goods (work, services) in case of non-compliance with the obligation to issue an invoice for payment stipulated in the contract, unfounded.

For example , the court recognizes that the debtor did not delay the fulfillment of the obligation if the beginning of the payment period by the parties is associated with the fact of issuing invoices (the contract states: payments for work performed are made by the client within three banking days from the date of invoice). In this situation, it is impossible to establish the beginning of the delay in fulfilling a monetary obligation; therefore, the debtor cannot be required to pay a penalty (Resolutions of the Federal Antimonopoly Service of the North-West District dated September 30, 2009 N A56-30104/2008, FAS Moscow Region dated January 20, 2009 N KG-A40/12867-08). This situation is especially typical for communication services (Resolution of the Federal Antimonopoly Service of the Moscow Region dated May 14, 2009 N KG-A40/3894-09).

Thus, suppliers who are unable to provide timely invoices may be advised not to include provisions in their supply agreements that make the buyer's obligation to remit payment amounts solely at the time of receipt of the invoice.

E.V. Ermolaeva

Journal expert

"Trade:

Accounting

and taxation"