Article 145 of the Tax Code of the Russian Federation. Exemption from the duties of a taxpayer

Who can be exempt from paying VAT under Article 145 of the Tax Code of the Russian Federation

Both organizations and individual entrepreneurs (IP) can receive VAT exemption. The main thing is that the following condition is met: the amount of revenue from the sale of goods, works, services (excluding VAT) for the three previous consecutive calendar months should not exceed 2 million rubles. (clause 1 of article 145 of the Tax Code of the Russian Federation).

Note that these three months are not necessarily a quarter. This can be any three consecutive months - for example, February-March-April, August-September-November, etc.

Not entitled to receive exemption from VAT (clause 2 of Article 145 of the Tax Code of the Russian Federation):

• persons selling excisable goods;
• organizations that are exempt from VAT as participants in the Skolkovo project.

Newly created organizations and newly registered individual entrepreneurs also cannot apply for exemption during the first three months of work. They don't yet have the required three months' revenue.

From 01.01.2019, firms and individual entrepreneurs on the Unified Agricultural Tax pay VAT to the budget. They also receive the right to tax exemption under Article 145 of the Tax Code of the Russian Federation. However, both the conditions of exemption and the form of notification of exemption are different for such payers. The officials mentioned them in passing, and we will not dwell on them either.

Clause 3 of Article 145 of the Tax Code of the Russian Federation

Exemption in accordance with paragraph 1 of this article does not apply to obligations arising in connection with the import of goods into the territory of the Russian Federation and other territories under its jurisdiction, subject to taxation in accordance with subparagraph 4 of paragraph 1 of Article 146 of this Code. (As amended by Federal Law No. 306-FZ dated November 27, 2010)

The persons specified in paragraph one of paragraph 1 of this article, using the right to an exemption, must submit the appropriate written notification and the documents specified in paragraph 6 of this article, which confirm the right to such an exemption, to the tax authority at the place of their registration. (As amended by Federal Law No. 335-FZ dated November 27, 2017)

The persons specified in paragraph two of paragraph 1 of this article who exercise the right to exemption must submit a corresponding written notification to the tax authority at the place of their registration. (Paragraph introduced - Federal Law dated November 27, 2017 No. 335-FZ)

The specified documents and (or) notification are submitted no later than the 20th day of the month from which the right to exemption is exercised. (As amended by Federal Law No. 335-FZ dated November 27, 2017)

The form of notification of the use of the right to exemption is approved by the Ministry of Finance of the Russian Federation. (As amended by Federal Law No. 58-FZ dated June 29, 2004)

How to calculate revenue indicator

When calculating the limit, you need to include only revenue from VAT-taxable transactions.
Example 1. Determination of revenue for VAT exemption A company on the general system plans to exercise the right to VAT exemption from August 2021.
For the three previous consecutive calendar months, revenue from the sale of non-excisable goods amounted to:

• May – 600,000 rub. (including VAT – 100,000 rubles);
• June – 720,000 rub. (including VAT – 120,000 rubles);
• July – 960,000 rub. (including VAT – 160,000 rubles).

In addition, in May the company sold a plot of land it owned for RUB 340,000.

The total amount of revenue for the three indicated months excluding VAT amounted to 2,240,000 rubles. (600,000 – 100,000 + 720,000 – 120,000 + 960,000 – 160,000 + 340,000).

Operations for the sale of a land plot are not recognized as subject to VAT taxation (subclause 6, clause 2, article 146 of the Tax Code of the Russian Federation). Therefore, this amount does not need to be taken into account when determining revenue for applying VAT exemption.

Since 1,900,000 (2,240,000 – 340,000) is less than 2,000,000, the company has the right to send a notification to the tax office about the use of the right to VAT exemption from August.

When determining the amount of revenue, income received from the sale of excisable goods is not taken into account, since exemptions cannot be applied to such transactions. The list of such goods is in Article 181 of the Tax Code of the Russian Federation.

If a company sold both excisable and non-excise goods, then it can receive an exemption from VAT. However, only transactions involving the sale of non-excisable goods do not need to be taxed. In this case, the company must keep separate records of sales of such goods.

Clause 8, Article 145 of the Tax Code of the Russian Federation

Amounts of tax accepted by the taxpayer for deduction in accordance with Articles 171 and 172 of this Code before using the right to exemption in accordance with this article, for goods (work, services), including fixed assets and intangible assets acquired for carrying out operations, recognized as objects of taxation in accordance with this chapter, but not used for these operations, after the taxpayer sends a notice of use of the right to exemption, they are subject to restoration in the last tax period before the start of using the right to exemption, and in the event that an organization or individual entrepreneur begins to use the right for the exemption provided for by this article, from the second or third month of the quarter, the restoration of tax amounts is carried out in the tax period, starting from which these persons exercise the right to exemption. (As amended by Federal Law No. 366-FZ dated November 24, 2014)

Amounts of tax paid on goods (work, services) acquired by a taxpayer who has lost the right to exemption in accordance with this article, before the loss of this right, and used by the taxpayer after he has lost this right when carrying out transactions recognized as objects of taxation in accordance with this chapter, are accepted for deduction in the manner established by Articles 171 and 172 of this Code.
←Article 144 of the Tax Code of the Russian Federation, Article 145.1 of the Tax Code of the Russian Federation→

Documents for notification

From 04/01/2019, two new forms of notifications on the use of the right to VAT exemption are in effect. A separate form was introduced for Unified Agricultural Tax payers and a separate one for all others - those whose revenue did not exceed 2 million rubles for three months.

The new forms were approved by Order of the Ministry of Finance of the Russian Federation dated December 26, 2018 No. 286n. Order of the Ministry of Taxation dated July 4, 2002 No. BG-3-03/342, containing the old form of notification, has become invalid.

Along with the notification, you must submit (paragraph 2, paragraph 3, paragraph 6, article 145 of the Tax Code of the Russian Federation):

• extract from the balance sheet (for legal entities);
• an extract from the books of income and expenses and business transactions (for individual entrepreneurs);
• extract from the sales book.

Copies of logs of invoices received and issued are no longer needed.

Extract statements in any form. But please note that they must clearly show revenue for the previous three months.

An extract from the balance sheet is provided in the form of a certificate of revenue, which indicates the total amount of revenue excluding VAT for the last three months and broken down by each month, or in the form of a copy of the balance sheet and (or) income statement.

An extract from the sales book is usually drawn up in the form of a certificate, which indicates the total line from the book for the last three months.

How to get VAT exemption

You can be exempt from tax from the beginning of any month - you don’t have to wait until the beginning of the year or quarter. To do this, calculate the amount of revenue, collect documents and submit them along with the application to the tax office before the 20th day of the month in which you are applying for exemption.

Here is a list of documents for the tax office:

• notification in the form approved by Order of the Ministry of Finance dated December 26, 2019 No. 286n “On the use of the right to exemption from the performance of taxpayer obligations related to the calculation and payment of VAT”;
• invoice journal and its copy;
• an extract from the balance sheet for a company or an extract from the KUDiR for an individual entrepreneur;
• extract from the sales ledger.

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Responsibilities of a VAT exempt person

Taxpayer exempt from VAT:

• is not exempt from issuing an invoice to the buyer. In invoices, it does not highlight VAT, but makes the inscription: “Without VAT” (Clause 5 of Article 168 of the Tax Code of the Russian Federation);
• must keep a sales book (subclause 1, clause 3, article 169 of the Tax Code of the Russian Federation);
• does not have the right to deduct VAT (subclause 1, clause 2, article 171, subclause 3, clause 1, article 170 of the Tax Code of the Russian Federation);
• includes “input” VAT in the cost of goods, works, services (subclause 3, clause 1, article 170 of the Tax Code of the Russian Federation).

At the same time, a VAT exempt from duties is not obliged to:

• calculate and pay VAT, except for cases when he issues an invoice with an allocated tax (clause 5 of Article 173 of the Tax Code of the Russian Federation);
• submit a VAT return (letter of the Federal Tax Service of Russia dated April 29, 2013 No. ED-4-3/ [email protected] );
• keep a purchase book (letter of the Federal Tax Service of Russia dated April 29, 2013 No. ED-4-3 / [email protected] ).

We must also not forget that when receiving an exemption from VAT, you are obliged to restore the generally accepted VAT deduction from the cost of goods (work, services), fixed assets, and intangible assets that will be used during the exemption period.

In what cases may an individual entrepreneur on OSNO not pay value added tax?

An entrepreneur applying the general taxation system may not pay VAT:

• when carrying out transactions not subject to value added tax. There is no need to pay VAT if the goods (work, service) being sold are specified in Art. 149 of the Tax Code of the Russian Federation.
• if the operation performed is not subject to value added tax. You can familiarize yourself with the list of situations when goods sold (work, services) are not subject to VAT in Article 146 of the Tax Code of the Russian Federation.
• If over the last 3 months the amount of income of the individual entrepreneur did not exceed 2 million rubles and there was no sale of excisable goods. If the specified conditions are met, the entrepreneur can receive an exemption from VAT for the next 12 months.

We will consider the deadlines for submitting the declaration and paying the tax, as well as the specifics of submitting reports to the Federal Tax Service.

Nuances of recovery

The tax must be restored in the last quarter before the start of using the exemption, if the tax exemption begins in the first month of the quarter. If you began to apply the exemption from the second or third month of the quarter, then you need to restore VAT in the same quarter (clause 8 of Article 145 of the Tax Code of the Russian Federation).

One of the conditions for accepting the “input” tax for deduction is the use of the object in activities subject to VAT (Articles 171, 172 of the Tax Code of the Russian Federation). If the organization receives a VAT exemption, this condition is not met. This means that the deductions must be restored. The tax is restored from the cost of goods and materials remaining on the organization’s balance sheet on the date the VAT exemption begins to apply. In addition, VAT must be restored from the residual value of existing fixed assets. In this case, the residual value must be determined according to accounting data. This is confirmed by paragraph 25 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33.

Before you can begin to apply the VAT exemption, you must make entries in the sales ledger for the amount of the tax recovered.
Entries are made on the basis of invoices for which tax was previously deducted. Example 2. How to restore VAT The company will apply a VAT exemption from 01/01/2019.
As of September 30, 2019, she has a fixed asset on her balance sheet with a residual value of RUB 100,000. and goods worth 30,000 rubles. (without VAT). Previously, “input” VAT was deducted from the value of all property at a rate of 20%. Let's calculate how much tax a company must recover before being exempt from VAT. The total amount of VAT to be restored is 26,000 rubles. (RUB 100,000 × 20% + RUB 30,000 × 20%). The accountant must make the appropriate entries in the sales book for the third quarter of 2021 on September 30, 2019.

VAT and Unified Agricultural Tax

It is not for nothing that we have allocated entrepreneurs for agricultural tax purposes in a separate section. Starting from 2021, individual entrepreneurs using the unified agricultural tax are required to pay value added tax. These changes were made to the Tax Code by Law of November 27, 2021 No. 335-FZ.

Let us recall that until 2021, agricultural producers and those who provided services to them were exempt from VAT, as were individual entrepreneurs using the simplified tax system, UTII and PSN. Starting in 2021, the situation has changed and those who apply the unified agricultural tax have been made VAT payers. They are the only ones of all special regimes who must transfer value added tax to the budget. But there are some exceptions. Let's look at them.

In what cases may an individual entrepreneur using the Unified Agricultural Tax not pay VAT?

The specifics of exempting agricultural tax entrepreneurs from the obligation to pay value added tax are specified in Art. 145 Tax Code of the Russian Federation. Thus, individual entrepreneurs who meet one of the following conditions may not pay VAT in 2021:

• the amount of income for 2021 did not exceed 100 million rubles. Please note that only income from activities on the Unified Agricultural Tax is taken into account. This amount will decrease every year (see table No. 1);
• The transition to the unified agricultural tax and exemption from VAT were made in one year.

Table No. 1. Amounts of income at which individual entrepreneurs on the Unified Agricultural Tax can receive VAT exemption

In what cases will an individual entrepreneur using the Unified Agricultural Tax be unable to obtain an exemption from VAT?

1. Income for the past year exceeded the limits indicated in the table.
2. The entrepreneur has been selling excisable goods for the last three months.
3. The individual entrepreneur has not confirmed his right to be exempt from paying this tax.

What needs to be done to avoid paying VAT for individual entrepreneurs on the Unified Agricultural Tax

In order to receive an exemption from paying value added tax, agricultural tax entrepreneurs must draw up a written notification. The form of this document was approved by Order of the Ministry of Finance of Russia dated December 26, 2021 No. 286n and comes into force on April 1, 2021.

The notification must be submitted to the Federal Tax Service at the place of registration before the 20th day of the month from which the individual entrepreneur applies the exemption. After sending the notification, the entrepreneur will be able not to pay VAT for 12 months.

note

that you cannot refuse this benefit until it ends. The only case is receiving income in excess of the specified limit. If this happens, the individual entrepreneur is considered to have lost the right to exemption from value added tax from the 1st day of the month in which the excess was made.

What VAT obligations do entrepreneurs have on the Unified Agricultural Tax?

Starting from 2021, individual entrepreneurs subject to agricultural tax who have not received an exemption from paying value added tax must:

• charge VAT on the amount of sales of goods (works, services);
• pay taxes to the budget within the time limits established by law;
• submit a declaration quarterly (electronically only);
• issue invoices to counterparties with the allocated tax amount;
• keep books of purchases and sales.

But along with the obligation to pay VAT, agricultural producers received the right to reimbursement from the budget. This is a plus for those who work with companies on OSNO and issue them invoices with the allocated tax amount. But in general, entrepreneurs on the Unified Agricultural Tax have lost more than they received from the introduction of VAT. The obvious disadvantages are:

• an increase in the tax burden for those individual entrepreneurs who do not cooperate with VAT payers;
• complication of accounting, since you will have to additionally maintain books of sales and purchases, issue invoices, and submit quarterly reports;
• additional costs for an accountant, since it will be difficult for those who have not previously worked with him to immediately understand the intricacies of accounting and VAT calculation;
• costs of organizing an electronic document of turnover with the tax office for submitting value added tax reports;

Having considered in what cases an individual entrepreneur can and should work with VAT, we will briefly discuss the timing of tax payment and reporting.

Release period

Once you start using the VAT exemption under Article 145 of the Tax Code of the Russian Federation, you will not be able to refuse it within 12 calendar months (clause 4 of Article 145 of the Tax Code of the Russian Federation).

When this period expires, you must submit to the inspectorate:

• documents confirming that during the release period your revenue for every three consecutive calendar months did not exceed 2 million rubles;
• notification of the extension of the VAT exemption for the next 12 calendar months or of its refusal.

At the same time, in some circumstances the right to exemption from VAT can be lost (clause 5 of Article 145 of the Tax Code of the Russian Federation):

• if revenue for any three months exceeds 2 million rubles;
• if you sell excisable goods.

The right not to pay VAT is lost from the 1st day of the month in which the excess revenue occurred or the sale of excisable goods began (clause 5 of Article 145 of the Tax Code of the Russian Federation).

Clause 6, Article 145 of the Tax Code of the Russian Federation

Documents confirming, in accordance with paragraphs 3 and 4 of this article, the right of organizations and individual entrepreneurs specified in paragraph one of paragraph 1 of this article to release (extension of the release period) are: (As amended by Federal Law dated November 27, 2017 No. 335-FZ )

extract from the balance sheet (represented by organizations);

extract from the sales book;

an extract from the book of income and expenses and business transactions (represented by individual entrepreneurs);

(Paragraph no longer in force - Federal Law dated April 20, 2014 No. 81-FZ)

For organizations and individual entrepreneurs who have switched from a simplified taxation system to a general taxation regime, a document confirming the right to exemption is an extract from the book of income and expenses of organizations and individual entrepreneurs using the simplified taxation system. (Paragraph introduced - Federal Law dated May 17, 2007 No. 85-FZ)

For individual entrepreneurs who have switched to a general taxation regime from the taxation system for agricultural producers (unified agricultural tax), a document confirming the right to exemption is an extract from the book of income and expenses of individual entrepreneurs using the taxation system for agricultural producers (unified agricultural tax) . (Paragraph introduced - Federal Law dated May 17, 2007 No. 85-FZ)

Deadlines for submitting documents for release

It should still be taken into account that there is a general rule: you need to inform your Federal Tax Service about the application of the VAT exemption no later than the 20th day of the month from which you began to use the exemption (clause 3 of Article 145 of the Tax Code of the Russian Federation). If this deadline is violated, the inspectorate will try to refuse to apply your exemption.

But the law will not determine the consequences of violating this deadline. Therefore, delay cannot serve as a reason for refusing VAT exemption and additional tax assessment. Nothing can be done: this is the position set out in paragraph 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33.

Moreover, since the exemption from VAT is not a permit, but a notification in nature, no decision from the inspectorate is required in this regard (see Resolution of the FAS of the Volga District dated September 22, 2008 No. A65-1347/08).

So, in order to legally avoid paying VAT, you need to meet certain conditions and take the necessary actions. However, before committing to an exemption, determine whether it will benefit you.

Working without VAT seems at first glance more profitable for the company than with VAT. After all, there is no need to pay VAT, maintain tax registers and prepare reports. VAT also requires increased responsibility for documents and increases the burden on the accountant, who needs to maintain additional tax and accounting registers for VAT accounting.

However, working with VAT increases the attractiveness of your company to large buyers, most of whom operate on a common system. And applying tax deductions can make the cost of your product lower than that of your smaller competitors.

Inspectorate notification

The exercise of the right to exemption from VAT is of a notification nature. That is, you do not need to obtain permission from the tax office to do this. To take advantage of the exemption, simply file or mail to the tax office:

• notification of the use of the right to exemption in the form approved by order of the Ministry of Taxes of Russia of July 4, 2002 No. BG-3-03/342;

• extract from the Balance Sheet;

• extract from the sales book.

If an organization has switched from a simplified tax system to a general taxation system, submit a notification and a book of income and expenses to the tax office.

This is stated in paragraphs 3 and 6 of Article 145 of the Tax Code of the Russian Federation.

Submit these documents to the tax office no later than the 20th day of the month from which the organization decided to take advantage of the VAT exemption (paragraph 3, paragraph 3, article 145 of the Tax Code of the Russian Federation). If an organization sends documents by mail, then the day of their submission to the inspection is considered the sixth working day from the date of sending a registered letter (Clause 7 of Article 145 of the Tax Code of the Russian Federation).

Advice: tax legislation does not contain a requirement for mandatory sending of a notification by letter with an inventory of the attachments. However, it is better to send a registered letter to the inspectorate with a list of attachments. In this case, the organization will have evidence to support the contents of the letter.

Having submitted (sent) a package of documents to the tax office for VAT exemption, the organization will not be able to independently refuse it within 12 calendar months (clause 4 of Article 145 of the Tax Code of the Russian Federation). However, during this period, the organization may lose the right to be exempt from VAT (clause 5 of Article 145 of the Tax Code of the Russian Federation).

Advice: before exercising your right to VAT exemption, find out whether customers will agree to work with your organization on such terms. The exemption will lead to the fact that buyers will not be able to take advantage of VAT deductions for goods (work, services) purchased from your organization. Therefore, in practice, organizations prefer to work with suppliers who pay VAT.

Situation: how to prepare extracts from the Balance Sheet and Sales Ledger in order to take advantage of the VAT exemption?

Standard forms for statements are not approved by law. Therefore, extracts from the balance sheet and from the sales book can be compiled in any form. Please keep the following in mind.

To obtain exemption from VAT, an organization must confirm the amount of revenue received from the sale of goods (work, services) for the three previous calendar months (paragraph 2, paragraph 3, article 145 of the Tax Code of the Russian Federation, paragraph 2.1 of the notification on the use of the right to exemption in the form , approved by order of the Ministry of Taxes and Taxes of Russia dated July 4, 2002 No. BG-3-03/342). Therefore, statements must contain information about revenue for a period covering the three months preceding the month in which the exemption began to be used.

In an extract from a sales ledger, you can indicate the information contained in its total line. It is better to attach copies of the sales book sheets on the basis of which it was compiled to the statement.