What dates in documents will not cause tax authorities to complain?
Source: Glavbukh magazine
One of the common reasons why tax authorities may charge additional VAT or income tax to a company is confusion in the dates of primary documents, contracts, powers of attorney and invoices. Sometimes even minor discrepancies can cause a transaction to be considered fictitious.
In this article, we have listed the most common situations where it is safest to correct date discrepancies in documents.
For example, if documents are dated on a weekend or holiday, contracts are signed later than acts, invoices are issued before shipment, etc.
Although in almost all cases, companies have the opportunity to fight off additional charges, even if inspectors have already discovered discrepancies in registration.
Documents were prepared on a day off
If the contract is drawn up on a weekend, tax authorities may refuse to allow the company to take into account the costs of this transaction. However, the law does not oblige the execution of primary documents and contracts exclusively on working days.
Therefore, judges consider the tax authorities’ position to be justified only if there is other evidence that the transactions are fictitious.
For example, if the company collaborated with one-day companies that did not have the necessary resources to fulfill all obligations under the transaction (resolution of the Federal Antimonopoly Service of the Moscow District dated May 21, 2013 in case No. A40-113245/12-99-583).
How to fix. To prevent tax authorities from making claims, it is worth redoing the contract. Also, sometimes accountants bring documents issued on non-working days. Then you can arrange for the employee to work on a day off.
The invoice or document was issued before the contract
In practice, it happens that the supplier ships the goods before the companies draw up a written contract. Or the acceptance certificate is signed before the contract for the provision of services or performance of work. Tax authorities consider such a discrepancy as a sign of fictitious transactions.
How to fix. An existing contract can be renewed. But sometimes this is not possible. For example, the director of the counterparty has changed, and it is impossible to sign the agreement retroactively.
Then it is safer to draw up an additional agreement and extend the validity of the agreement for the period before its conclusion (clause 2 of Article 425 of the Civil Code of the Russian Federation).
The same clause can be made initially in the contract itself, drawn up after shipment.
Let us add that judges usually support inspectors only if, in addition to the indicated errors in the primary report, there is evidence that the supplier does not pay taxes, does not report to the inspection, etc. (determination of the Supreme Arbitration Court of the Russian Federation dated April 4, 2013 No. VAS-3073/13) .
Inspectors also check the date of the act with the period of work specified in the contract. If the act is drawn up earlier than agreed in the contract, tax authorities may consider that the primary document is unreliable. And judges can support the Federal Tax Service (resolution of the Federal Antimonopoly Service of the Far Eastern District dated September 4, 2013.
No. F03-3967/2013). For example, according to the act, the contractor performed work from March 15 to March 30. But in the contract the work period is set from April 2 to April 16. Then you can draw up an additional agreement to the contract and indicate in it the period of work corresponding to the actual one.
Or make a clause in the act that the work was completed ahead of schedule.
The invoice was issued earlier than the invoice
According to officials, the company does not have the right to deduct VAT on an invoice issued earlier than the delivery note (letter of the Ministry of Finance of Russia dated November 9, 2011 No. 03-07-09/39). Since the invoice must be drawn up within five days from the date of shipment (clause 3 of Article 168 of the Tax Code of the Russian Federation). If the supplier issued an invoice later than five days from the date of shipment, there will most likely be no claims for deduction.
The situation is different with a universal transfer document that combines an invoice and a delivery note. Tax officials admit that a company can sometimes draw up an STD before delivery.
That is, the shipment date in line 11 may differ from the date of the document in line 1 (Appendix No. 5 to the letter of the Federal Tax Service of Russia dated October 21, 2013 No. MMV-20-3 / [email protected] ). For example, if the supplier issued a UPD, but the warehouse did not have the required assortment.
Or, due to difficulties with transport, the shipment of goods was postponed.
How to fix. If you don’t want to argue with the inspectors, you need to ask the supplier to redo the invoice. But if the case goes to court, then deductions from a premature invoice can be protected (resolution of the Federal Antimonopoly Service of the Volga Region dated December 6, 2012 in case No. A55-8053/2012).
The company paid for the goods ahead of schedule
Inspectors may also have claims in a situation where the company has transferred an advance payment to the counterparty. But according to the terms of the contract, payment for goods, work or services must be made only after shipment or signing of acceptance certificates.
How to fix. It is necessary to conclude an additional agreement to the contract and indicate in it the buyer’s obligation to make an advance payment. Otherwise, the company will not be able to deduct VAT from the prepayment (clause 9 of Article 172 of the Tax Code of the Russian Federation).
Documents with the supplier were signed before its registration
Sometimes companies enter into contracts with suppliers who are newly registered. In this case, the contract may mistakenly include a date earlier than the seller’s registration. Similar shortcomings are also possible in invoices and delivery notes.
Tax authorities deduct expenses and VAT deductions on such documents. Moreover, it is often impossible to challenge inspectors’ claims even in court. Especially if there are other shortcomings in the primary document. For example, the act does not indicate specific services or work performed by the counterparty (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 28, 2013 in case No. A79-7595/2012).
In addition, the judges believe that the company must make sure that the counterparty is registered in the Unified State Register of Legal Entities (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 1, 2011 No. 10230/10).
How to fix. If possible, it is better to reissue the contract, invoices or primary documents.
In the future, it is safer to check the supplier’s registration on the nalog ru website in the “Check yourself and the counterparty” section.
The data received from the site can be printed and certified with the signature of the manager and the company seal. For suppliers in large transactions, it is advisable to obtain an extract from the Unified State Register of Legal Entities from the inspectorate.
On the day the contract was concluded, the director was on a business trip
It happens that instead of the director, another employee signs the contract. Tax authorities are unlikely to conduct an examination of signatures without special reasons.
But questions will arise if the director was on a business trip when the company entered into the contract. And this is confirmed by the business trip order. Tax authorities may claim that the director did not have the opportunity to certify the agreement.
In this regard, claims for expenses and deductions under the transaction are possible.
How to fix. It is safer to issue a power of attorney for the right to sign an agreement and indicate its details in the agreement. But do not confuse the dates in the documents (see next section).
If it is impossible to complete the documents, then deductions and expenses will most likely be defended in court.
An exception is if the tax authorities prove that the supplier is dishonest and the transaction is fictitious (resolution of the Federal Antimonopoly Service of the West Siberian District dated January 21, 2013 in case No. A81-305/2012).
The primary document or agreement was drawn up before the power of attorney for the right to sign
Tax authorities pay special attention to signatures in primary documents. Therefore, it is worth checking whether the powers of attorney for the right to sign the primary document are correctly drawn up. The date of the primary document must fit into the period of validity of the power of attorney. The same applies to contracts. Otherwise, tax authorities will consider that the documents were signed by unauthorized employees.
How to fix. It is advisable to track the validity period of not only those powers of attorney issued by the company, but also supplier documents. If the supplier’s power of attorney is issued later than the primary documents, it is worth contacting the counterparty with a request to correct this defect.
Although companies often manage to prove that expenses for goods are justified, even if, for example, the power of attorney is dated later than the contract (resolution of the Federal Antimonopoly Service of the West Siberian District dated October 9, 2012 in case No. A45-6790/2012). But it’s easier to correct documents than to sue the tax authorities.
The commission agreement was concluded after delivery
The company may instruct a commission agent to sell or purchase goods. In this case, the intermediary must enter into a supply agreement after the commission has been formalized (clause 6 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 17, 2004 No. 85).
If an agreement with an intermediary is signed when the goods have already been sold or purchased, then the tax authorities may recognize the transaction as fictitious and the commission agent as a supplier. And demand that he pay taxes on the sale of goods. Claims against the principal are also possible. Thus, tax authorities can deduct expenses and VAT deductions for the remuneration that the company paid to the intermediary.
How to fix. The safest option is to renew the commission agreement. And further. Sometimes the commission agent has a long-term contract with suppliers.
However, it is safer to sign a separate contract for the purchase of goods for the principal so that its date is later than the date of the commission agreement.
Otherwise, judges may recognize the tax authorities’ claims as legitimate (resolution of the Federal Antimonopoly Service of the West Siberian District dated April 19, 2012 in case No. A46-6559/2011).
Deeds with the customer were signed earlier than with subcontractors
Another dangerous discrepancy in dates is that the acts with subcontractors were drawn up after the customer accepted the work. Tax officials remove expenses and VAT deductions from contracts with subcontractors, considering them to be unfounded.
How to fix. It is safer to re-register the acts. Arguing with tax authorities is risky. Judges sometimes believe that a company has the right not to sign documents with a subcontractor before the customer accepts the work.
After all, the customer’s claims regarding the work performed by the subcontractor are possible (resolution of the Federal Antimonopoly Service of the North-Western District dated March 19, 2014 in case No. A13-12979/2012). But inspectors are often able to provide additional arguments that the costs are unreasonable.
For example, if the stages of work in a subcontract agreement do not correspond to the contract with the customer (resolution of the Federal Antimonopoly Service of the North-Western District dated October 9, 2012 in case No. A56-59867/2011).
Source: https://otchetonline.ru/art/buh/45978-kakie-daty-v-dokumentah-ne-vyzovut-pretenzii-nalogovikov.html
The invoice was issued later than 5 days from the date of sale: what are the consequences?
According to the official position of the Ministry of Finance of the Russian Federation, set out in letters dated November 9, 2021 No. 03-07-09/39, dated February 17, 2021 No. 03-07-08/44, dated July 2, 2021 No. 03-07-09/20, account an invoice issued before the preparation of primary documents confirming the shipment of goods is considered to be drawn up in violation of the deadline provided for in clause 3 of Art. 168 of the Code. VAT cannot be deducted on the basis of such an invoice.
At the same time, in accordance with paragraph. 2 p. 2 art. 169 of the Tax Code of the Russian Federation, invoices that allow the tax authority to identify the seller, buyer, name and cost of goods, as well as the rate and amount of tax, cannot serve as a basis for refusing a deduction.
Can an invoice be issued later than the completion certificate?
In accordance with Article 435 of the Civil Code of the Russian Federation, an invoice containing all the essential terms of the contract is recognized as an offer if this invoice is an offer addressed to a specific person, which is quite specific and expresses the intention of the person who made the offer to consider himself to have entered into an agreement with the addressee, who will be accepted (accepted) ) offer.
Date of invoice and work completion certificate
Along with the paper version, the electronic form of the invoice has legal force. This document also contains all the necessary information in compliance with all rules, which is signed by an authorized person. Such a document is the basis for deducting VAT and must be kept for four years.
We process financial transactions correctly: are the invoice and the certificate of completion interchangeable?
1. Responses of government bodies to specific questions from citizens and organizations in various sectors of activity. 2. Your practical source for applying the law.
3. The official position of government bodies in specific legal situations requiring decisions.
What date should the Certificate of Work Completed and the invoice for utilities be issued? (IN
When maintaining a purchase book, in column 2 you should indicate “the date and number of the supplier’s invoice.”
Clause 8 of the Maintenance Rules requires that invoices received from sellers be registered in the purchase ledger in chronological order as purchased goods (work performed, services rendered) are registered.
Moreover, neither the date of issuance of the invoice by the seller, nor, especially, the date of its receipt by the buyer, based on the text of paragraph 8 of the Rules, are involved in determining the order of registration of invoices in the purchase book. Although for the buyer these dates are the basis for making an entry in the purchase book.
Accounting info
but if I tell you this, based on the literal content of paragraph 3 of Art. 168 of the Tax Code of the Russian Federation, the specified paragraph establishes a requirement for an extremely late period for drawing up an invoice, but does not limit the right of the taxpayer to draw up an invoice earlier than the date of actual shipment of the goods (quote Article 168 NK - 3.
When selling goods (work, services), transferring property rights, as well as upon receiving amounts of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights, the corresponding invoices are issued no later than five calendar days) a With us, what is not prohibited is allowed: D;)
Let us recall that the primary accounting document is a supporting document with which the organization formalizes each completed business transaction (Part 1 of Article 9 of the Federal Law of 06.12.
2011 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402-FZ).
The primary accounting document must be drawn up when a fact of economic life is committed, and if this is not possible, immediately after its completion (Part 3 of Article 9 of Law No. 402-FZ).
The invoice was issued later than 5 days from the date of sale: what are the consequences?
Good afternoon Please clarify what are the deadlines for issuing invoices, whether the certificate of completed work can be considered a confirmation for the work performed, and what are the consequences if the invoice is issued by the contractor one day later than stated in the law and what consequences this will have for both sides?
Porcelain Lux LLC sells tableware (sets of tea and coffee sets). In September 2021, Porcelain Lux, according to one of the concluded contracts, shipped a batch of services, and, by agreement with another buyer, received an advance payment for the upcoming delivery. For generalized information about the timing of shipment of goods and receipt of advance payment, see the table.
Invoice deadline
Justification: According to paragraph 3 of Art. 168 of the Tax Code of the Russian Federation, when selling goods (work, services), transferring property rights, the corresponding invoices are issued no later than five days, counting from the day of shipment of the goods (performance of work, provision of services) or from the day of transfer of property rights.
Please note => You were stopped by a traffic police inspector, your actions 2021
Source: https://aktobeyurist.ru/nalogovye-vychety/mozhet-li-byt-schetfaktura-vypisana-pozdnee-akta-vypolnennyh-rabot
Act and invoice from different dates
According to the general rule of sales contracts, ownership of the goods passes at the moment of transfer of the thing. However, ownership of the shipped goods may transfer as the buyer pays for this product, if such a procedure is provided for in the sales contract (Article 223 of the Civil Code of the Russian Federation). That is, the seller actually transfers the goods to the buyer, but ownership remains with him until payment. In relation to the provisions of tax legislation, the selling organization does not have any sales at the time of transfer of goods under such agreements. Should the seller issue an invoice in such a situation, since the sale has not yet occurred?
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In practice, the moment of sale does not always coincide with the moment of shipment. This discrepancy is due to the peculiarities of the concluded contracts, which provide for the moment of transfer of ownership to the buyer after payment for goods, works, and services. In order to deal with this issue, let us turn to the norms of the Civil Code of the Russian Federation.
Subject: Date of act and invoice later than services rendered
Of course, ideally everything should coincide: both the month of provision of services and the month of execution of documents =) but until the acceptance certificate is signed, the service cannot be considered provided, and the Tax Code states that it is independent of the date of payment. and here is the date of transfer of the results of the service
More favorable in this light is the opinion presented in letters from the Ministry of Finance dated March 11, 2021 No. 03-04-05/02 and the Federal Tax Service for Moscow dated September 7, 2021 No. 24-11/57756. They state that the day of provision of services is the date of signing of the relevant act by the contractor and the customer. Therefore, invoices should be issued no earlier than this date.
Penalty for late submission of invoices
Of course, it is better if the head of your organization directly communicates with the management of the unscrupulous counterparty. But if you are completely entrusted with resolving the issue, then write an official letter on behalf of the director.
As with non-essential clients, it is better to ask the director or key account manager to communicate with counterparties. Or write a letter about submitting documents. Only in this situation there is no need to put pressure on partners. Explain your and their risks and encourage professional solidarity. Here you will need goodwill, patience and a little boringness in the good sense of the word.
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If the invoice is issued next month
The Financial Department expresses a similar point of view (see, for example, letter of the Ministry of Finance of Russia dated March 23, 2021 N 03−07−11/80). The letter of the Ministry of Finance of Russia dated 01.03.2021 N 03−07−08/55 states that for the purposes of applying VAT, the date of shipment of goods is the date of the first drawing up of the primary document issued in the name of the buyer or carrier (communication organization) for the delivery of goods to the buyer.
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An invoice is not a primary accounting document. It applies only for the purposes of Chapter 21 of the Tax Code of the Russian Federation and serves as the basis for the buyer to accept the presented amounts of VAT for deduction in the manner prescribed by this chapter (clause 1 of Article 169 of the Tax Code of the Russian Federation).
Invoice, acceptance certificate
I don’t connect the moment of PS transition with payment, just taking into account Art. 438 and 434, I thought that in order to recognize the purchase and sale agreement as concluded, at least the shipment of the goods and its payment must be documented.
Why do you connect the moment of PS transition with payment? As far as I understand, you do not have the text of the sales agreement that would contain such a condition; therefore, the ownership title passes from the moment the item is delivered, i.e. signing the transfer act (clause 1 of Article 223, Article 224 of the Civil Code of the Russian Federation)
