VAT and simplified taxation system. Agreement without VAT: a sample for individual entrepreneurs and LLC VAT is not subject to VAT due to the application

What is not subject to VAT, see Article 146 of the Tax Code. First of all, these are operations that are not implementation. Also in the code there is a list of transactions that are not subject to VAT due to the exemption. But it is dangerous to confuse them.

How to recover VAT from an advance -

What transactions are not subject to VAT

There are two types of transactions from which companies and entrepreneurs have the right not to charge tax. The first type is transactions that are taxable. The second type - transactions that are from VAT taxation.

Operations that are not subject to taxation

The Tax Code has a list of transactions for which VAT is charged. To determine what is not subject to VAT, you need to look at paragraph 1 of Article 146 of the Tax Code of the Russian Federation. If the operation does not meet the criteria from this article, then it is not an object. So, this is a transaction that is not subject to VAT taxation. For example, these are penalties and fines that the company transfers under an agreement with a counterparty.

In addition, the Tax Code has a list of operations that are not an object. Such transactions are not subject to VAT on the basis of paragraph 2 of Article 146 of the Tax Code.

First of all, these are transactions that, according to the law, are not sales (Article 146 of the Tax Code of the Russian Federation). To understand in which cases a transaction is not subject to VAT, you need to look at paragraph 3 of Article 39 of the Tax Code. It lists operations that are not recognized as implementations. For example:

• transfer of assets to the successor during the reorganization of the company (subclause 2, clause 3, article 39 of the Tax Code of the Russian Federation);
• transfer of property to a member of a business company within the limits of his initial contribution upon his withdrawal from the company, as well as upon liquidation of the company (subclause 5, clause 3, article 39 of the Tax Code of the Russian Federation);
• transactions with the circulation of foreign currency, except for numismatics (subclause 1, clause 3, article 39 of the Tax Code of the Russian Federation);
• transfer of property, if such an operation is of an investment nature (subclause 4, clause 3, article 39 of the Tax Code of the Russian Federation).

In addition to such transactions, transactions not subject to VAT include:

• gratuitous transfer of residential buildings, kindergartens, roads, power grids and other facilities to state authorities and local governments (subclause 2, clause 2, article 146 of the Tax Code of the Russian Federation);
• transfer of property of state and municipal enterprises during privatization (subclause 3, clause 2, article 146 of the Tax Code of the Russian Federation);
• sale of land plots and shares in them (subclause 6, clause 2, article 146 of the Tax Code of the Russian Federation);
• transfer of property rights to the legal successor of the organization (subclause 7, clause 2, article 146 of the Tax Code of the Russian Federation).

For some transactions that are exempt from VAT, the organization may pay this tax (ie, waive the exemption). The list of such operations is established in paragraph 3 of Article 149 of the Tax Code of the Russian Federation. It is up to the organization to decide whether or not to use the exemption for such transactions.

If an organization applies an exemption, then VAT presented by suppliers of goods (works, services) used in the implementation of such operations cannot be deducted. Include input tax amounts in the cost of such goods (works, services). How to pay VAT on tax-exempt transactions >>>

Operations exempted from tax by law

The following transactions are exempt from VAT:

• sale of medical goods specified in the closed list (approved by Decree of the Government of the Russian Federation of September 30, 2015 No. 1042, subparagraph 1, paragraph 2, article 149 of the Tax Code of the Russian Federation);
• sale by canteens of educational and medical institutions of food products produced by catering organizations (subparagraph 5, clause 2, article 149 of the Tax Code of the Russian Federation);
• transfer of goods and property rights to charity (subclause 12, clause 3, article 149 of the Tax Code of the Russian Federation);
• issuance of guarantees and guarantees by non-banking organizations (subclause 15.3, clause 3, article 149 of the Tax Code of the Russian Federation);
• sale of residential buildings, premises and shares in them (subparagraph 22, clause 3, article 149 of the Tax Code of the Russian Federation);
• transfer for advertising purposes of goods, the cost of acquiring or creating which does not exceed 100 rubles per unit (subclause 25, clause 3, article 149 of the Tax Code of the Russian Federation).

A complete list of non-taxable VAT transactions can be found in Article 149 of the Tax Code.

Are VAT exemptions valid in 2019?

Answered by Olga Duminskaya,

Counselor of the State Civil Service of the Russian Federation, 2nd class

« Yes. Companies still have the right not to tax the sale of goods, works, services specified in Article 149 of the Tax Code. For example, you do not need to calculate VAT on the transfer of promotional goods worth 100 rubles. and less.
Only the exemption for waste paper was canceled (clause 2, article 2 of the Federal Law of June 2, 2016 No. 174-FZ). At the same time, in this case, the buyer, as a tax agent, must charge VAT in the same manner as when buying scrap metal (clause 8, article 161 of the Tax Code). Therefore, buyers of waste paper can use clarifications for companies purchasing scrap metal.»

Read about other changes in VAT.

What transactions are subject to VAT in 2019

The transactions subject to VAT include:

• sale on the territory of Russia of goods, works, services and collateral, including under a compensation or novation agreement (subclause 1 clause 1 article 146 of the Tax Code of the Russian Federation);
• transfer of ownership of goods, the results of work performed and the provision of services free of charge (subclause 1 clause 1 article 146 of the Tax Code of the Russian Federation);
• transfer of goods, works and services for own needs (subclause 2, clause 1, article 146 of the Tax Code of the Russian Federation);
• performance of construction and installation work on their own for their own needs (subclause 3, clause 1, article 146 of the Tax Code of the Russian Federation).
• importation of goods into the territory of Russia (subclause 4, clause 1, article 146 of the Tax Code of the Russian Federation).

Note that organizations and entrepreneurs have the right to receive exemption from VAT. As a general rule, you can use the exemption if the proceeds without VAT from the sale of goods (works, services) for the three previous consecutive calendar months did not exceed 2,000,000 rubles. (Clause 1, Article 145 of the Tax Code). Some features have conditions for exemption from VAT:

Example of revenue calculation for using the VAT exemption:

LLC “Trading firm “Germes”” sells non-excisable goods. From May 1, the organization decided to exercise the right to exemption from VAT.
To do this, the accountant determined the proceeds from the sale of goods for the period February-April. At the same time, the accountant did not include advances received from buyers in the calculation. Revenue without VAT for the specified period amounted to:
- from the sale of fixed assets - 50,000 rubles;
- from the sale of non-excisable goods - 1,450,000 rubles.
The total amount of revenue, which is taken into account when determining the right to exemption from VAT, is 1,500,000 rubles. (50,000 rubles + 1,450,000 rubles). It does not exceed 2,000,000 rubles. Therefore, from May 1, Hermes can take advantage of the exemption and not pay VAT when selling non-excisable goods and other property that is not subject to excises (fixed assets, materials, etc.).

An organization or individual entrepreneur using the VAT exemption is required to issue invoices. In such invoices, do not allocate the amount of VAT, but make a note or stamp “Without tax (VAT)”. But there are exceptions >>> In addition, there are cases when such companies and entrepreneurs must submit a declaration for this tax.

What services are not subject to VAT

To understand whether services are subject to VAT or not, determine the place of their implementation. If this is the territory of Russia, but the tax will have to be charged (Article 148 of the Tax Code of the Russian Federation). How to issue an invoice for services - with or without VAT - depends on whether the services are in the list of transactions. Services not subject to VAT in 2017 are listed in paragraphs 2 and 3 of Article 149 of the Tax Code.

We list which frequent services are not subject to VAT in Russia:

• medical services provided by medical organizations (subclause 2, clause 2, article 149 of the Tax Code of the Russian Federation);
• services for the supervision and care of children in organizations of preschool education, conducting classes in circles and sections with minor children (subclause 4, clause 2, article 149 of the Tax Code of the Russian Federation);
• services for the repair and maintenance of goods under warranty without charging a fee (subclause 13, clause 2, article 149 of the Tax Code of the Russian Federation);
• funeral services (subclause 8, clause 2, article 149 of the Tax Code of the Russian Federation);
• services of sanatorium-resort and health-improving organizations (subclause 18, clause 3, article 149 of the Tax Code of the Russian Federation).

Implementation without VAT on simplified

It is possible to conclude that the sale is not subject to VAT in connection with the application of the simplified tax system, based on the wording from the articles of the Tax Code of the Russian Federation. The USN is not subject to VAT on the basis of paragraph 2 of Article 346.11 of the Tax Code of the Russian Federation. This means that in the contract with a simplified taxation system, prices are indicated without VAT.

You can work without VAT on the basis of the wording of Article 346.11 of the Tax Code of the Russian Federation:

Organizations applying the simplified taxation system shall not be recognized as taxpayers of value added tax, with the exception of value added tax payable in accordance with this Code when goods are imported into the territory of the Russian Federation and other territories under its jurisdiction (including tax amounts subject to payment at the end of the customs procedure of the free customs zone on the territory of the Special Economic Zone in the Kaliningrad Region), as well as value added tax paid in accordance with Articles 161 and 174.1 of this Code.

The primary documents of the company are also exhibited without VAT due to the use of a simplified taxation system.

The company used a common system in 2018. Since 2019, the company has switched to simplified. In 2018, the buyer transferred the advance. The company will ship the goods in advance in 2019. How to deal with value added tax? VAT calculation depends on

Chapter 26.2 of the Tax Code of the Russian Federation provides concessions for simplified companies, so their operations are not subject to VAT on the basis of paragraph 2 of Article 346.11.

Such companies do not issue invoices in accordance with the same paragraph from Article 346.11 of the Tax Code of the Russian Federation, even with the mark “excluding VAT”. An exception when you will have to issue an invoice and transfer VAT:

• the organization is a commission agent or agent who purchases or sells goods on its own behalf, but in the interests of the committent or principal;
• the organization is a VAT tax agent;
• the organization is a participant in a simple partnership agreement that conducts common business, or a trustee, and under this agreement receives advances or ships goods.

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When answering the question of what is subject to VAT, it is necessary to pay attention to 2 aspects: is the operation subject to VAT and is it not named in Art. 149 of the Tax Code of the Russian Federation. The object of taxation includes 4 groups of operations (clause 1 of article 146 of the Tax Code of the Russian Federation):

• sale on the territory of the Russian Federation of goods (works, services), collateral, transfer of goods (works, services) on the basis of compensation or innovation, transfer of property rights. At the same time, the sale can be both paid and free of charge (clause 1, clause 1, article 146 of the Tax Code of the Russian Federation);
• transfer of goods (works, services) for own needs, i.e. not for the purpose of obtaining income from third parties with their help, but for the needs of the organization itself. Such a transfer is subject to VAT if the costs for it are not recognized for profit taxation purposes (clause 2, clause 1, article 146 of the Tax Code of the Russian Federation). Because they cannot be recognized as economically justified (Article 252 of the Tax Code of the Russian Federation), or they are listed among the expenses that are not taken into account when calculating income tax (Article 270 of the Tax Code of the Russian Federation). At the same time, the fact of the transfer of goods must be documented (for example, when transferring goods from one unit to another, TORG-13 is issued);
• performance of construction and installation works for own consumption. These are construction and installation works that the payer performs on his own and for himself (clause 3, clause 1, article 146 of the Tax Code of the Russian Federation). If contractors are engaged in construction, and the organization acts as an investor or developer, then the object of VAT does not arise (Letter of the Ministry of Finance of 09.09.2010 N 03-07-10 / 12);
• importation of goods into the territory of the Russian Federation (clause 4, clause 1, article 146 of the Tax Code of the Russian Federation). We are talking about goods crossing the customs border and importing them into the territory of the customs union (clause 3, clause 1, article 2 of the Customs Code of the EAEU).

What is VAT exempt

Those transactions that are not recognized as sales do not apply to the object of VAT (clause 1, clause 2, article 146, clause 3, article 39 of the Tax Code of the Russian Federation). This is, for example:

• transactions related to the circulation of currency, except for the purposes of numismatics (clause 1 clause 3 article 39 of the Tax Code of the Russian Federation);
• transfer of fixed assets, intangible assets, other property to the successor during the reorganization of the company (clause 2, clause 3, article 39 of the Tax Code of the Russian Federation);
• transfer of property to a member of a business company within the limits of his initial contribution upon his withdrawal from the company, as well as upon liquidation of the company (clause 5, clause 3, article 39 of the Tax Code of the Russian Federation).

Other transactions that are not subject to VAT due to the fact that they are not recognized as an object of taxation are named in paragraph 2 of Art. 146 of the Tax Code of the Russian Federation. Among them:

• transfer of residential buildings, kindergartens, roads, power grids and other facilities to state authorities and local governments (clause 2, clause 2, article 146 of the Tax Code of the Russian Federation);
• transfer of property of state and municipal enterprises during privatization (clause 3, clause 2, article 146 of the Tax Code of the Russian Federation);
• sale of land plots and shares in them (clause 6, clause 2, article 146 of the Tax Code of the Russian Federation);
• transfer of property rights to the legal successor of the organization (clause 7 clause 2 article 146 of the Tax Code of the Russian Federation);
• sale of property, property rights of debtors declared bankrupt (clause 15 clause 2 article 146 of the Tax Code of the Russian Federation).

In addition, there are transactions that are considered subject to VAT, but at the same time are not subject to VAT (exempt from taxation). They are directly named in paragraphs 1-3 of Art. 149 of the Tax Code of the Russian Federation and their list is closed.

Operations not subject to VAT

These are operations for the sale of certain types of goods and services. Goods not subject to VAT include, for example:

• medical goods specified in the approved list (approved by Decree of the Government of the Russian Federation of September 30, 2015 N 1042, paragraph 1, paragraph 2, article 149 of the Tax Code of the Russian Federation);
• food products produced by catering organizations and sold by canteens of educational and medical institutions (clause 5, clause 2, article 149 of the Tax Code of the Russian Federation);
• residential buildings, residential premises, shares in them (clause 22, clause 3, article 149 of the Tax Code of the Russian Federation).

Are services subject to VAT?

In order for services to be subject to VAT, the place of their sale, firstly, must be recognized as the territory of the Russian Federation (Article 148 of the Tax Code of the Russian Federation). And secondly, they should not be named in paragraphs 2, 3 of Art. 149 of the Tax Code of the Russian Federation, which lists transactions that are not subject to VAT. In accordance with these paragraphs, the provision of the following is exempt from taxation:

• medical services by organizations and individual entrepreneurs engaged in medical activities (clause 2, clause 2, article 149 of the Tax Code of the Russian Federation);
• services for the supervision and care of children in organizations of preschool education, for conducting classes in circles, sections, studios (clause 4, clause 2, article 149 of the Tax Code of the Russian Federation);
• services for the repair and maintenance of goods and household appliances within the warranty period of their operation without charging a fee (clause 13 clause 2 article 149 of the Tax Code of the Russian Federation);
• funeral services (clause 8, clause 2, article 149 of the Tax Code of the Russian Federation);
• services of pharmaceutical organizations for the manufacture of medicines, the manufacture and repair of spectacle optics (clause 24 clause 2 article 149 of the Tax Code of the Russian Federation);
• services of sanatorium-resort, health-improving organizations, organizations for recreation and rehabilitation of children located on the territory of the Russian Federation (clause 18, clause 3, article 149 of the Tax Code of the Russian Federation).

The list of non-taxable services is quite large, so only a few of them are listed above.

Conditions for applying the exemption from VAT under Art. 149 Tax Code of the Russian Federation

Among non-taxable operations there are those that are carried out within the framework of licensed activities. So, if an organization does not have an appropriate license, then it cannot apply exemption from VAT (clause 6, article 149 of the Tax Code of the Russian Federation).

In addition, take advantage of the exemption under Art. 149 of the Tax Code of the Russian Federation can be organizations and individual entrepreneurs that act in their own interests, and not in the interests of another person under a commission agreement, assignment, etc. (Clause 7, Article 149 of the Tax Code of the Russian Federation).

And one more important nuance. With the simultaneous implementation of transactions that are subject to VAT and which are not subject to VAT under Art. 149 of the Tax Code of the Russian Federation, it is necessary to keep separate records of some and other transactions (clause 4 of article 149 of the Tax Code of the Russian Federation). And also separately take into account the input VAT on goods, works, services used in one and other operations.

Value Added Tax (VAT) is indirect, it is included in the cost of goods, works, services, property rights and presented to the buyer. Is it necessary to include VAT in a contract with a customer and how to avoid disputes with a counterparty, said Elena Vozhova, Senior Legal Counsel of the Legal Service Center.

When forming the terms of a payment agreement, everything depends on the taxation system used by the parties to the agreement (STS, OSN, other special regime), the correctness of accounting and the awareness of the parties about the rules and procedure for paying tax, as well as a clear indication in the contract of the obligations of the parties in terms of payment of VAT. Based on this, there are the following options for contracts.

Option 1. VAT in the contract is calculated separately and is indicated in the text along with the cost of goods, work, services, property rights. VAT is included in the contract. At the same time, both parties apply a common system of taxation. Accordingly, the buyer and seller stipulate in advance all the conditions for payment, execution of the agreement and their obligations in terms of taxation. In such a situation, the buyer knows the amount of VAT and, on the basis of the invoice presented to him, will pay the tax.

Option 2. The situation when one of the parties to the agreement applies a special taxation regime, for example, the simplified tax system. Then the contract makes reference to this fact. In most cases, there are no conflicts or disputes in such transactions, since initially everything is obvious: there is no obligation to calculate VAT, tax legislation does not provide for the requirement to allocate VAT as part of the contract price (see, for example, the letter of the Ministry of Finance of the Russian Federation dated June 1, 2016 No. 03-11-11/38624).

Option 3. The fact that one of the parties to the agreement has the right to receive a tax benefit (Article 145 of the Tax Code of the Russian Federation - exemption from the performance of taxpayer duties; Art. 149 of the Tax Code of the Russian Federation - the implementation of operations that are not subject to taxation) also implies the legal consequences set forth in option 2 The contracts also refer to preferential circumstances, but indicate the price of the contract as a whole. Additionally, it is recommended to request from the party that has a preferential taxation procedure documentary evidence (certificate of state registration of a legal entity, charter with the types of activities of the organization, other documents confirming the right to receive a tax benefit, exemption from taxation). However, it is not uncommon for there to be cases where there is no separate line in the contracts indicating the calculation of VAT and its amount.

Agreement without VAT

It happens that VAT is not specified in the contract at all. In this case, the seller is still obliged to present VAT to the buyer and pay it (clause 1, article 168, clause 1, article 173 of the Tax Code of the Russian Federation). However, here it is necessary to correctly calculate the tax and find out whether the amount of VAT is included in the contract or not. Depending on what the parties agree on, the formula for calculating the tax will be different.

If the companies decide that the tax is included in the price of the contract, then the formula will be:
Contract amount × 20/120 (or 10/110 - depending on the tax rate - Article 164 of the Tax Code of the Russian Federation) = VAT.

If the tax is considered in excess of the value of the agreement, then another formula must be used to calculate it:
Contract amount × 20% (or 10% - depending on the tax rate - Article 164 of the Tax Code of the Russian Federation) = VAT.

Thus, when calculating and presenting VAT for payment, it is necessary to analyze the terms of a particular agreement. In order to avoid ambiguity in the interpretation of the contract, it is additionally recommended to clearly formulate the conditions for the inclusion or non-inclusion of VAT in the contract at the stage of preparing its draft. Initially, companies must unequivocally decide whether to include VAT in the price of the contract or to pay tax on top of the price, as well as specify these conditions in detail in the contract. For payment of VAT, the seller may issue an additional invoice to the buyer for the amount of VAT in excess of the contract price. Sometimes firms enter into an additional agreement, with the help of which it is possible to resolve disputes regarding the inclusion of VAT in the contract and its payment by the buyer.

note

In order to avoid ambiguity in the interpretation of the contract, it is additionally recommended to clearly formulate the conditions for the inclusion or non-inclusion of VAT in the price of the contract at the stage of preparing its draft.

Elena Orlova, a specialist in the legal department of Sigma LLC, says: “Prior to the creation of our department, sales managers were involved in drawing up contracts in the company. In this regard, contracts with buyers were all in discord. If commercial conditions were read and corrected, then no one paid attention to accounting nuances. As a result, after some time, the chief accountant received a signed original contract, in which clients wrote whatever they wanted. Hence, there were problems in accounting, clarified declarations and disputes with the accounting departments of counterparties. Now, before signing contracts, we will definitely submit them for approval to the accounting department, so that accountants have the opportunity to make changes to tax conditions.”

price circumstances

I would like to emphasize that by the letter of the Ministry of Finance and the Federal Tax Service dated October 5, 2016 No. SD-4-3/ [email protected] clarifications were given on the issue of calculating VAT, if the price of the contract is formed without tax allocation. According to the position of officials, "the circumstances of the formation of the price of the contract must be established in each specific case on the basis of evidence in their totality and connection." In other words, the state bodies in their position confirm the need for a clear regulation of the procedure for accruing and paying VAT when drawing up agreements. As follows from paragraph 17 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of May 30, 2014 No. 33, when calculating the amount of VAT payable, it should be taken into account that, within the meaning of the provisions of subparagraphs 1 and 4 of Article 168 of the Tax Code of the Russian Federation, the amount of tax charged to the buyer when selling goods (works, services), transfer of property rights, should be taken into account when determining the final amount of the price specified in the contract and highlighted in the settlement and primary accounting documents, invoices as a separate line. At the same time, the burden of ensuring the fulfillment of these requirements lies with the seller as a taxpayer who is obliged to take into account such a sale transaction when forming the tax base and calculating the tax payable to the budget at the end of the corresponding period.

In this regard, if there is no direct indication in the contract that the price set therein does not include the amount of tax, and otherwise does not follow from the circumstances preceding the conclusion of the agreement or other conditions of the contract, the courts should proceed from the fact that the presented the buyer is allocated the amount of tax by the seller as the last of the price indicated in the contract, for which it is determined by the calculation method

(Clause 4, Article 164 of the Tax Code of the Russian Federation). Thus, according to the conclusions of the court, if, based on the terms of the contract and other circumstances related to the conclusion of the contract, it follows that the price indicated in it is formed without tax, the application of the estimated tax rate provided for by paragraph 4 of Article 164 of the Tax Code is unreasonable.

Organizations applying the simplified taxation system (STS) are exempted from the obligation to calculate and pay certain tax payments, including VAT. However, in some cases, companies on the simplified tax system are obliged to transfer this tax to the budget and submit reports to the Federal Tax Service. In the article, we will consider such situations and all the subtleties of the relationship between VAT and the simplified tax system.

Based on paragraph 5 of Article 346.11 of the Tax Code, companies applying the simplified tax system may in some cases be recognized as VAT tax agents, namely:

• when renting property from state authorities and local self-government;
• when purchasing goods (works, services) in the territory of Russia, the sellers of which are foreign persons who are not registered with the bodies of the Federal Tax Service of the Russian Federation;
• acting as an intermediary involved in settlements in the sale of goods of foreign persons who are not registered with the bodies of the Federal Tax Service of the Russian Federation;
• when buying or receiving state or municipal property that is not assigned to any institutions;
• when selling property that is subject to sale by a court decision, as well as confiscated property, ownerless, bought up and found valuables (treasures);
• in some other cases established by Article 161 of the Tax Code of the Russian Federation.

Most often, in practice, there are leases of state property and the purchase of goods from foreigners - we will talk about them in more detail.

Lease of state and municipal property

By renting property from state authorities and local governments, a company on the simplified tax system becomes a tax agent. Consequently, she is charged with the obligation to transfer VAT from the rent to the budget. Depending on the terms of the contract, settlements with the lessor can be carried out in two ways:

1. VAT is included in the rent. The tax is calculated as follows: VAT = AP × 18/118, where AP - the amount of rent under the contract. In this case, the lessee transfers to the lessor the amount of the rent for the property, reduced by the amount of VAT, which is subject to transfer to the budget in the prescribed manner.
2. VAT is not included in the rent. In this case, the tax is calculated according to the formula: VAT = AP × 18%, where AP - the amount of rent under the contract. In this case, the landlord receives the full amount specified in the contract, and the tenant transfers VAT to the budget from his own funds.

Let's look at the difference between these options with an example. Ajax LLC, which uses the USN, decided to rent premises from a public authority. The contract states that the monthly rent is 236 000 rubles, including VAT - 36 000 rubles. Thus, the landlord receives monthly 200 000 rubles as payment for the rent, and the remaining 36,000 rubles LLC Ajax, which in this transaction acts as a tax agent, withholds and transfers to the budget.

If VAT were not allocated in the contract, then the amount of the monthly rental fee should have been 200,000 rubles, which the lessor would have received in full. At the same time, Ajax LLC had to withhold VAT in the amount of 36,000 rubles a month from its own funds and transfer the tax to the budget in the prescribed manner.

Transactions that entailed the calculation of VAT are formalized in organizations on the simplified tax system by drawing up an invoice. The tax amount is divided into 3 parts, each of which is subject to transfer to the budget no later than the 25th day of the month following the reporting quarter. After payment, the amount of VAT can be taken into account as part of the expenses of the quarter in which it was paid.

Purchase from foreign companies in Russia

In the event that a domestic company purchases goods (works, services) in Russia from a foreign organization that is not registered with the Russian tax service, it is also charged with the role of a tax agent. And with it - the obligation to determine the tax base for VAT, calculate, withhold and transfer this tax to the budget.

For example, Ajax LLC, mentioned above, decided to use the services of a European company that does not have a representative office in Russia. Thus, the domestic organization is recognized as a tax agent for this transaction: it is obliged to calculate VAT and pay it to the budget. According to the terms of the contract, the payment for services is 354 000 rubles, and it includes all taxes and fees payable in accordance with the legislation of the Russian Federation. Therefore, VAT is already included in the payment, although it is not allocated as a separate amount.

Using the formula above, we calculate the amount of VAT: 354 000 * 18 / 118 = 54 000 rubles. This means that Ajax LLC must pay for the services received 300 000 rubles directly to a European company, and the rest 54 000 rubles should be retained and transferred to the budget as VAT.

We have considered common situations where “simplistic” firms act as a tax agent for VAT, that is, they calculate and transfer tax to the budget, in one way or another withholding its amount from the funds of the counterparty. However, sometimes companies on the simplified tax system themselves acquire the role of a taxpayer. We will talk about the cases in which this happens.

When a company on the simplified tax system becomes a VAT payer

In general, companies applying the simplified tax system are exempt from paying VAT. However, in some situations they are recognized as payers of this tax. What are these situations?

Import of goods

According to article 146 of the Tax Code of the Russian Federation, goods imported into the country are subject to taxation. In accordance with paragraphs 2 and 3 articles 346.11, companies and individual entrepreneurs applying the simplified tax system, when importing goods into the territory of Russia, have an obligation to pay VAT.

The deadline for paying VAT when importing goods from the countries of the Customs Union may vary depending on the customs procedure under which they are placed, namely:

• in relation to goods imported for domestic consumption - before the release of goods;
• in relation to goods that are imported temporarily - before the release of goods in accordance with the customs procedure for temporary import (admission) upon payment of the entire amount of import customs duties and taxes payable for the established period of temporary import;

The deadlines for paying VAT indicated above are established respectively by Articles 211 and 283 Customs Code of the Customs Union.

The calculation of the amount of VAT payable is made according to the formula:

VAT = (Customs value of goods + Customs duty + Excise tax)* VAT rate

If goods are imported from countries - members of the Eurasian Economic Union, then the procedure for paying VAT will be somewhat different. The tax amount is calculated according to the formula:

VAT = (Transaction price + Excise) * VAT rate

Also read on the topic: "" - what is the maximum share of VAT deductions not attracting the attention of the tax authorities?

The deadline for VAT payment in this case is no later than the 20th day of the month following the one in which the goods were registered.

Issuing VAT invoices

Organizations applying the simplified tax system, when issuing invoices with the allocation of the amount of VAT on the basis of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, have an obligation to pay tax to the budget. In addition, in this case, the organization must report on VAT by submitting a declaration to the Federal Tax Service via electronic communication channels no later than the 25th day of the month following the end of the tax period.

The legislation also establishes cases when "simplifiers" must keep a Register of received and issued invoices. This obligation arises when an organization carries out intermediary activities in the interests of other persons, when carrying out agency and commission operations on its own behalf, as well as when operating under a freight forwarding agreement in the interests of other persons, if the company takes into account the amounts received under such agreements as part of income from the simplified tax system.

Operations under certain types of contracts

Other cases, when “simplistic” companies have an obligation to pay VAT to the budget, are associated with certain types of contracts on the basis of which transactions are carried out. This group includes simple and investment partnership agreements, an agreement on trust management of property or a concession agreement on the territory of Russia. In these cases, the company, in addition to paying the tax, must submit a VAT return in the prescribed manner.

When companies on the simplified tax system must prepare invoices

As part of the activities under the above types of agreements (simple and investment partnerships, trust management or concession agreement), the partnership participant, concessionaire or trustee is obliged to issue the appropriate invoices.

The law also provides for other situations when companies on the simplified tax system must draw up invoices. For example, when a commission company ships goods of a consignor - a VAT payer. Or a “simplistic” intermediary who takes part in the settlements receives an advance payment or ships goods belonging to a foreign company that is not registered with the tax authorities of the Russian Federation.

Double taxation: coming changes

Companies on the simplified tax system, which by law must pay VAT, sometimes find themselves in a situation of double taxation: the amount of tax paid is included in sales income and, therefore, in the taxable base for a single tax in connection with the simplified tax system. This happens, for example, when a “simplified” invoice is issued with a dedicated VAT.

To avoid such situations, amendments have been made to the Tax Code, which will come into force on January 1, 2016. According to these changes, companies on the simplified tax system, as well as payers, will no longer have to take into account the amount of tax received on invoices with allocated VAT as part of the revenue.

VAT is not subject to tax according to chapter 26 2 of the tax code of the Russian Federation

Other taxes are paid by organizations and individual entrepreneurs applying the simplified tax system in accordance with the legislation on taxes and fees. In accordance with paragraph 4 of Art. 346.11 of the Tax Code of the Russian Federation for organizations and individual entrepreneurs using the simplified tax system, the following remain valid: a) the procedure for conducting cash transactions. The Central Bank of the Russian Federation approved Instruction No. 3210-U dated March 11, 2014 “On the Procedure for Conducting Cash Operations by Legal Entities and the Simplified Procedure for Conducting Cash Operations by Individual Entrepreneurs and Small Business Entities” and Instruction No. 3073-U dated October 7, 2013 “ On the implementation of cash settlements”, which came into force on June 1, 2014; b) the procedure for submitting statistical reports.

Organizations that have received the status of a participant in a project for the implementation of research, development and commercialization of their results in accordance with the Federal Law "On the Skolkovo Innovation Center" and keeping records of income and expenses in the manner prescribed by Chapter 26.2 of the Tax Code of the Russian Federation determine the date of receipt of income (expenditure) on a cash basis without taking into account the restriction specified in the first paragraph of this paragraph. Open article

• Article 346.6 of the Tax Code of the Russian Federation Tax base Upon transition to the payment of the unified agricultural tax by an organization applying the simplified taxation system in accordance with Chapter 26.2 of the Tax Code of the Russian Federation, the residual value of the acquired (constructed, manufactured) fixed assets and acquired (created by the organization itself) is reflected in the accounting as of the date of such transition ) intangible assets, determined in accordance with paragraph 3 of Article 346.25 of the Tax Code of the Russian Federation.

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Attention

For non-fulfillment or improper fulfillment of obligations arising from this agreement, the Parties shall be liable, the basis and amount of which are established by the current legislation of the Russian Federation. 4.2. Disputes and disagreements arising between the Parties in connection with the fulfillment of obligations under this Agreement shall be resolved through negotiations, including in the complaint procedure.

4.3. If the Parties fail to settle the dispute in the pre-trial procedure, it is submitted by the interested party for resolution to the Arbitration Court. 5. Validity and procedure for terminating the contract 5.1. The Agreement comes into force from the moment of signing and is valid until the parties fully fulfill their obligations under this Agreement.
6. Final provisions 6.1.

Chapter 26.2. simplified taxation system

Payment for services under this agreement is made within 5 (five) banking days from the date of issuing an invoice and / or signing the Service Agreement, by non-cash transfer of funds to the account of the Contractor, or in any other way. 3. Rights and obligations of the parties 3.1. The customer undertakes: 3.1.1.

Important

Provide unhindered access to the equipment to be repaired.3.1.2. Accept the rendered services.3.1.2. Make full payment for the services rendered in the amount and in the manner prescribed by this Agreement.

3.2.

The Contractor undertakes: 3.2.1. Provide equipment repair services. 3.2.2. The Contractor has the right to engage in the provision of services that are not employees of the Contractor.

4. Responsibility of the parties and resolution of disputes 4.1.

Chapter 26.2 of the Tax Code of the Russian Federation Simplified taxation system (usn)

Organizations applying the simplified taxation system shall not be recognized as taxpayers of value added tax, with the exception of value added tax payable in accordance with this Code when goods are imported into the territory of the Russian Federation and other territories under its jurisdiction (including tax amounts subject to payment at the end of the customs procedure of the free customs zone on the territory of the Special Economic Zone in the Kaliningrad Region), as well as value added tax paid in accordance with Articles 161 and 174.1 of this Code. Paragraph two became invalid on January 1, 2010. Other taxes, fees and insurance premiums are paid by organizations applying the simplified taxation system in accordance with the legislation on taxes and fees.

3.

Tax Code of the Russian Federation

• for limited liability companies, all tax payments must be made exclusively by bank transfer;
• documentary evidence of expenses deducted from income is required;
• the presence of restrictions on expenses for which the tax base can be reduced (the list is in Article 346.16 of the Tax Code of the Russian Federation).
• the need for accounting by legal entities;
• low probability of official partnership with individual entrepreneurs and organizations that are VAT payers;
• the need for timely payment of advance payments according to the data of the Book of Accounting for Expenses and Income;
• the requirement to conduct cash transactions in accordance with paragraph 4 of Article 346.11
• restrictions defined by the Tax Code of the Russian Federation for the simplified tax system: - for individual entrepreneurs: the number of employees must be less than 100 people, income less than 1.5 million rubles.

Article 346.11. general provisions

N 382-FZ "On Amendments to Parts One and Two of the Tax Code of the Russian Federation") provides that the application of the simplified tax system by individual entrepreneurs provides for their release from the obligation to pay: a) personal income tax (in relation to income received from entrepreneurial activity, with the exception of tax, paid from income in the form of dividends, as well as from income taxed at the tax rates provided for in paragraphs 2 and 5 of Article 224 of the Tax Code of the Russian Federation); b) tax on the property of individuals (in relation to property used for business activities, with the exception of objects of taxation by the tax on the property of individuals included in the list determined in accordance with paragraph 7 of article 378.2 of the Tax Code of the Russian Federation, taking into account the features provided for in par. 2 paragraph 10 article 378.2 of the Tax Code of the Russian Federation).

Sample contract for the provision of services by the party applying the USN

Open article

• Article 169 of the Tax Code of the Russian Federation in the event that when they determine the tax base in the manner prescribed by chapters 23, 25, 26.1 and 26.2 of the Tax Code of the Russian Federation, income in the form of remuneration from the performance of these agreements is taken into account as income.

Info

Liability of the Parties and Dispute Resolution

1.4 5. Validity and procedure for terminating the contract

1.5 6.

Final provisions

2 Certificate of delivery / acceptance of services rendered under Contract No.

Agreement No. for the provision of services in K-sk on March 04, 2018 Open Joint Stock Company Organization No. 1, hereinafter referred to as the Customer, represented by Director Ivan Ivanov acting on the basis of the Charter, on the one hand, and the Company with limited liability "Organization No. 2", hereinafter referred to as the "Contractor", represented by Director Petrov Petr Petrovich, acting on the basis of the Charter, on the other hand, have concluded this agreement as follows: 1.
Subject of the agreement 1.1.
The provisions of chapter 26.2 of the Tax Code of the Russian Federation are used in the following articles:

• Article 161 of the Tax Code of the Russian Federation Features of determining the tax base by tax agents in accordance with Chapters 26.1, 26.2, 26.3, 26.5 of the Tax Code of the Russian Federation, they calculate and pay tax on the sale of goods specified in paragraph one of this clause, starting from the period in which these persons switched to the general taxation regime, until the day the circumstances that are the basis for loss of the right to exemption from the performance of taxpayer obligations or to the application of appropriate special tax regimes.

VAT is not subject to tax according to chapter 26.2 of the tax code of the Russian Federation

The use of a simplified taxation system is accompanied by the following positive aspects:

• the ability to choose from two taxation options “Income” and “Income reduced by the amount of expenses”;
• no need to maintain accounting records (only for individual entrepreneurs);
• lower tax rates;
• the possibility of deducting the amount of paid insurance premiums from the income received (when using the “Income minus expenses” scheme);
• no need to prove the validity of these costs during desk audits;
• the possibility of reducing the tax rate by regional legislative acts;
• the rarity of field tax audits

Payment of VAT under this taxation system is required only in case of import of products to the domestic market of the Russian Federation.

Individual entrepreneurs applying the simplified system of taxation are not recognized as taxpayers of value added tax, with the exception of value added tax payable in accordance with this Code when goods are imported into the territory of the Russian Federation and other territories under its jurisdiction (including tax amounts, payable at the end of the customs procedure of the free customs zone on the territory of the Special Economic Zone in the Kaliningrad Region), as well as value added tax paid in accordance with Articles 161 and 174.1 of this Code. Paragraph two became invalid on January 1, 2010. Other taxes, fees and insurance premiums are paid by individual entrepreneurs using the simplified taxation system in accordance with the legislation on taxes and fees.