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Article 105.7. General Provisions on the Methods Used in Determining for Taxation Purposes Income (Profit, Proceeds) in Transactions Where Parties Are Related Persons
1. When conducting tax control in connection with transactions between related parties (including when comparing the commercial and (or) financial terms of the transaction being analyzed and its results with the commercial and (or) financial terms of comparable transactions and their results), the federal executive body , authorized for control and supervision in the field of taxes and fees, uses the following methods in the manner prescribed by this chapter:
1) method of comparable market prices;
2) method of price of subsequent sale;
3) costly method;
4) method of comparable profitability;
5) profit distribution method.
2. A combination of two or more methods is allowed.
3. The method of comparable market prices is a priority for determining for the purposes of taxation the conformity of prices used in transactions with market prices, unless otherwise provided by paragraph 2 of Article 105.10 of the Code. The use of other methods specified in subparagraphs 2-5 of paragraph 1 is allowed if the application of the method of comparable market prices is impossible or if its application does not allow one to reasonably conclude that the prices used in transactions correspond or do not correspond to market prices for tax purposes.
The method of comparable market prices is used to determine whether the price applied in a controlled transaction corresponds to the market price in the manner prescribed by Article 105.9 of the Code, if there is at least one comparable transaction on the relevant market of goods (works, services), the subject of which are identical (in their absence) - homogeneous) goods (works, services), as well as if there is sufficient information about such a transaction.
At the same time, in order to apply the method of comparable market prices in order to determine the compliance of the price applied by the taxpayer in a controlled transaction, as a comparable transaction, it is possible to use a transaction made by the specified taxpayer with persons who are not related to the specified taxpayer, provided that such a transaction is comparable with analyzed transaction.
4. In the absence of publicly available information on prices in comparable transactions with identical (homogeneous) goods (works, services), one of the methods specified in subparagraphs 2 - 5 of paragraph 1 of the article.
Unless otherwise provided by this chapter, the method shall be used which, taking into account the actual circumstances and conditions of the controlled transaction, allows the most reasonable conclusion to be drawn about the conformity or non-compliance of the price applied in the transaction with market prices.
5. The methods specified in subparagraphs 2 - 5 of paragraph 1 may also be used in determining for taxation purposes income (profit, proceeds) from a group of homogeneous transactions, the parties to which are interdependent persons.
Homogeneous transactions for the purposes of Chapter 14.2 of the Code, this Chapter and Chapters 14.4 - 14.6 of the Code are recognized as transactions, the subject of which may be identical (homogeneous) goods (works, services) and which are made in comparable commercial and (or) financial conditions.
6. When choosing the method used in determining for the purposes of taxation income (profit, revenue) in transactions, the parties to which are related parties, the completeness and reliability of the initial data, as well as the validity of the adjustments made in order to ensure the comparability of the compared transactions with the transaction being analyzed, must be taken into account. .
7. In order to apply the methods provided for in paragraph 1 of the article, in addition to information on specific transactions, publicly available information on the current level of market prices and (or) exchange quotations, as well as data from information and price agencies on prices (price intervals) for identical (homogeneous) ) goods (works, services) in the respective markets of the said goods (works, services). The use of the sources of information on market prices specified in this paragraph for the purpose of applying the methods provided for in paragraph 1 of the article is allowed provided that the transactions, data on which are contained in these sources of information, are comparable with the transaction being analyzed.
8. For the purposes of applying the methods specified in subparagraphs 2 and 3 of paragraph 1 of the article, the data of the accounting (financial) statements, on the basis of which the profitability interval is calculated, must be brought into a comparable form, ensuring that the impact of deviations in the procedure for accounting for expenses on profitability indicators is insignificant and the interval of profitability, calculated in accordance with the methods specified in subparagraphs 2 and 3 of paragraph 1 of the article.
If it is impossible to ensure the comparability of the data of the accounting (financial) statements for the purposes of calculating the interval of profitability and determining for the purposes of taxation of income (profit, proceeds) in transactions, the parties to which are interdependent persons, the methods specified in subparagraphs 4 and 5 of paragraph 1 of the article are used.
9. If the methods specified in paragraph 1 of the article do not allow determining whether the price of the goods (work, services) applied in a one-time transaction corresponds to the market price, the correspondence of the price applied in such a transaction to the market price can be determined based on from the market value of the subject of the transaction, established as a result of an independent assessment in accordance with the legislation of the Russian Federation or foreign states on valuation activities.
At the same time, for the purposes of this article, a one-time transaction means a transaction, the economic essence of which differs from the main activity of the organization and which is carried out on a one-time basis.
10. The methods specified in subparagraphs 4 and 5 of paragraph 1 of the article may be applied without direct calculation of market price values. When using these methods, the federal executive body authorized for control and supervision in the field of taxes and fees compares the financial indicators (results) of the analyzed transaction (group of homogeneous analyzed transactions) with the profitability interval (financial indicators calculated on the basis of the profitability interval) for comparable transactions, on the basis of which it calculates the amount of income (profit, proceeds) that would be received if the parties to this transaction were persons not recognized as related.
11. The court may take into account other circumstances that are important for determining the compliance of the price applied in the transaction with the market price, without the restrictions provided for in Chapter 14.2 of the Code and this Chapter.
12. When concluding transactions, taxpayers are not required to be guided by the methods specified in paragraph 1 of the article to justify their pricing policy for purposes not provided for by the Code.
The list of receipts that are not taken into account for tax purposes is contained in Article 251 of the Tax Code of the Russian Federation. Operations to receive these funds are not considered as income tax benefits, nor are they considered as profit (income), that is, they do not form a tax base for income tax at all.
Clause 1 of Article 251 of the Tax Code of the Russian Federation contains a list of operations to receive certain types of funds that are not subject to taxation.
Clause 2 of Article 250 of the Tax Code of the Russian Federation contains a list of targeted revenues that are not subject to taxation. The list of operations for receiving funds listed in paragraph 1 of the commented article applies to any organizations, while the list of operations for targeted receipt of funds listed in paragraph 2 of this article mainly concerns the activities of non-profit organizations and budget recipients.
When determining the tax base for income tax, the following are not taken into account:
1. Income in the form of property, property rights, works or services received from other persons in the order of advance payment for goods (works, services) by taxpayers who determine income and expenses on an accrual basis.
The provision of this paragraph applies only to those organizations that determine income and expenses for tax purposes on an accrual basis.
This subparagraph states that when determining the tax base, the amounts received in the form of advance payment by taxpayers who determine income and expenses on an accrual basis are not taken into account as income. Thus, property, property rights, works or services received from other persons in advance payment are not taxable income for accrual taxpayers.
Organizations using the cash method of recognition of income and expenses are required to include in the taxable income the amount of the advance payment received and to reflect these funds as income subject to taxation at the time of their receipt. This follows from the provisions of paragraph 2 of Article 273 of the Tax Code of the Russian Federation, which states that the date of receipt of income is the day of receipt of funds to bank accounts and (or) to the cashier, the receipt of other property (works, services) and (or) property rights, that is when determining income, advances received are included in the proceeds from the sale of goods (works, services).
For example, lease payments paid in excess of the amount established by the schedule for paying lease payments are recognized as advances and are not taken into account by the lessor when taxing profits at the time they are received (Letter of the Ministry of Finance of the Russian Federation dated March 16, 2006 No. 03-03-04 / 2/79) .
2. Income in the form of property, property rights received in the form of a pledge or deposit as security for obligations.
According to Article 334 of the Civil Code of the Russian Federation, a pledge is a method of securing an obligation, in accordance with which the debtor (pledger) transfers property (property rights) to the creditor (pledge holder) under the secured obligation. If the debtor fails to fulfill this obligation, the creditor has the right to receive satisfaction from the value of the pledged property.
It should be taken into account that this provision only applies to the case of the transfer of pledged property. In accordance with Article 338 of the Civil Code of the Russian Federation, property remains (is considered remaining) with the pledgor, and therefore cannot be considered as transferred, in the following cases:
the pledged property remains with the pledgor, unless otherwise provided by the pledge agreement;
when pledging property on which a mortgage is established (real estate);
when transferring the subject of pledge for a time to the possession or use of a third party.
According to Article 380 of the Civil Code of the Russian Federation, a deposit is recognized as a sum of money issued by one of the contracting parties on account of payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution. Due to the similarity of the advance payment (advance payment) and the deposit, and also taking into account the fact that organizations using the cash method for taxation take into account the advance payment as part of taxable income, it is necessary to distinguish between these concepts. An agreement on a deposit, regardless of the amount of the deposit, must always be made in writing. At the same time, according to paragraph 3 of Article 380 of the Civil Code of the Russian Federation, in case of doubt as to whether the amount paid on account of payments due from the party under the contract is a deposit, this amount is considered paid as an advance, unless otherwise proven.
ATTENTION! In accordance with paragraph 32 of Article 270 of the NKRF when determining the tax base! costs do not count! in the form of property or property rights transferred as a deposit, pledge.
3. Income! in the form of property, property rights or non-property rights having a monetary value, which are received in the form of contributions (contributions) to the authorized (share) capital (fund) of the organization (including income in the form of an excess of the placement price of shares (stakes) over their nominal value (initial size).
The current civil legislation provides for the formation of an authorized (share) capital (fund) for such types of legal entities as:
business partnerships and companies (general and limited partnerships (limited partnerships);
limited and additional liability companies, joint-stock companies;
production cooperatives (in production cooperatives, a unit fund is formed at the expense of the property of their members);
unitary enterprises.
In accordance with the current legislation, a contribution to the authorized (share) capital (fund) of an organization may be money, securities, other things or property rights or other rights having a monetary value (paragraph 6 of Article 66 of the Civil Code of the Russian Federation).
In accordance with subparagraph 4 of paragraph 3 of Article 39 of the Tax Code of the Russian Federation, the transfer of property is not recognized as the sale of goods (works, services) if such an operation is of an investment nature, in particular, contributions to the authorized (share) capital of business companies and partnerships, contributions under a simple partnership agreement (agreement on joint activities), share contributions to mutual funds of cooperatives.
Income (not taken into account for income tax purposes) in the form of an excess of the placement price of shares over their nominal value may arise as a result of an increase in the authorized capital of the company. According to Article 28 of Law No. 208-FZ, the authorized capital of a joint-stock company may be increased by increasing the par value of shares or placing additional shares.
The decision to increase the authorized capital by increasing the nominal value of shares is taken by the general meeting of shareholders. An increase in the authorized capital by placing additional shares is adopted by a decision of the general meeting of shareholders or the board of directors, if the latter is provided for by the charter. At the same time, an increase in the authorized capital by placing additional shares, by increasing the nominal value of shares can be carried out only at the expense of the company's property. An increase in the authorized capital of a company at the expense of its property by placing additional shares, as a result of which fractional shares are formed, is not allowed.
In addition, the amount by which the authorized capital is increased at the expense of the company's property must not exceed the difference between the value of the company's net assets and the amount of the company's authorized capital and reserve fund.
These shares are distributed among all shareholders. At the same time, each shareholder is allocated shares of the same category as the shares he owns, in proportion to the number of shares he owns.
An increase in the authorized capital of a limited liability company is allowed only after its full payment at the expense of the company's property and (or) at the expense of additional contributions from the company's participants or at the expense of contributions from third parties accepted into the company (Article 17 of Law No. 14-FZ).
In accordance with Article 18 of Law No. 14-FZ, when the authorized capital of a company is increased at the expense of its property, the nominal value of the shares of all participants in the company increases proportionally without changing the size of their shares.
An increase in the authorized capital of a company due to additional contributions from its participants and contributions from third parties is regulated by Article 19 of Law No. 14-FZ. At the same time, the amount by which the authorized capital of the company is increased at the expense of its property should not exceed the difference between the value of the net assets of the company and the amount of the authorized capital and the reserve fund of the company.
Features of determining the tax base for income received from the transfer of property to the authorized (share) capital (fund) of the organization are established by Article 277 of the Tax Code of the Russian Federation.
4. Income! in the form of property, property rights, which are received within the limits of the contribution (contribution) by a participant of a business company or partnership (its legal successor or heir) upon withdrawal (withdrawal) from a business company or partnership or when distributing the property of a liquidated business company or partnership among its participants.
This provision mainly applies to general partnerships and limited partnerships, as well as limited and additional liability companies. With regard to joint-stock companies, the specified norm of the Tax Code of the Russian Federation is applied only in the event of distribution of the company's property among shareholders upon its liquidation.
The current legislation does not provide for the concept of withdrawal of a participant from a joint-stock company (withdrawal from the number of participants in a joint-stock company is possible only upon sale or other alienation of shares owned by a shareholder).
According to Article 26 of Law No. 14-FZ, a participant has the right to withdraw from the company at any time, regardless of the consent of other participants or the company itself. At the same time, the company is obliged to pay the withdrawing participant the actual value of his share (paragraph 2 of Article 14 of Law No. 14-FZ) determined on the basis of the company's financial statements for the year in which the application for withdrawal was submitted, or, with the consent of the participant, give him property in kind same cost. The payment must be made within six months of the end of the financial year in which the application for withdrawal is submitted, unless a shorter period is provided by the articles of association.
The exclusion of a participant from a limited (additional) liability company is allowed only in court at the request of other participants, whose shares in the aggregate amount to at least 10 percent of the authorized capital. At the same time, the condition must be met that the excluded participant grossly violates his obligations as a participant or, by his actions (inaction), makes the activities of the company impossible or significantly complicates it (Article 10 of Law No. 14-FZ).
Based on paragraph 17 of the Decree of the Plenum of the Supreme Court of the Russian Federation No. 90 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 dated December 9, 1999 “On Certain Issues of the Application of the Federal Law “On Limited Liability Companies”, the basis for expelling a participant from a company may be systematic evasion, without good reason, from participation in a general meeting of the company's participants, depriving the society of the opportunity to make decisions on issues requiring the unanimity of all its participants.
Articles 76-78 of the Civil Code of the Russian Federation regulate the procedure for the withdrawal and exclusion of a participant from a general partnership and limited partnership.
According to Article 23 of Law No. 208-FZ, the distribution of property of a liquidated joint-stock company between its shareholders is carried out only after the completion of settlements with the company's creditors, as well as after payment of shares that must be redeemed on the basis of Article 75 of the said law, and payment of accrued but not paid dividends on preferred shares and liquidation value on preferred shares determined by the charter of the company.
The initial contribution is determined in relation to partnerships and limited (additional) liability companies, based on the nominal value of the contributions of the founding members specified in the founding agreement of the partnership (company). At the same time, it should be taken into account that the value of the participant's contribution may increase in connection with the implementation of additional contributions or from other sources, in particular from additional capital. In the latter case, to calculate the income, it is necessary to take into account the cost of the initial contribution without taking into account the increase in the par value of the share.
In relation to joint-stock companies, the initial contribution is determined based on the total nominal value of the shares of the first issue acquired by the shareholder upon founding the company.
ATTENTION! Paragraph 3 of Article 270 of the Tax Code of the Russian Federation establishes that expenses are not recognized! in the form of a contribution to the authorized (share) capital, a contribution to a simple partnership (that is, both initial and subsequent ones).
According to subparagraph 5 of paragraph 3 of Article 39 of the Tax Code of the Russian Federation, the following is not recognized as a sale:
“transfer of property within the limits of the initial contribution to a participant in a business company or partnership (his legal successor or heir) upon exit (withdrawal) from a business company or partnership, as well as in the distribution of property of a liquidated business company or partnership between its participants.”
“In accordance with the norms of the Civil Code of the Russian Federation and Federal Law No. 14-FZ of February 8, 1998 “On Limited Liability Companies”, two different business transactions are clearly distinguished for a company participant: withdrawal from the company (in this case, we are talking about the actual value of the share ) and the sale (realization) of its share to the company or third parties.
In accordance with subparagraph 5 of paragraph 3 of Article 39 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), the transfer of property within the limits of the initial contribution to a participant in a business company or partnership (his successor or heir) upon exit (retirement) from of a business company or partnership, as well as in the distribution of property of a liquidated business company or partnership between its participants.
In the sense of this norm, “initial contribution” means the contribution of a participant to the authorized capital of a company upon its establishment.
In accordance with subparagraph 4 of paragraph 1 of Article 251 of the Code, when determining the tax base, income in the form of property, property rights that are received within the limits of the contribution (contribution) by a participant in a business company or partnership (his legal successor or heir) upon exit (retirement) from a business company or partnership or when distributing the property of a liquidated business company or partnership between its participants.
Accordingly, in accordance with paragraph 3 of Article 270 of the Code, when determining the tax base, expenses in the form of a contribution to the authorized (share) capital, a contribution to a simple partnership are not taken into account.
According to the Department, the contribution (contribution) of a member of a business company received upon its withdrawal from the company or upon liquidation of the company should be understood as contributions to the authorized capital of the company (both during its establishment and when its authorized capital is increased) or in the event of acquiring a share from other participants. Contributions of participants in the property of the company are not included in the category of contributions to the authorized capital under consideration.
The income of a member of the company, received in excess of the amount of the contribution when leaving the company, increases the tax base for income tax. The loss incurred by a participant upon withdrawal from the company (in the event that the value of the contribution to the authorized capital exceeds the actual value of the share) is not recognized as a loss taken into account for tax purposes.
5. Incomes in the form of property, property rights and (or) non-property rights having a monetary value, which are received within the limits of the contribution by a participant in a simple partnership agreement (agreement on joint activity) or his successor in the event of separation of his share from property in common ownership parties to the contract, or the division of such property.
Incomes in the form of property, property rights, which are received within the limits of the contribution by a participant in a simple partnership agreement in the event of the allocation of his share from the property that is in common ownership of the participants in the agreement, or the division of such property, is not taken into account when determining the tax base. Incomes received in excess of the contribution are recognized as non-operating income for the purposes of profit taxation.
The division of property that is in the common shared ownership of the partners, as well as the common rights of claim that have arisen from them, is carried out in the manner established by Article 252 of the Civil Code of the Russian Federation. In accordance with this article, property may be divided between the participants by agreement between them. At the same time, a participant in shared ownership has the right to demand the separation of his share from the common property.
If the participants in shared ownership fail to reach an agreement on the method and conditions for dividing the common property or separating the share of one of them, the participant in shared ownership has the right to demand in court that his share be divided in kind from the common property. If separation in kind is not allowed by law or is impossible without disproportionate damage to property in common ownership, the owner has the right to pay him the value of his share by other participants in shared ownership.
The disproportion of the property allocated in kind to a participant in shared ownership to his share in the ownership right is eliminated by the payment of an appropriate amount of money or other compensation. The payment of compensation to a participant in shared ownership by other owners of compensation instead of the allocation of his share in kind is allowed with his consent.
In cases where the share of the owner is insignificant, cannot be really allocated, and he does not have a significant interest in the use of common property, the court may, even in the absence of the consent of this owner, oblige the other participants in shared ownership to pay compensation to him. With the receipt of compensation, the owner loses the right to a share in the common property of the partnership.
6. Income in the form of funds and other property received in the form of gratuitous assistance (assistance) in the manner established by the Federal Law "On gratuitous assistance (assistance) of the Russian Federation and the introduction of amendments and additions to certain legislative acts of the Russian Federation on taxes and on establishing benefits on payments to state non-budgetary funds in connection with the implementation of gratuitous assistance (assistance) of the Russian Federation.
When determining the tax base, income in the form of funds and other property received in the form of gratuitous assistance (assistance) in the manner established by Federal Law No. 95-FZ of May 4, 1999 "On gratuitous assistance (assistance) of the Russian Federation and amendment and additions to certain legislative acts of the Russian Federation on taxes and on the establishment of benefits for payments to state non-budgetary funds in connection with the implementation of gratuitous assistance (assistance) of the Russian Federation.
According to this law, gratuitous assistance, technical assistance, and humanitarian assistance are not subject to taxation.
The definitions of gratuitous assistance, technical and humanitarian assistance are contained in Article 1 of the Law
Free assistance (assistance) - means, goods that are provided to the Russian Federation, constituent entities of the Russian Federation, state authorities and local governments, legal entities and individuals, as well as work performed for them and services provided to them as humanitarian or technical assistance (assistance ) on a gratuitous basis by foreign states, their federal or municipal formations, international and foreign institutions or non-profit organizations, as well as individuals (except for the cases provided for in part three of this article) for which there are certificates (documents) confirming the ownership of these funds, goods, works and services for humanitarian or technical assistance (assistance).
Technical assistance (assistance) - a type of gratuitous assistance (assistance) provided in order to support the implementation of economic and social reforms and disarmament through the conversion, disposal of weapons and military equipment, carrying out radiation and environmental measures for the management of radioactive waste, spent nuclear fuel and other nuclear materials previously accumulated and (or) formed during the operation and decommissioning of facilities for peaceful and military use of atomic energy, as well as through research, training, exchange of specialists, graduate students and students, transfer of experience and technologies, supply of equipment and other material and technical means for duly registered projects and programs.
Humanitarian assistance (assistance) - a type of gratuitous assistance (assistance) provided for the provision of medical and social assistance to low-income, socially unprotected groups of the population affected by natural disasters and other emergencies, to eliminate the consequences of natural disasters and other emergencies, transportation costs, accompaniment and storage of said assistance.
At the same time, it should be taken into account that the belonging of funds, goods, works and services to humanitarian or technical assistance (assistance) is confirmed by an appropriate certificate. The form and procedure for compiling these certificates were approved by Decree of the Government of the Russian Federation of September 17, 1999 No. 1046 “On approval of the procedure for registering projects and programs of technical assistance (assistance), issuing certificates confirming that funds, goods, works and services belong to technical assistance (assistance ), as well as exercising control over its intended use” and Decree of the Government of the Russian Federation dated December 4, 1999 No. 1335 “On Approval of the Procedure for Providing Humanitarian Aid (Assistance) to the Russian Federation”.
When applying this provision, it must be taken into account that excisable goods (products) cannot be classified as gratuitous humanitarian and (or) technical assistance (assistance).
An analysis of the concepts of gratuitous assistance, technical assistance, humanitarian assistance shows that when receiving funds in the form of technical assistance (assistance), it applies only to direct recipients of technical assistance (assistance) who have a certificate confirming that the funds, goods, works and services belong to technical assistance, from the donor of technical assistance indicated in the certificate.
These funds used for other than their intended purpose are included in non-operating income and are subject to income tax in accordance with the generally established procedure.
Funds received in the form of gratuitous assistance (assistance) are reflected by taxpayers in the tax declaration for corporate income tax “Report on the intended use of property (including cash), works, services received as part of charitable activities, targeted revenues, targeted financing ".
A report on the intended use of property (including funds), works, services received within the framework of targeted revenues, targeted financing should be submitted to the tax authorities as part of the corporate income tax return for the tax period (year).
7. Income in the form of fixed assets and intangible assets received free of charge in accordance with international treaties of the Russian Federation, as well as in accordance with the legislation of the Russian Federation by nuclear power plants to improve their safety, used for production purposes.
This provision affects two categories of taxpayers:
organizations receiving fixed assets and intangible assets in accordance with international treaties;
organizations that operate nuclear power plants and receive fixed assets and intangible assets free of charge to improve their safety and use them for production purposes. In case of misuse of funds received from the budget, such organizations receive non-operating income (Article 250 of the Tax Code of the Russian Federation).
8. Income in the form of property received by budgetary institutions by decision of executive authorities at all levels.
When determining the tax base for income tax, income in the form of property received by budgetary organizations by decision of executive authorities at all levels is not taken into account. At the same time, the executive authority can provide the institution with the necessary property, both in kind and by allocating the amount of budget allocations.
In the event that property purchased at the expense of budgetary funds is used for entrepreneurial activities, this will not be lawful.
A report on property received by budgetary institutions by decision of executive authorities at all levels is submitted by taxpayers in the tax declaration for corporate income tax (“Report on the intended use of property (including funds), works, services received as part of charitable activities, targeted revenues, targeted financing”).
9. Income in the form of property (including cash) received by the commission agent, agent and (or) another attorney in connection with the performance of obligations under a commission agreement, agency agreement or other similar agreement, as well as in compensation for expenses incurred by the commission agent, agent and (or) other attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements. This income does not include commission, agency or other similar remuneration.
Income not taken into account when determining the tax base includes:
property (including cash) in connection with the performance of obligations under a commission agreement, agency agreement or other similar agreement;
the amount of money to reimburse the costs incurred by the commission agent, agent and (or) other attorney for the committent, principal and (or) other principal, if such costs are not subject to inclusion in the costs of the commission agent, agent and (or) other attorney in accordance with the terms of the contracts.
10. Income! in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of borrowing, including securities for debt obligations), as well as funds or other property received to repay such borrowings.
Loan relations, as well as relations related to the provision of credit funds, are regulated, respectively, by paragraphs 1 and 2 of Chapter 42 of the Civil Code of the Russian Federation. The main difference between a loan and a loan is that, firstly, only money can be the subject of a loan agreement, while the subject of a loan agreement is money and other things defined by generic characteristics. Secondly, if only a bank or other credit organization licensed to carry out banking activities can act as a creditor under a loan agreement, then any individual or legal entity can be a lender under a loan agreement. In addition to a loan agreement and a loan agreement, debt securities (bills and bonds), a commodity loan agreement (Article 822 of the Civil Code of the Russian Federation) can be used to formalize debt relations.
According to Article 807 of the Civil Code of the Russian Federation, under an agreement, one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things received by him things of the same kind and quality. This means that if the borrower received 10 tons of wheat under the loan agreement, then he must return exactly 10 tons of wheat, moreover, of the same grade and the same quality as the wheat he received under the loan agreement. If material values of a different kind are returned (for example, grain is received, and lumber is returned), then the contract qualifies as an exchange contract.
A loan agreement between citizens must be concluded in writing if its amount exceeds at least ten times the minimum wage established by law. If the lender is a legal entity, then regardless of the amount, the loan agreement must be concluded in writing.
According to Article 819 of the Civil Code of the Russian Federation, a loan agreement is an agreement under which a bank or other credit organization (creditor) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it. Relations under this agreement are subject to the rules provided for loans, unless otherwise provided by the rules of Articles 819-821 of the Civil Code of the Russian Federation and does not follow from the essence of the loan agreement. The loan agreement must be concluded in writing. Failure to comply with these conditions will result in the invalidity of the loan agreement. According to Article 820 of the Civil Code of the Russian Federation, such an agreement is void.
Thus, for taxpayers of any category, income not taken into account when determining the tax base includes both receipts in the form of borrowings and receipts in the form of refunds under the above agreements. At the same time, income received in the form of interest under such agreements will be treated as income taken into account when determining the tax base.
We offer the point of view of the Ministry of Finance of the Russian Federation on the issue of reflection in the tax base for income tax of organizations receiving an interest-free loan.
“The Department of Tax and Customs Tariff Policy has considered the letter on the issue of accounting for tax purposes the profit of the received interest-free loan and reports the following.
In accordance with subparagraph 10 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), when determining the tax base for corporate income tax, income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of registration of borrowings, including securities on debt obligations), as well as funds or other property received to repay such borrowings.
Thus, the amount of the loan received by the taxpayer is not reflected in its tax base for corporate income tax.
Since Chapter 25 of the Code is not included in the composition of taxable income, such type of income as material benefit received from the use of an interest-free loan, the taxpayer does not increase the tax base for corporate income tax by the amount of such benefit.
When returning an interest-free loan, the taxpayer, on the basis of paragraph 12 of Article 270 of the Code, does not include expenses in the form of funds or other property used to repay such a loan as expenses taken into account for taxation of profits.
11. Income in the form of property received by a Russian organization free of charge:
from the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring organization;
from the organization, if the authorized (reserve) capital (fund) of the transferring party consists of more than 50 percent of the contribution (share) of the receiving organization;
from an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of this individual. At the same time, the received property is not recognized as income for taxation purposes only if, within one year from the date of its receipt, the said property (with the exception of cash) is not transferred to third parties.
The norms of this subparagraph affect only taxpayers - Russian organizations. In this case, you can use this provision if the following conditions are met:
the founder must have a share in the authorized capital of the organization exceeding 50%;
the received property (with the exception of cash) during the year should not be transferred by the organization to third parties.
So in the Decree of the Federal Antimonopoly Service of the Moscow District dated December 30, 2004, December 28, 2004 No. KA-A41 / 12311-04-P, the materials of the case were considered that when determining the tax base for income tax, the organization did not include funds received from the organization to the current account, to the taxable base for income tax. Having considered the materials of the case, the court came to the conclusion that the organization rightfully did not include funds in the tax base for income tax, since these funds were received from an organization that owns more than 50% of the authorized capital of the receiving party.
Property (including cash) that was received by a subsidiary from a parent organization whose share in the charter capital of the subsidiary is more than 50 percent, under a loan agreement, if the obligation under the loan agreement was subsequently terminated by debt forgiveness, is not taken into account for taxation purposes in accordance with subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of the Russian Federation dated April 7, 2006 No. 03-03-02 / 79).
12. Income in the form of interest received in accordance with the requirements of articles 78, 79 of the Tax Code of the Russian Federation 176 and 203 of the Tax Code of the Russian Federation from the budget (off-budget fund).
According to Articles 78-79 of the Tax Code of the Russian Federation, these funds include interest received by taxpayers, tax agents and payers of fees from budgets and extra-budgetary funds in case of untimely return of overpaid (collected) amounts of taxes and fees to them.
The refund of the amounts of overpaid tax is made at the expense of the budget (off-budget fund), to which the overpayment occurred, within one month from the date of filing the application for a refund. In case of violation of the specified period, interest is accrued on the amount of overpaid tax that was not returned on time for each day of violation of the return period based on the refinancing rate of the Central Bank of the Russian Federation.
The refund of the amounts of overcharged tax is made at the expense of general revenues to the budget (off-budget fund), to which the amounts of overcharged tax were credited, within one month from the date of the decision by the tax authority or court. At the same time, interest on the specified amount is accrued from the day following the day of collection until the day of actual return based on the refinancing rate of the Central Bank of the Russian Federation.
In accordance with Article 176 of the Tax Code of the Russian Federation, these funds include interest received by taxpayers for late VAT refunds on ordinary transactions, as well as on transactions taxed at a rate of 0 percent.
In accordance with Article 203 of the Tax Code of the Russian Federation, these funds include interest received by taxpayers for the late return of excises.
Interest accrued by the tax authorities for the untimely refund of an overpaid (collected) amount of a tax or fee, as well as interest accrued for the untimely refund of value added tax amounts and returned to taxpayers (payers of fees) by the federal treasury bodies of the Ministry of Finance of the Russian Federation, are reflected in the accounting at classification code of budget revenues of the Russian Federation and by type of tax (fee) on which interest is accrued for late return (reimbursement) "On the procedure for accounting for interest accrued for the untimely return of the overpaid (collected) amount of tax (fee), as well as interest accrued for the untimely reimbursement of value added tax amounts."
13. Income in the form of guarantee contributions to special funds created in accordance with the legislation of the Russian Federation, intended to reduce the risks of non-fulfillment of obligations under transactions received in the course of clearing activities or activities for organizing trading in the securities market.
Decree of the Federal Commission for the Securities Market of the Russian Federation dated August 14, 2002 No. 32/ps “On Approval of the Regulations on Clearing Activities in the Securities Market of the Russian Federation”. In accordance with clause 6.1 of the Regulations on Clearing Activities, in order to ensure the execution of transactions in securities in respect of which clearing is carried out and to reduce liquidity risks, systemic risks and risks of non-execution of transactions in securities, the clearing organization forms a guarantee fund and develops a system of measures to reduce the risks of clearing activities in in accordance with the requirements of the Federal Financial Market Service of the Russian Federation (FFMS).
The minimum size of the guarantee fund is established by the Federal Financial Markets Service of the Russian Federation in agreement with the Central Bank of the Russian Federation, depending on the procedure for carrying out clearing activities. Sources for the formation of guarantee funds may be cash and securities of the clearing participants held in their bank accounts with the settlement organization and in special sections of depo accounts with the settlement depository, which the clearing organization has the right to dispose of in accordance with the Rules for the implementation of clearing activities.
The use of the funds of the guarantee fund is allowed only to secure the fulfillment of the clearing member's obligations in case of insufficiency of its securities and (or) funds for the execution of the clearing pool trades in the manner specified in clause 6.8.3 of the Regulations on Clearing Activities.
Based on clause 6.7 of the Regulations on Clearing Activities, control over the formation, placement and use of guarantee funds is carried out in accordance with the Rules for the implementation of clearing activities.
14. Income in the form of property received by the taxpayer in the framework of targeted financing.
It should be noted that taxpayers who have received special-purpose financing are required to keep separate records of income (expenses) received (produced) within the framework of special-purpose financing. In the absence of such accounting, these funds are considered as subject to taxation from the date of their receipt. Budget funds of all levels, state off-budget funds allocated to budgetary institutions according to the estimate of income and expenses of a budgetary institution, but not used for their intended purpose during the tax period or used for other than their intended purpose, are subject to the norms of the budgetary legislation of the Russian Federation.
The means of targeted financing include property received by the taxpayer and used by him for the purpose determined by the organization (individual) - the source of targeted financing:
Income in the form of funds from budgets of all levels, state off-budget funds allocated to budgetary institutions according to the estimate of income and expenses of a budgetary institution.
According to Article 161 of the RF BC, a budgetary institution is an organization established by state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation, local governments to carry out managerial, socio-cultural, scientific and technical or other functions of a non-commercial nature, activities that are financed from the corresponding budget or the budget of the state non-budgetary fund on the basis of estimates of income and expenses.
Income in the form of received grants.
Grants are targeted funds provided by foreign charitable organizations to organizations in cash or in kind (including fixed assets, materials, goods, and so on) for the implementation of specific programs in the field of education, art, culture, public health (directions - AIDS, drug addiction, pediatric oncology, including oncohematology, pediatric endocrinology, hepatitis and tuberculosis), environmental protection, protection of human and civil rights and freedoms provided for by the legislation of the Russian Federation, social services for the poor and socially unprotected categories of citizens, as well as for specific scientific research .
The list of international and foreign organizations whose grants are not taken into account for tax purposes in the income of Russian organizations - recipients of grants, approved by the Decree of the Government of the Russian Federation of December 24, 2002 No.
Grants are provided:
on a gratuitous and irrevocable basis by Russian individuals, non-profit organizations, as well as foreign and international organizations and associations according to the list of such organizations approved by the Government of the Russian Federation;
for the implementation of specific programs in the field of education, art, culture, public health (directions - AIDS, drug addiction, pediatric oncology, including oncohematology, pediatric endocrinology, hepatitis and tuberculosis), environmental protection, protection of human and civil rights and freedoms provided for by law Russian Federation, social services for the poor and socially unprotected categories of citizens, as well as for specific scientific research”;
on the terms determined by the grantor, with the obligatory submission of a report on the intended use of the grant.
There are several important points to pay attention to.
First, grants from foreign individuals are now subject to taxation.
Second, there is no need to prove to foreign and international organizations and associations the status of a non-profit organization in accordance with Russian law.
Third - grants are exempt from taxation for the implementation of specific programs in the field of public health (areas - AIDS, drug addiction, pediatric oncology, including oncohematology, pediatric endocrinology, hepatitis and tuberculosis) - no other areas of public health are exempt from taxation.
Fourth - grants are released for the implementation of specific programs in the field of protecting human and civil rights and freedoms, provided for by the legislation of the Russian Federation - the direction of the grant must have a reference to at least a specific article of the Constitution of the Russian Federation.
Fifth - grants are released for the implementation of specific programs in the field of social services for the poor and socially unprotected categories of citizens - a specific program must be available.
In the form of investments received during investment competitions (bidding) in the manner prescribed by the legislation of the Russian Federation.
Privatized organizations that sell blocks of their shares at competitions (auctions) and receive funds for investments from their winners under the terms of such competitions (auctions) spend them in the manner prescribed by the investment program. If these funds are not used for their intended purpose, then in this part they are subject to inclusion in the tax base in the general manner.
In the form of investments received from foreign investors to finance capital investments for industrial purposes, provided that they are used within one calendar year from the date of receipt.
Investment activities carried out in the form of capital investments by foreign investors on the territory of the Russian Federation are regulated by international treaties, the Civil Code of the Russian Federation and Federal Law No. 39-FZ of February 25, 1999 “On investment activities in the Russian Federation carried out in the form of capital investments”.
According to Article 1 of the Federal Law of February 25, 1999 No. 39-FZ “On investment activities in the Russian Federation carried out in the form of capital investments”, investments are cash, securities, other property, including property rights, other rights, having a monetary value, invested in objects of entrepreneurial and other activities.
At the same time, capital investments include investments in fixed capital (fixed assets), including the costs of new construction, expansion, reconstruction and technical re-equipment of existing organizations, the purchase of machinery, equipment, tools, inventory, design and survey work and other costs.
The concepts of "foreign investor" and "foreign investment" are defined in Article 2 of the Federal Law of July 9, 1999 No. 160-FZ "On Foreign Investments in the Russian Federation":
Foreign investor - a foreign legal entity whose civil legal capacity is determined in accordance with the legislation of the state in which it is established and which is entitled, in accordance with the legislation of the said state, to invest in the territory of the Russian Federation.
Foreign investment - an investment of foreign capital in an object of entrepreneurial activity in the territory of the Russian Federation in the form of objects of civil rights owned by a foreign investor, if such objects of civil rights are not withdrawn from circulation or are not limited in circulation in the Russian Federation in accordance with federal laws, including money, securities (in foreign currency and the currency of the Russian Federation), other property, property rights having a monetary value of exclusive rights to the results of intellectual activity (intellectual property), as well as services and information.
Investments received from foreign investors to finance capital investments for industrial purposes are means of targeted financing only if they are used within one calendar year from the date of their receipt.
In the form of funds of equity holders and (or) investors accumulated on the accounts of the developer's organization.
In this case, the funds received by the developer organization from equity holders (legal entities and individuals) in order to finance equity participation in construction, which are purposefully spent on construction, are considered. This subparagraph affects only one category of taxpayers - organizations that are customers-developers. On the basis of the agreement, the customer-developer manages the funds of the investor (investors) transferred to finance the construction of production facilities, social and cultural facilities and public utilities, residential buildings. The customer-developer bears to the investor property and other liability provided for by the current legislation for the rational use of the allocated resources and material assets for construction.
The funds received by the customer in accordance with the concluded agreements from the organizations-shareholders in the order of equity participation in the construction of facilities, including housing, are a source of targeted financing and are not subject to income tax, provided that the amount of funds received from each shareholder for equity participation in construction, at the time of signing the acts of completing the stages of work or putting the object on a turnkey basis (depending on the terms of the contract between the customer and the investors of the construction) does not exceed the actual costs of constructing the transferred part of the object to the shareholder organization.
Incomes in the form of funds from equity holders accumulated on the accounts of the developer organization are subject to inclusion in non-operating income in the event that the recipient did not actually use such funds until the completion of the construction of the facility within the time limits established in the agreement on equity participation in construction.
Customers-developers must keep separate records of income and expenses received (incurred) within the framework of targeted financing. In the absence of such accounting, funds received under targeted financing are subject to taxation from the date of their receipt.
At the same time, it should be borne in mind that the taxpayer's income in the form of property (including funds) not used for its intended purpose, works, services received as part of charitable activities (including in the form of charitable assistance, donations), targeted receipts, targeted financing, with the exception of budgetary funds, are recognized as tax non-operating income (Letter of the Ministry of Finance of the Russian Federation dated February 10, 2006 No. 03-11-04 / 2/33).
According to paragraph 14 of Article 250 of the Tax Code of the Russian Federation, taxpayers who have received property (including cash), works, services as part of charitable activities, targeted revenues or targeted financing, at the end of the tax period, submit to the tax authorities at the place of their registration a report on the intended use of the received funds in the form approved by the Ministry of Finance of the Russian Federation.
In this regard, funds received from investors, including the difference between the amount of funds received from investors and the amount of construction costs, if they are misused, will be treated as tax non-operating income.
In the form of funds received by the mutual insurance society from member organizations of the mutual insurance society.
In accordance with Article 968 of the Civil Code of the Russian Federation, mutual insurance companies are non-profit organizations that insure the property and other property interests of their members.
Citizens and legal entities (members of a mutual insurance society) insure their property and property interests by pooling funds in these societies. Funds received by a mutual insurance company from its members for the purpose mentioned above are not subject to income tax.
In the form of funds received from the Russian Foundation for Basic Research, the Russian Fund for Technological Development, the Russian Humanitarian Scientific Fund, the Fund for Assistance to the Development of Small Forms of Enterprises in the Scientific and Technical Sphere, the Federal Fund for Industrial Innovations.
Income that is not taken into account for taxation includes funds received by taxpayers from the following funds: -
Russian Foundation for Basic Research; -
Russian Fund for Technological Development (Decree of the President of the Russian Federation dated April 27, 1992 No. 426 "On urgent measures to preserve the scientific and technical potential of the Russian Federation"; -
Russian Humanitarian Science Foundation; -
Fund for the Promotion of the Development of Small Forms of Enterprises in the Scientific and Technical Sphere (Decree of the Government of the Russian Federation dated February 3, 1994 No. 65 "On the Fund for the Promotion of the Development of Small Forms of Enterprises in the Scientific and Technical Sphere"; -
Federal Fund for Industrial Innovations.
In the form of funds received for the formation of the Russian Fund for Technological Development, as well as other sectoral and intersectoral funds for financing research and development work, registered in the manner prescribed by the Federal Law "On Science and State Scientific and Technical Policy".
The list of income that is not included in the tax base for income tax includes income in the form of funds received for the formation of the Russian Fund for Technological Development, as well as other sectoral and intersectoral funds for financing research and development work.
In the form of funds received by enterprises and organizations, which include especially radiation-hazardous and nuclear-hazardous industries and facilities, from reserves designed to ensure the safety of these industries and facilities at all stages of the life cycle and their development in accordance with the legislation of the Russian Federation on the use of atomic energy.
These funds are subject to inclusion in non-operating income if the recipient actually used such funds for other than their intended purpose or did not use them for their intended purpose within one year after the end of the tax period in which they were received.
Especially radiation-hazardous and nuclear-hazardous productions and facilities are organizations regardless of their form of ownership, as well as military units involved in the development, production, operation, storage, transportation, disposal of nuclear weapons, nuclear weapons components, radiation-hazardous materials and products.
In the form of funds, fees for air navigation services for aircraft flights in the airspace of the Russian Federation, received by a specially authorized body in the field of civil aviation.
In all the cases listed above, organizations that have received special-purpose financing are required to keep separate records of income and expenses received (incurred) within the framework of special-purpose financing. In the absence of such accounting for an organization that has received special-purpose financing, these funds are considered as subject to taxation from the date of their receipt. Budgetary legislation of the Russian Federation shall apply to the funds of budgets of all levels, state non-budgetary funds allocated to budgetary institutions according to the estimate of income and expenses of a budgetary institution, but not used for their intended purpose during the tax period or used for other than their intended purpose.
The report on the intended use of the funds received is compiled by taxpayers in the form of sheet 07 of the tax return for corporate income tax.
The report shall include the data of the previous tax period on received but unused funds, the period of use of which has not expired.
In the form of bank insurance premiums to the deposit insurance fund in accordance with the federal law on insurance of deposits of individuals in banks of the Russian Federation.
In the form of funds received by medical organizations that carry out medical activities in the system of compulsory health insurance, for the provision of medical services to insured persons from insurance organizations that carry out compulsory medical insurance of these persons.
Funds received by medical organizations from insurance organizations within the framework of compulsory medical insurance, for the provision of medical services to insured persons, are included in tax-free income.
According to the explanations of the Ministry of Finance in the Letter dated September 16, 2005 No. 03-03-04 / 1/203, article 2 of the Law of the Russian Federation dated June 28, 1991 No. 1499-1 "On health insurance of citizens in the Russian Federation" determines that medical institutions in the health insurance system are licensed medical and preventive institutions, research and medical institutes, other institutions providing medical care, as well as persons engaged in medical activities, both individually and collectively.
According to Article 20 of the Law of the Russian Federation of June 28, 1991 No. 1499-1, medical care in the health insurance system is provided by medical institutions with any form of ownership, accredited in the prescribed manner. They are independent economic entities and build their activities on the basis of contracts with insurance medical organizations.
Thus, a medical institution with any form of ownership, which is an independent economic entity, which is accredited in the prescribed manner, has an appropriate license and operates on the basis of an agreement with an insurance medical organization, does not include in the tax base for corporate income tax funds received for the provision of medical services to insured persons from insurance organizations providing compulsory medical insurance for these persons.
15. Income in the form of the value of shares additionally received by the shareholder organization, distributed among shareholders by decision of the general meeting in proportion to the number of shares they own, or the difference between the par value of new shares received in exchange for the original ones and the par value of the shareholder's initial shares in the event of distribution among shareholders of shares when increase in the authorized capital of a joint-stock company (without changing the shareholder's share in this joint-stock company).
Additional shares may be received by a shareholder organization from a joint stock company in the following cases:
when increasing the authorized capital of a joint-stock company by issuing additional shares;
when distributing shares previously redeemed or acquired by a joint-stock company from its shareholders in accordance with Articles 72-77 of Law No. 208-FZ;
when distributing shares acquired by a closed joint stock company as a result of exercising the right of pre-emption for shares alienated by one of the shareholders of the company. It should be noted that a closed joint-stock company enjoys the right of first refusal to purchase shares alienated by a shareholder (shareholders) if this is provided for by the company's charter and other shareholders have refused to purchase shares (Article 7 of Law No. 208-FZ).
At the same time, the necessary conditions for the application of this norm of the Tax Code of the Russian Federation are:
distribution of shares among shareholders by decision of the general meeting of the joint-stock company;
compliance with the principle of proportional distribution of shares (additional shares are distributed among shareholders in proportion to the number of shares they own).
ATTENTION! According to paragraph 31 of Article 270 of the NCRF, the issuer does not take into account as an expense the cost of shares transferred by the taxpayer-issuer, distributed among shareholders by decision of the general meeting of shareholders in proportion to the number of shares owned
shares, or the difference between the par value of new shares transferred to replace the original ones, and the par value of the initial shares of the shareholder in the distribution of shares among shareholders when increasing the authorized capital.
16. Income in the form of a positive difference resulting from the revaluation of precious stones in the event of a change in the established order of price lists of settlement prices for precious stones.
According to the Federal Law of March 26, 1998 No. 41-FZ "On Precious Metals and Precious Stones", state regulation in the field of relations related to precious stones is also carried out through the organization of state control over prices by approving mandatory classifiers and price lists.
17. Income in the form of amounts by which the authorized (share) capital of the organization decreased in the reporting (tax) period in accordance with the requirements of the legislation of the Russian Federation.
The procedure for reducing the authorized (share) capital of an organization is regulated, in particular, by Article 20 of Law No. 14-FZ, Articles 29, 30 of Law No. 208-FZ, Article 114 of the Civil Code of the Russian Federation.
Here are the cases when an organization is obliged to reduce its authorized capital:
in accordance with paragraph 4 of Article 35 of Law No. 208-FZ, if at the end of the second and each subsequent financial year in accordance with the annual balance sheet proposed for approval by the shareholders of the company, or the results of an audit, the value of the net assets of the company turns out to be less than its authorized capital, the company is obliged to declare on reducing the authorized capital to an amount not exceeding the value of its net assets.
according to paragraph 3 of Article 26 of Law No. 14-FZ, the actual value of the share of a participant withdrawing from the company is paid out of the difference between the value of the company's net assets and the size of its authorized capital. If such a difference is not enough to pay the actual value of the share of the withdrawing participant, the company is obliged to reduce its authorized capital by the missing amount.
18. Income in the form of the cost of materials and other property received from the dismantling, dismantling during the liquidation of facilities being decommissioned and destroyed in accordance with Article 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and Part 5 of the Verification Annex to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.
This provision only affects organizations decommissioning chemical weapons production facilities. For this category of taxpayers, the cost of materials and other property obtained during the dismantling, dismantling, liquidation of decommissioned facilities destroyed in accordance with Article 5 of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and Their Destruction, which is concluded in the city Paris on January 13, 1993, refers to income not taken into account in determining the tax base.
19. Income in the form of the cost of reclamation and other agricultural facilities (including on-farm water pipelines, gas and electric networks) received by agricultural producers, built at the expense of budgets of all levels.
Incomes of taxpayers - agricultural producers in the form of the cost of reclamation and other agricultural facilities (including on-farm water supply, gas and electric networks) built at the expense of budgets of all levels (federal, regional, local) are classified as income not taken into account when determining the tax bases.
In accordance with Chapter 26.1 of the Tax Code of the Russian Federation, for the purpose of taxing profits, agricultural producers are recognized as organizations, individual entrepreneurs, peasant (farm) enterprises that produce agricultural products on agricultural land and sell these products, including products of its processing, provided that in total revenue from the sale of goods (works, services) of these organizations, individual entrepreneurs, peasant (farmer) households, the share of proceeds from the sale of these products is less than 70%.
Agricultural organizations of the industrial type (fur farms, livestock breeding complexes, poultry farms, greenhouse complexes and others) are not recognized as agricultural producers, determined by the list approved by the legislative (representative) bodies of the constituent entities of the Russian Federation.
20. Incomes in the form of property and (or) property rights that are received by organizations of the state stock of special (radioactive) raw materials and fissile materials of the Russian Federation from operations with material assets of state stocks of special (radioactive) raw materials and fissile materials and directed to recovery and maintenance of these reserves.
For organizations of the state stock of special (radioactive) raw materials and fissile materials of the Russian Federation, which have the right, in accordance with the established procedure, to carry out operations with the material assets of these state stocks, receipts in the form of property and (or) property rights from these operations are recognized as income not taken into account when determining tax base, provided that these revenues are used to restore and maintain the state stock of special (radioactive) raw materials and fissile materials of the Russian Federation.
21. Income in the form of amounts of accounts payable of a taxpayer for the payment of taxes and fees to budgets of different levels, written off and (or) otherwise reduced in accordance with the legislation of the Russian Federation or by decision of the Government of the Russian Federation.
The taxpayer's debt on penalties and fines is not equated by the Code with debt on payment of taxes and fees. Consequently, the provisions of subparagraph 21 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of the Russian Federation dated January 13, 2006 No. 03-03-02 / 5 “On accounting for the amounts of penalties and penalties for debts to the budget when taxing profits.
22. Income in the form of property received free of charge by state and municipal educational institutions, as well as non-state educational institutions that have licenses for the right to conduct educational activities, to conduct statutory activities.
According to the Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education", an educational institution is a legal entity that carries out the educational process, that is, implements one or more educational programs and (or) provides maintenance and education of students, pupils. A non-state educational institution may be created in the organizational and legal forms provided for by the civil legislation of the Russian Federation for non-profit organizations.
A report on the intended use of the received property is submitted by taxpayers in the tax return for corporate income tax.
23. Income in the form of fixed assets received by organizations that are part of the structure of the Russian Defense Sports and Technical Organization (ROSTO) (when they are transferred between two or more organizations that are part of the structure of ROSTO), used to train citizens in military registration specialties, military-patriotic education of youth, development of aviation, technical and military-applied sports in accordance with the legislation of the Russian Federation.
This provision affects only those organizations that are part of the structure of the Russian Defense Sports and Technical Organization (ROSTO). Income received in the form of fixed assets from organizations included in the same structure is not taken into account when determining the tax base. In this case, the fixed assets must be used for the specified purposes.
24. Income in the form of a positive difference received from the revaluation of securities at market value. Income in the form of a positive difference received from the revaluation of securities at market value,
relate to income not taken into account when determining the tax base for income tax.
Please note that paragraph 22 of PBU 19/02 provides for the revaluation of debt securities for which the current market value is not determined for accounting purposes. The difference between the initial cost and the nominal value during the period of their circulation is allowed to be attributed evenly, in proportion to the income due on them in accordance with the terms of issue, to the financial results of a commercial organization (as part of other income or expenses) or a decrease or increase in the expenses of a non-profit organization.
Income (expenses) determined as a result of revaluation of debt securities for income tax purposes are not taken into account (Letter of the Ministry of Finance of the Russian Federation dated April 8, 2005 No. 03-03-01-04/1/175).
25. Income in the form of amounts of restored reserves for depreciation of securities (except for reserves, expenses for the creation of which, in accordance with Article 300 of the Tax Code of the Russian Federation, previously reduced the tax base).
For organizations, income in the form of amounts of restored reserves for depreciation of securities is classified as income that is not taken into account when determining the tax base for income tax. The exception is reserves, expenses for the creation of which, in accordance with Article 300 of the Tax Code of the Russian Federation, previously reduced the tax base. Article 300 of the Tax Code of the Russian Federation provides for the procedure for recognizing expenses for the formation of reserves for the depreciation of securities from professional participants in the securities market engaged in dealer activities.
26. Income in the form of funds and other property received by unitary enterprises from the owner of the property of this enterprise or a body authorized by him.
For unitary organizations, income in the form of property and other property received from the owner of the property of this organization or its authorized body shall be classified as income not taken into account when determining the tax base.
In the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98 “Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter 25 of the Tax Code of the Russian Federation”, an example of a case is given in which, when interpreting the provision of subparagraph 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation the court pointed out that the release of the municipal unitary enterprise by the owner of its property from the payment for the use of the premises entails the saving of funds by the enterprise. In the case under consideration, this can be equated to their receipt and is not subject to accounting when determining the tax base for income tax.
27. Income in the form of property (including cash) and (or) property rights received by a religious organization in connection with the performance of religious rites and ceremonies and from the sale of religious literature and religious items.
Subparagraph 27 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation affects the category of taxpayers - religious organizations.
In accordance with Article 117 of the Civil Code of the Russian Federation, religious organizations are recognized as a voluntary association of citizens who, in the manner prescribed by law, have united on the basis of their common interests to satisfy spiritual or other non-material needs. These organizations are non-profit organizations. But at the same time, they have the right to carry out entrepreneurial activities if this activity is aimed at achieving the goals for which they were created, and corresponding to these goals. Participants (members) of religious organizations do not retain the rights to the property transferred by them to these organizations, including membership fees. They are not liable for the obligations of the religious organizations in which they participate as their members, and these organizations are not liable for the obligations of their members. Features of the legal status of religious organizations as participants in relations regulated by the Civil Code are determined by law.
Thus, the income received from the conduct of religious activities and the sale of religious objects and literature, as well as the funds received, property, regardless of the source of such income to religious organizations for the implementation of statutory activities, are not taken into account when determining the tax base.
28. Income in the form of amounts received by universal service operators from the universal service reserve in accordance with the legislation of the Russian Federation in the field of communications.
In accordance with Article 57 of the Federal Law of July 7, 2003 No. 126-FZ “On Communications”, universal services include:
telephone communication services using payphones;
services for data transmission and provision of access to the Internet using public access points.
The provision of universal services is carried out by universal service operators, the selection of which is carried out based on the results of a competition or in the order of appointment in each subject of the Russian Federation.
The universal service reserve is formed in order to ensure compensation to universal service operators for losses caused by the provision of universal communication services, a universal service reserve is formed (Article 59 of Law No. 126-FZ).
The rules establish the procedure for the formation and spending of the funds of the universal service reserve are determined in accordance with Decree of the Government of the Russian Federation of April 21, 2005 No. 243 "On approval of the rules for the formation and expenditure of the funds of the universal service reserve".
29. Income! in the form of property, including cash, and (or) property rights received! mortgage agent in connection with its statutory activities.
This subparagraph provides that income in the form of property, cash, and (or) property rights received by a mortgage agent in connection with its statutory activities are not included in the list of income taken into account when determining the tax base for income tax.
In accordance with Article 2 of Federal Law No. 152-FZ of November 11, 2003 “On Mortgage Securities”, a mortgage agent is a specialized commercial organization whose exclusive activity is the acquisition of rights of claim on credits (loans) secured by mortgages and mortgages and which has been granted the right to issue mortgage-backed bonds.
At the same time, property acquired (created) at the expense of these incomes is not subject to depreciation (subparagraph 7
paragraph 2 of Article 256 of the Tax Code of the Russian Federation).
30. Income in the form of property (works, services) received by medical organizations engaged in medical activities in the system of compulsory medical insurance from insurance organizations providing compulsory medical insurance, at the expense of the reserve for financing preventive measures used in the prescribed manner.
The list of income not taken into account when determining the tax base for income tax includes property (works, services) received by medical organizations engaged in medical activities, activities in the health insurance system, from insurance organizations engaged in compulsory medical insurance, at the expense of the funding reserve preventive measures.
31. Income in the form of amounts of income from investing pension savings intended to finance the funded part of labor pension received by organizations acting as insurers for compulsory pension insurance.
In accordance with subparagraph 31 of Article 251 of the Tax Code of the Russian Federation, the list of income not taken into account when determining the tax base for income tax includes income from investing pension savings funds intended to finance the funded part of labor pensions received by organizations acting as insurers under compulsory pension insurance.
It is also established that the following expenses are not taken into account when determining the tax base: -
expenses, including the remuneration of the management company and the specialized depository, incurred at the expense of the funds of organizations acting as insurers for compulsory pension insurance, when investing pension savings funds intended to finance the funded part of the labor pension (clause 48.2 of Article 270 of the Tax Code of the Russian Federation); -
amounts directed by organizations acting as insurers for compulsory pension insurance to replenish pension savings funds intended to finance the funded part of labor pension, and which are reflected in pension accounts of the funded part of labor pension (clause 48.3 of Article 270 of the Tax Code of the Russian Federation); -
in the form of pension savings to finance the funded part of the labor pension, transferred in accordance with the legislation of the Russian Federation by non-state pension funds to the Pension Fund of the Russian Federation and (or) another non-state pension fund that act as an insurer for compulsory pension insurance (clause 48.4 of Article 270 of the Tax Code) .
Non-state pension funds are not entitled to recognize as expenses those expenses that are associated with the receipt of income from investing pension savings funds intended to finance the funded part of labor pensions, as provided for in paragraph 4 of Article 296 of the Tax Code of the Russian Federation.
32. Income in the form of capital investments in the form of inseparable improvements to the leased property made by the tenant.
After the end of the lease agreement, inseparable improvements are transferred to the landlord and become his property. For tax purposes, the cost of such inseparable improvements is not included in the income of the lessor.
Note that such improvements are now recognized as depreciable property and included in expenses through depreciation charges.
Depreciation is charged in the following order (paragraph 1 of Article 258 of the Tax Code of the Russian Federation):
capital investments, the cost of which is reimbursed to the lessee by the lessor, are depreciated by the lessor in the general manner;
Capital investments that are not recoverable by the lessor are depreciated by the lessee over the lease term based on depreciation amounts calculated over the useful life.
33. Income of ship owners received from the operation of ships registered in the Russian International Register of Ships. For the purposes of this chapter, the operation of ships registered in the Russian International Register of Ships means the use of such ships for the carriage of goods, passengers and their baggage and the provision of other services related to the implementation of these transportations, provided that the point of departure and (or) destination are located beyond outside the territory of the Russian Federation, as well as the lease of such vessels for the provision of such services.
In accordance with Article 33 of the Merchant Shipping Code of the Russian Federation dated April 30, 1999 No. 81-FZ, the vessel is subject to registration in one of the listed registers of ships of the Russian Federation.
S.V. Razgulin, Acting State Councilor of the Russian Federation, 3rd class
Chapter 25 of the Tax Code of the Russian Federation does not contain a closed list of costs that can be taken into account when calculating the tax base. The taxpayer independently decides on the attribution to expenses of certain costs that are not directly named in the Tax Code. An interview with an expert is devoted to the criteria for recognition of expenses.
- What is required for payments to be included in expenses?
There is an important circumstance, which is often forgotten in practice. The taxpayer's expenses must not be made in violation of the law. I will give a few examples.
Article 131 of the Labor Code of the Russian Federation establishes that the share of wages paid in non-monetary form cannot exceed 20% of the accrued monthly salary. Expenses in the form of payment of wages in kind in excess of the 20% limit established by the Labor Code are contrary to the law (letter of the Ministry of Finance of Russia dated 05.11.2009 No. 03-03-05 / 200).
Compensations paid to employees instead of actually providing them with an annual paid leave of 28 calendar days are not provided for by labor legislation. Therefore, these payments cannot be attributed to expenses that reduce the tax base for income tax (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 23, 2010 No. 10411/10).
Obtaining a favorable court decision cannot be considered as the subject of a contract for the provision of services for compensation. The condition of the agreement on the payment of remuneration, depending on the very fact of the adoption in favor of the customer of a positive court decision for him, violates the foundations of the constitutional system and public order, the principles of independence and independence of the judiciary, which cannot be the subject of private law regulation (Decree of the Constitutional Court of the Russian Federation of 01/23/2007 No. 1-P). The tax authority may charge additional income tax in relation to the “success fee” paid under the contract for the provision of legal services (Resolution of the Volga District Arbitration Court dated January 23, 2015 No. F06-19062 / 2013).
The total amount of remuneration to the seller for the purchase of a certain amount of food products, as well as payment for their promotion, provision of logistics and other services should not exceed 5% of the price of purchased food products (Article 9 of the Federal Law of December 28, 2009 No. state regulation of trading activities in the Russian Federation”).
The payment of other types of remuneration by suppliers of food products in favor of the trading network is not allowed. Payment of remuneration in a larger amount, payment for other actions under the supply agreement in the supplier's expenses for tax purposes are not taken into account (letter of the Ministry of Finance of Russia dated February 19, 2010 No. 03-03-06 / 1/85).
In accordance with subparagraph 1 of paragraph 1 of Article 16 of the Federal Law of February 23, 2013 No. 15-FZ “On protecting the health of citizens from the effects of second hand tobacco smoke and the consequences of tobacco consumption”, it is prohibited to use discounts on the price of tobacco products by any means, including through the issuance of coupons and coupons. Premiums (discounts), the provision of which is contrary to the law, are not taken into account in expenses (letter of the Ministry of Finance of Russia dated January 15, 2016 No. 03-03-06/1/831).
- But there is judicial practice, according to which non-compliance with the requirements of other branches of legislation does not affect the procedure for accounting for expenses ...
Indeed, paragraph 11 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 states that the taxpayer’s failure to comply with certain requirements established by both public law and civil law norms when carrying out business activities entails unfavorable tax consequences for him only in that if it is expressly provided for by the provisions of part two of the Tax Code of the Russian Federation.
But practice is not uniform in all cases. Some of the above examples are just reflected in court decisions.
- On the basis of what norms of the Tax Code of the Russian Federation can a tax authority refuse to recognize expenses in case of non-compliance with the requirements stipulated by industry legislation?
The prohibitions established by law are mandatory for tax purposes and do not require duplication by the norms of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated 03.24.2010 No. 03-03-05 / 59).
We agree that it is at least strange to recognize for tax purposes the costs of activities that are an offense and entail liability.
The tax authority may substantiate the position on the illegality of cost accounting by the fact that they are confirmed by documents drawn up not in accordance with the law.
It is possible that failure to obtain, in necessary cases, a license, other permits or approvals; failure to register a contract, etc., should not always entail consequences in the form of a ban on reducing the tax base.
- What are the conditions for attributing costs to expenses, provided for by the Tax Code of the Russian Federation?
Validity and documentary evidence (paragraph 1 of Article 252 of the Tax Code of the Russian Federation).
The main criterion of validity is the implementation of expenses in activities aimed at generating income by the person who bears these expenses.
The reasonableness of expenses cannot be assessed from the point of view of their expediency, rationality, efficiency, the result obtained (Determination of the Constitutional Court of the Russian Federation dated 04.06.2007 No. 320-O-P). Based on these statements, the Constitutional Court, as well as the Supreme Arbitration Court, came to the conclusion that any expense is supposed to be economically justified. The burden of proving the unreasonableness of the taxpayer's expenses rests with the tax authorities.
The tax authority or the court, when analyzing the payment, will establish a connection between the payment and the activity aimed at generating income.
- What expenses can be taken into account for taxation?
The tax code explicitly classifies some costs as expenses. In relation to such costs, the tax authority during inspections seeks to use the concept of violation by the taxpayer of the rights to calculate the tax base.
The grounds for refusing to reduce the tax base may be the provisions of Article 54.1 of the Tax Code of the Russian Federation (the main goal of the operation is tax savings).
The taxpayer may be required to prove the reasonableness of expenses if they are clearly incomparable with the amount of similar expenses under normal conditions (Determination of the Supreme Court of the Russian Federation of February 20, 2018 No. 305-KG17-15790). In many ways, the adoption of the final decision in these cases is made dependent on the court's subjective assessment of the evidence presented.
- What expenses are not recognized by Chapter 25 of the Tax Code of the Russian Federation?
We are talking about the costs listed in Article 270 of the Tax Code of the Russian Federation. These include payments of a gratuitous nature: financial assistance, lump sum benefits for retiring labor veterans. It can be recommended to the taxpayer, when formulating the terms of payment, to avoid using phrases that are found in Article 270 of the Tax Code of the Russian Federation.
Some payments will allow additional conditions to be recognized as an expense. For example, fixing in labor or collective agreements costs in the form of free or preferential meals for employees, payment for travel of employees to and from the place of work make such expenses justified.
- Could there be a situation when expenses are allowed by sectoral legislation, but they are not taken into account for tax purposes?
There are such examples. Subparagraph 7 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation refers to other expenses associated with production and sales as expenses for ensuring normal working conditions provided for by law.
Approved on the basis of the Labor Code of the Russian Federation by Order of the Ministry of Health and Social Development of Russia dated 01.03.2012 No. 181n “Typical list of measures annually implemented by the employer to improve working conditions and labor protection and reduce levels of occupational risks”, provides for measures aimed at developing physical culture and sports in labor collectives.
Despite this, the expenses of organizations to pay for the employment of employees in sports sections, circles or clubs cannot be taken into account when determining the tax base, since clause 29 of Article 270 of the Tax Code of the Russian Federation establishes a direct ban (letter of the Ministry of Finance of Russia of October 17, 2014 No. 03-03-06 /1/52376).
For tax purposes, the amount of expenses can be normalized. Compensation for the use of personal cars and motorcycles on business trips in excess of the norms established by Decree of the Government of the Russian Federation of February 8, 2002 No. 92 will not reduce income.
Another situation with the cost of fuel and lubricants. These expenses are recorded either as material expenses (subparagraph 5 of paragraph 1 of Article 254 of the Tax Code of the Russian Federation), or as other expenses related to production and sale (subparagraph 11 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation - expenses for the maintenance of official vehicles). The norms for the consumption of fuels and lubricants in road transport, put into effect by the Decree of the Ministry of Transport of Russia dated March 14, 2008 No. AM-23-r, are not mandatory for taxation. In other words, the cost of fuel and lubricants is taken into account in the actual amount (letter of the Ministry of Finance of Russia dated June 22, 2010 No. 03-03-06 / 4/61).
- What does documented evidence of expenses mean?
This means the presence of documents drawn up in accordance with the law. Moreover, the documents that are provided for the registration of the corresponding expense. The use of other documents can only indirectly confirm the expense incurred. So, in relation to the costs of paying for travel tickets purchased in a non-documentary form (electronic ticket), the supporting documents are:
- for a railway ticket - the control coupon of an electronic travel document (ticket) (an extract from the automated system for managing passenger transportation in railway transport), received in electronic form via an information and telecommunication network;
- for an air ticket - a route / receipt of an electronic document (air ticket) on paper, generated by an automated information system for issuing air transportation, which indicates the cost of the flight, a boarding pass confirming the flight of the accountable person along the route specified in the electronic ticket. In the absence of a boarding pass, the consumption of the service can be confirmed by a certificate from the air carrier (letter of the Ministry of Finance of Russia dated December 18, 2017 No. 03-03-РЗ/84409).
- Are transaction costs taken into account if the contract between the parties is not concluded? Payment is made according to the invoice.
Yes, there is a practice of entering into contractual relations without drawing up a contract as a separate document. The contract is not a primary document.
But one should take into account the provisions of the Civil Code of the Russian Federation, which require the mandatory conclusion of an agreement. Such obligations are established for the sale of real estate, rent, loan, insurance and a number of other transactions. Failure to comply with the written form of the contract may result in the recognition of the transaction as invalid.
Accounting for expenses is not prevented by the signing of the contract after the completion of work, if the contract contains provisions on the application of the contract to the relations of the parties that arose before its conclusion. Of course, provided that the primary documents are properly executed (letter of the Federal Tax Service of Russia dated October 6, 2016 No. SD-4-3 / 18888).
Please note that sometimes the Tax Code of the Russian Federation directly prescribes the presence of a certain document as a confirmation of the expense. For example, an agreement with educational institutions - in relation to the costs of training employees (letter of the Ministry of Finance of Russia dated November 9, 2012 No. 03-03-06 / 2/121).
When purchasing services (training, advertising), property rights via the Internet, a written agreement may not be concluded, but drawn up in electronic form by accepting the standard conditions set out on the contractor's website. Expenses will be confirmed by payment documents, a printed and certified page of electronic correspondence, indicating the order and receipt of the service, screenshots (as an indirect confirmation of expenses).
- How to confirm the provision of services if there is no act?
For tax purposes, the preparation of a bilateral act confirming the fact of the provision of services is not mandatory, unless otherwise expressly provided by law. The procedure for recognizing income and expenses under the accrual method established by Chapter 25 of the Tax Code of the Russian Federation provides for determining the date of receipt of income (expenses) in situations where there are no acts.
If the legislation does not require the drawing up of acts and the condition for the drawing up of acts of services rendered is not in the contract, then the remuneration under the contract will be taken into account in income and expenses in accordance with Articles 271, 272 of the Tax Code of the Russian Federation and the accounting policy for tax purposes. Payment documents can confirm expenses.
- Can a document drawn up in electronic form confirm expenses?
Certainly. The primary accounting document can be drawn up in the form of an electronic document signed with an electronic signature.
An electronic document signed by any type of electronic signature confirms the expenses, if the legislation does not provide for the preparation of a document on paper (letter of the Ministry of Finance of Russia dated 05.05.2015 No. 07-01-06 / 25701). In order to confirm expenses, the authenticity of an electronic primary document signed with a simple and (or) enhanced unqualified electronic signature must be ensured by the presence in the relevant agreement between counterparties of the procedure for verifying electronic signatures (letter of the Federal Tax Service of Russia dated May 19, 2016 No. SD-4-3/8904) .
For the recognition of expenses confirmed by an electronic document, the general procedure is applied: the date of recognition will be the date the document was generated (letter of the Ministry of Finance of Russia dated February 13, 2017 No. 03-03-06/1/7663).
Upon request from the taxpayer of documents drawn up in electronic form according to the formats established by the Federal Tax Service, they are sent to the tax authority under the TCS.
If the documents are not drawn up in electronic form according to the established formats, then at the request of the tax authority they are submitted on paper in the form of a certified copy with a mark on signing the document with a qualified electronic signature (letter of the Ministry of Finance of Russia dated 11.01.2012 No. 03-02-07 / 1- one).
The practice of using electronic formats will expand. The Federal Tax Service is vested with the authority to approve the formats of documents requested from taxpayers submitted to the tax authority in electronic form via the TCS.
What information should the primary document contain?
Each fact of the economic life of the organization is documented as a primary document. Based on the grouped primary accounting documents, tax accounting data is generated.
With some exceptions, the forms of primary accounting documents are determined by the taxpayer independently. Paragraph 2 of Article 9 of Federal Law No. 402-FZ of December 6, 2011 “On Accounting” specifies as mandatory details of the primary accounting document:
- Title of the document;
- date of preparation of the document;
- the name of the economic entity that compiled the document;
- the content of the fact of economic life;
- the value of the natural and (or) monetary measurement of the fact of economic life, indicating the units of measurement;
- the title of the position of the person (persons) who made (completed) the transaction, operation and responsible (responsible) for the correctness of its execution, or the title of the position of the person (persons) responsible (responsible) for the correctness of registration of the event;
- signatures of the named persons indicating their surnames and initials or other details necessary to identify these persons.
If all the required details are properly filled in the primary accounting document, the absence of an imprint of the seal (seals) of the organization (organizations) is not a reason for refusing to recognize the corresponding costs as income tax expenses (letter of the Federal Tax Service of Russia dated 13.01.2016 No. SD-4- 3/ [email protected]).
- What if there are mistakes in the preparation of documents?
Corrections are allowed in the primary accounting document, unless otherwise established by federal laws or regulatory legal acts of state accounting regulatory bodies.
If the errors made in the primary documents are insignificant, then the costs can be taken into account without making corrections. Non-essential errors include errors that do not prevent identification:
- parties to the transaction, the subject of the transaction (name of goods, works, services, property rights), the price of the transaction. This is stated in the letters of the Ministry of Finance of Russia dated August 28, 2014 No. 03-03-10 / 43034, dated February 4, 2015 No. 03-03-10 / 4547;
- persons who signed sales receipts (Determination of the Supreme Court of the Russian Federation of March 9, 2016 No. 302-KG16-450).
The Federal Law “On Accounting” does not provide for the replacement of a primary accounting document previously accepted for accounting with a new document.
To correct errors, the Federal Tax Service considers it possible to draw up a new copy of the document, which indicates the number and date of the document before making corrections to it, as well as the number and date of correction (letter dated 05.03.2018 No. SD-4-3 / [email protected]). That is, the original document and the document with corrections (the correct text of the document) will be available.
- If the original documents are submitted by the taxpayer, for example, to the court, then how to confirm the expenses?
copy of these documents. The taxpayer himself can certify the copy (letter of the Ministry of Finance of Russia dated January 20, 2011 No. 03-03-06 / 1/15). On the copy kept by the taxpayer, it is possible to indicate the location of the original document during certification.
By the way, a similar method - making a certified copy - can be recommended when there is a possibility that over time the indicators reflected on the original document, say, on a cash receipt, will become unreadable. In this case, the original and a copy of such document are kept together.
- What to do if a product or service is purchased from a foreign counterparty and the documents are drawn up in a foreign language?
Since records are kept in Russian in Russian, primary accounting documents drawn up in a foreign language must be translated into Russian.
Thus, primary documents drawn up in a foreign language and received from a foreign counterparty, or documents confirming, in particular, being on a business trip abroad, drawn up in a foreign language, must be translated into Russian. The translation can be done by the taxpayer's employees or by a professional translator. It is enough to translate only those indicators that affect taxation (letter of the Ministry of Finance of Russia dated September 14, 2009 No. 03-03-05 / 170). If we are talking about a standard form, then the translation can be performed once, and subsequently only changing indicators are translated (letter of the Ministry of Finance of Russia dated 03.11.2009 No. 03-03-06 / 1/725).
- What features are associated with the period of storage of documents confirming the accounting of expenses?
The total period of storage of documents, including electronic documents, is 4 years (subparagraph 8 of paragraph 1 of Article 23 of the Tax Code of the Russian Federation). This period should be calculated from the end of the tax period in which the accounting of expenses is completed. For example, for depreciation expenses, the period of storage of primary documents reflecting the formation of the initial cost of depreciable property is calculated from the moment the depreciation is calculated in tax accounting.
There are special retention periods in the Tax Code of the Russian Federation. According to paragraph 4 of Article 283 of the Tax Code of the Russian Federation, when carrying forward losses, the taxpayer is obliged to keep documents confirming the amount of the loss incurred for the entire period when he reduces the tax base of the current tax period (letter of the Ministry of Finance of Russia dated January 19, 2018 No. 03-03-06 / 1/2598).
At the same time, Article 29 of the Federal Law “On Accounting” prescribes accounting policy documents, standards of an economic entity, other documents related to the organization and maintenance of accounting, including tools that ensure the reproduction of electronic documents, as well as verification of the authenticity of an electronic signature, should not be stored less than 5 years after the year in which they were used for the preparation of accounting (financial) statements for the last time.
In accordance with the legislation on archiving, there are their own terms for storing documents. By order of the Ministry of Culture of Russia dated August 25, 2010 No. 558 “On approval of the “List of standard administrative archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating the periods of storage” ”, it was established that, for example, documents on depreciation of fixed assets are stored constantly.
1. When conducting tax control in connection with transactions between related parties (including when comparing the commercial and (or) financial terms of the transaction being analyzed and its results with the commercial and (or) financial terms of comparable transactions and their results), the federal executive body , authorized for control and supervision in the field of taxes and fees, uses the following methods in the manner prescribed by this chapter:
1) method of comparable market prices;
2) method of price of subsequent sale;
3) costly method;
4) method of comparable profitability;
5) profit distribution method.
2. It is allowed to use a combination of two or more methods provided for in paragraph 1 of this article.
3. The method of comparable market prices is a priority for determining, for the purposes of taxation, the conformity of prices used in transactions with market prices, unless otherwise provided by paragraph 2 of Article 105.10 of this Code. The use of other methods specified in subparagraphs 2-5 of paragraph 1 of this article is allowed if the application of the method of comparable market prices is impossible or if its application does not allow one to reasonably conclude that the prices used in transactions correspond or do not correspond to market prices for tax purposes. .
The method of comparable market prices is used to determine the compliance of the price applied in a controlled transaction with the market price in the manner prescribed by Article 105.9 of this Code, if there is at least one comparable transaction on the relevant market of goods (works, services), the subject of which are identical (if they are absence - homogeneous) goods (works, services), as well as in the presence of sufficient information about such a transaction.
At the same time, in order to apply the method of comparable market prices in order to determine the compliance of the price applied by the taxpayer in a controlled transaction, as a comparable transaction, it is possible to use a transaction made by the specified taxpayer with persons who are not related to the specified taxpayer, provided that such a transaction is comparable with analyzed transaction.
4. In the absence of publicly available information on prices in comparable transactions with identical (homogeneous) goods (works, services), for the purposes of determining the completeness of the calculation and payment of taxes in connection with transactions between related parties, one of the methods specified in subparagraphs 2-5 of paragraph 1 of this article.
Unless otherwise provided by this chapter, the method shall be used which, taking into account the actual circumstances and conditions of the controlled transaction, allows the most reasonable conclusion to be drawn about the conformity or non-compliance of the price applied in the transaction with market prices.
5. The methods specified in subparagraphs 2-5 of paragraph 1 of this article may also be used in determining for taxation purposes income (profit, proceeds) from a group of homogeneous transactions, the parties to which are interdependent persons.
Homogeneous transactions for the purposes of Chapter 14.2 of this Code, this Chapter and Chapters 14.4 - 14.6 of this Code are recognized as transactions, the subject of which may be identical (homogeneous) goods (works, services) and which are made in comparable commercial and (or) financial conditions.
6. When choosing the method used in determining for the purposes of taxation income (profit, revenue) in transactions, the parties to which are related parties, the completeness and reliability of the initial data, as well as the validity of the adjustments made in order to ensure the comparability of the compared transactions with the transaction being analyzed, must be taken into account. .
7. In order to apply the methods provided for in paragraph 1 of this article, in addition to information on specific transactions, publicly available information on the current level of market prices and (or) exchange quotations, as well as data from information and price agencies on prices (price intervals) for identical ( homogeneous) goods (works, services) in the respective markets of the said goods (works, services). The use of the sources of information on market prices indicated in this paragraph for the purpose of applying the methods provided for in paragraph 1 of this article is allowed provided that the transactions, data on which are contained in these sources of information, are comparable with the transaction being analyzed.
8. For the purposes of applying the methods specified in subparagraphs 2 and 3 of paragraph 1 of this article, the data of the accounting (financial) statements, on the basis of which the profitability interval is calculated, must be brought into a comparable form, ensuring that the impact of deviations in the procedure for accounting for expenses on indicators is insignificant. profitability and the interval of profitability, calculated in accordance with the methods specified in subparagraphs 2 and 3 of paragraph 1 of this article.
If it is impossible to ensure the comparability of the data of the accounting (financial) statements for the purposes of calculating the interval of profitability and determining for the purposes of taxation of income (profit, proceeds) in transactions, the parties to which are interdependent persons, the methods specified in subparagraphs 4 and 5 of paragraph 1 of this article are used.
9. If the methods specified in paragraph 1 of this article do not allow determining whether the price of a product (work, service) applied in a one-time transaction corresponds to the market price, the correspondence of the price applied in such a transaction to the market price may be determined based on the market value of the subject of the transaction, established as a result of an independent assessment in accordance with the legislation of the Russian Federation or foreign states on valuation activities.
At the same time, for the purposes of this article, a one-time transaction means a transaction, the economic essence of which differs from the main activity of the organization and which is carried out on a one-time basis.
10. The methods specified in subparagraphs 4 and 5 of paragraph 1 of this article may be applied without direct calculation of market price values. When using these methods, the federal executive body authorized for control and supervision in the field of taxes and fees compares the financial indicators (results) of the analyzed transaction (group of homogeneous analyzed transactions) with the profitability interval (financial indicators calculated on the basis of the profitability interval) for comparable transactions, on the basis of which it calculates the amount of income (profit, proceeds) that would be received if the parties to this transaction were persons not recognized as related.
11. The court may take into account other circumstances that are important for determining the compliance of the price applied in the transaction with the market price, without the restrictions provided for in Chapter 14.2 of this Code and this Chapter.
12. When concluding transactions, taxpayers are not required to be guided by the methods specified in paragraph 1 of this article to justify their pricing policy for purposes not provided for by this Code.
Types of Methods
Evaluation criteria for tax price control in transactions between related parties were introduced by Law No. 227-FZ in 2012.
This normative act significantly changed the methodological approach to the procedure for proving the conformity of prices used in controlled transactions with the market level, which became the reason for numerous disputes.
In this article, we will consider the most difficult issues that arise when determining market prices for the purposes of taxation on transactions under the control of the state.
With the introduction of new rules used in pricing, a new concept appeared in the Tax Code (Article 105.14) - a controlled transaction. This is a transaction between related parties.
A closed list of related parties is provided by Article 105.1 of the Tax Code of the Russian Federation. The legislator defines them as persons whose relationships have an impact on the result of the economic activity of the parties to the transaction.
It should be noted that companies that have carried out a controlled transaction must independently notify the tax inspectorate of its conduct (Article 105.16 of the Tax Code of the Russian Federation). The notice period is until May 20 following the reporting year. Information about controlled transactions is accumulated by the Federal Tax Service of the Russian Federation, which analyzes market prices in order to control the correctness of taxation.
An appropriate methodology is used for this purpose. Article 105.7 of the RF Tax Code defines the methods that may be used to determine revenue for tax purposes in controlled transactions. There are five such methods. They have a specific usage precedence:
- comparable market price method;
- resale price method;
- costly method;
- method of comparable profitability;
- profit distribution method.
These methods should be used by the tax authorities if this does not lead to a reduction in taxes payable to the budget of the audited party to the transaction (Chapter 14.3 of the Tax Code of the Russian Federation).
Features of the methods
Each of the methods has its own characteristics, and is applied strictly under certain circumstances, regulated by tax legislation.
The essence of the method of comparable market prices is to compare the price of a controlled transaction with homogeneous transactions that were concluded by other independent market participants. The participants in a comparable transaction may not be interdependent persons, and the subject of the transaction may be an identical product.
This method is the most accurate and priority. However, for its implementation it is necessary that the controlled transaction be comparable to at least one transaction made by independent enterprises.
The calculation of the price using this method is carried out in the following way:
- a selection of market prices for homogeneous transactions is made;
- the interval of market prices is established (their minimum and maximum values are determined);
- the analysis of compliance of the price of the controlled transaction with the established interval is carried out.
If the price of a controlled transaction is within the range of market prices, then the company's income is recognized as corresponding to the market.
This does not lead to any negative consequences.
The resale price method can be applied in two cases:
- if the application of the previous method for one reason or another is impossible;
- if the goods acquired as a result of controlled transactions are sold to other persons (not interdependent) without its processing.
The method is based on the analysis of the purchase price of the product and the price of its subsequent sale.
The application of the cost method is based on an analysis of the costs associated with the manufacture of goods or products that were the subject of a controlled transaction. The use of this method is most suitable for the analysis of transactions related to the following:
- money management services;
- sale of raw materials or semi-finished products;
- services provided under long-term contracts.
When analyzing a controlled transaction using the comparable profitability method, the gross profitability indicator is taken as the basis. This indicator is determined on the basis of accounting data, while excises and VAT are not taken into account. The calculation algorithm is similar to the method of comparing market prices, the only difference is that instead of comparable prices, gross margin indicators are taken as the basis.
The profit comparison method is based on comparing the amount of profit that the parties received as a result of the controlled transaction with the profit received by independent companies on homogeneous transactions. The use of this method is advisable for companies that own the rights to intangible assets that affect the level of taxable profit of the company.
Objectives of the methods
With the help of these methods, it is possible to reliably determine whether the proceeds received as a result of a controlled transaction correspond to the market price or not.
If the sales price differs significantly from the level of market prices (by more than 30%), the tax inspectorate makes an additional charge of income tax, while substantiating the correctness of its conclusions.
In order to substantiate the calculations made, pricing methods provided for by tax legislation are used.
The use of other methods is expressly prohibited by law.
These methods can be used not only by the tax authorities, but also, first of all, by the taxpayers themselves, who carry out transactions with related parties. A preliminary price calculation will help companies justify the amount of revenue received in the event of a tax audit and reduce the risk of recognizing a pricing policy that does not correspond to the market level.
If the company cannot properly justify the prices used, the tax authorities have the opportunity to charge additional income tax.
Homogeneous transactions
The definition of homogeneous transactions is given by article 105. 7 of the Tax Code of the Russian Federation. These are transactions, the subject of which are goods identical to the subject of a controlled transaction. Homogeneous transactions must be completed under conditions comparable to those of controlled transactions. In accordance with the provisions of Article 105.5, the comparability of a transaction is determined by the following criteria:
- characteristics of the goods that are the subject of a comparable and controlled transaction;
- characteristics of the functions that are performed by the parties in the course of the transaction, taking into account the customs of business turnover. The risks of the parties to the contract, the procedure for distributing responsibility between them, the assets used are assessed;
- analysis of the terms of the contract that affect the price of the goods;
- analysis of the economic conditions in which the transaction takes place.
The following factors are also taken into account:
- geographical position;
- competitiveness;
- purchasing power;
- the level of development of infrastructure (transport production), if it affects the price of the contract.
In order to ensure the necessary degree of comparability of the conditions in which the transaction was made, the tax inspectorate may apply adjustments, the rules for which are also established by the Tax Code.
Tax legislation also establishes requirements for information sources used to compare the terms of transactions.
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