The list of revenues that are not taken into account for tax purposes is contained in Article 251 of the Tax Code of the Russian Federation. Operations for the acquisition of these funds are not considered as a benefit on income tax, are not considered and as profits (income), that is, do not form at all tax base For income tax.
Paragraph 1 of Article 251 of the Tax Code of the Russian Federation contains a list of operations to obtain certain types of funds not subject to taxation.
Clause 2 of Article 250 of the Tax Code of the Russian Federation contains a list of target revenues not subject to taxation. The list of operations on the receipt of the funds listed in paragraph 1 of the commented article concerns any organizations, the list of operations on the targeted entry of funds listed in paragraph 2 of this article mainly concerns the activities of non-profit organizations and budget trae.
When determining the tax base for income tax not taken into account:
1. Revenues in the form of property, property rights, works or services that are obtained from other persons in order to pre-pay goods (works, services) by taxpayers defining income and expenses by the accrual method.
The position of this item concerns only those organizations that determine income and expenses for tax purposes by the method of accrual.
This subparagraph states that when determining the tax base is not taken into account in the amount of income of the amounts received in order of preliminary payment by taxpayers defining income and expenses on the accrual method. Thus, property, property rights, works or services that are obtained from other persons in order of payment are not taxable income for taxpayers applying the accrual method.
Organizations that use the cash management method for recognizing income and expenses are required to include the amount of preliminary payment income and reflect the specified funds as part of income to be taxed 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, where it is indicated that the date of receipt of income is recognized as the day of receipt of funds for accounts in banks and (or) to the cashier, the receipt of other property (works, services) and (or) property rights, that is When determining income into revenue from the sale of goods (works, services), the advances received.
For example, admitted advances and are not taken into account in the lessor in taxation of profit at the time of their receipt of leasing payments paid in excess of the size established by the schedule of payment of leased payments (the letter of the Ministry of Finance of the Russian Federation of March 16, 2006 No. 03-03-04 / 2/79) .
2. Revenues in the form of property, property rights, which are obtained in the form of a pledge or a deposit as collateral.
According to Article 334 of the Civil Code of the Russian Federation, pledge is a way to ensure the obligation, in accordance with which the debtor (mortgager) transfers the property (property rights) to the lender (mortgagee) on a secured pledge obligatory. In case of non-fulfillment by the debtor of this obligation, the lender has the right to receive satisfaction from the value of the stated property.
It should be borne in mind that this provision concerns only the transmission of the laid property. In accordance with Article 338 of the Civil Code of the Russian Federation, property remains (considered to be the remaining) at the pledger, and therefore cannot be considered as transmitted, in the following cases:
the mortgaged property remains at the pledger, unless otherwise provided by the deposit agreement;
at a pledge of property to which mortgage is installed ( real estate);
when transferring a pledge subject to possession or use to a third party.
The deposit according to Article 380 of the Civil Code of the Russian Federation recognizes the money amount issued by one of the Contracting Parties to the Other Parties due from it under the contract, in proof of the contract concluding and to ensure its execution. By virtue of the similarity of the advance (preliminary payment) and the deposit, as well as taking into account the fact that organizations applying for the purpose of taxation of the cash transmission method take into account the preliminary payment in taxable income, it is necessary to distinguish the indicated concepts. The making agreement regardless of the deposit amount should always be performed 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 whether the amount paid in the account due on the part of the payments, a deposit, this amount is considered to be paid as an advance if otherwise proven.
ATTENTION! In accordance with paragraph 32 of Article 270 of the NKRF in determining the tax base! Not taken into account expenses! In the form of property or property rights transmitted as a deposit, pledge.
3. Revenues! in the form of property, property rights or non-property rights having monetary evaluationwhich are obtained in the form of contributions (deposits) to the authorized (share) capital (fund) of the organization (including income in the form of exceeding the price of placing shares (shares) over their nominal value (initial size).
The current civil legislation, the formation of authorized (share) capital (fund) is provided for such varieties legal entities, as:
economic partnerships and society (full and comdatory partnerships (partnerships on faith);
limited liability companies, joint stock companies;
production cooperatives (in industrial cooperatives at the expense of their members of their members are formed by the Page Fund);
unitary enterprises.
In accordance with the current legislation, the contribution to the authorized (share) capital (fund) of the organization can be money, securities, other things or property rights or other rights that have a monetary assessment (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, it is not recognized by the sale of goods (works, services) the transfer of property if such an operation is investment in nature, in particular, contributions to the authorized (share) capital of economic societies and partnerships, deposits under a simple partnership agreement (Agreement on joint activities), fedders in functions cooperatives.
Income (not taken into account for income tax purposes) In the form of exceeding the price of placing shares above their nominal value, it may arise as a result of an increase authorized capital societies. According to Article 28 of Law No. 208-ФЗ, authorized capital joint Stock Company It can be increased by increasing the nominal value of shares or place additional shares.
The decision to increase the authorized capital by increasing the nominal value of shares is made by the General Meeting of Shareholders. An increase in the authorized capital by placing additional shares is made by the 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 property of society. Increasing the authorized capital of the Company due to its property by placing additional shares, as a result of which fractional shares are formed, it is not allowed.
In addition, the amount on which the authorized capital increases at the expense of the Company's property should not exceed the difference between the cost pure assets societies and the sum of the authorized capital and the Society Reserve Fund.
These shares are accommodated among all shareholders. At the same time, each shareholder distributes shares of the same category as the shares that belong to it is proportional to the number of shares belonging to it.
The increase in the authorized capital of a limited liability company is allowed only after its full payment due to the property of the Company and (or) due to additional contributions Participants in the Company or due to the contributions of third parties adopted in the Company (Article 17 of Law No. 14-FZ).
In accordance with Article 18 of the Law No. 14-FZ, with an increase in the authorized capital of the Company, due to its property, the nominal value of the share of all participants in the Company without changing the size of their share is proportion.
An increase in the authorized capital of the Company due to the additional contributions of its participants and the contributions of third parties is regulated by Article 19 of the Law No. 14-FZ. At the same time, the amount on which the authorized capital of the Company increases due to its property should not exceed the difference between the value of the Company's net assets and the sum of the authorized capital and the Society Reserve Fund.
Features of determining the tax base for income received from the transfer of property to the authorized (share) capital (fund) of the Organization established by Article 277 of the Tax Code of the Russian Federation.
4. Revenues! In the form of property, property rights, which were obtained within the contribution (contribution) by a participant in the economic society or the partnership (his successor or heir) at the exit (disposal) from the economic company or the partnership or during the distribution of property of the liquidated economic society or the partnership between its participants.
This provision mainly refers to full partnerships and partnerships at faith, as well as societies with limited and more responsibility. In relation to joint-stock companies, the specified norm of the Tax Code of the Russian Federation is applied only in the case of the distribution of the Company's property shareholders during its liquidation.
The concept of the participant's exit from the joint stock company is not provided for by law, the concept of a participant from the joint stock company (it is possible to leave among the participants of the joint-stock company only when selling or other alienation owned by the shareholder of shares).
According to Article 26 of the Law No. 14-FZ, the participant is entitled at any time to leave the Society regardless of the consent of other participants or society itself. At the same time, the Company is obliged to pay the actual value of its share overcoming participant (paragraph 2 of Article 14 of Law No. 14-FZ) determined on the basis of data accounting reporting Societies for the year in which the application was submitted, or with the consent of the participant to give him property of the same cost in nature. Payment must be made within six months from the end of the fiscal year, in which the application is submitted, unless longer than the statute.
The exclusion of the participant from the Company with a limited (additional) responsibility is allowed only in judicial order At the request of other participants whose share in aggregate accounts to at least 10 percent of the authorized capital. At the same time, the condition should be implemented that the exclusive participant rings roughly the participant's responsibilities either by its actions (inaction) makes it impossible to the Company's activities or it makes it much difficult (Article 10 of Law No. 14-FZ).
Based on paragraph 17 of the Resolution 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 of December 9, 1999. "On some issues of application Federal Law "On Limited Liability Societies", the basis for the exclusion of the participant from the Society can serve as a systematic evasion without good reasons for participation in the general, meeting of the Company's participants, depriving society 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 release and exclusion of the participant from the full partnership and the partnership on faith.
According to Article 23 of Law No. 208-ФЗ, the distribution of property of the liquidated joint stock company between its shareholders is made only after the completion of calculations with the creditors of the Company, as well as after paying for shares to be redeemed on the basis of article 75 of the named law, and payments for accrued but not paid Dividends on preferred shares and a certain charter of the society of liquidation value on privileged shares.
The initial contribution is determined in relation to partnerships and societies with limited (additional) liability, based on the nominal value of the contributions of the founding participants specified in the constituent agreement of the partnership (society). It should be borne in mind that the cost of the participant's contribution may increase due to the implementation additional contributions or at the expense of other sources, in particular by additional capital. In the latter case, the cost of the initial contribution is required to calculate the income without taking into account the rated value of the share.
In relation to joint-stock companies, the initial contribution is determined on the basis of the total nominal value of shares of the first issue acquired by the shareholder in establishing the Company.
ATTENTION! Clause 3 of Article 270 of the Tax Code of the Russian Federation, it was established that expenses are not recognized! In the form of a contribution to the authorized (share) capital, the contribution to a simple partnership (that is, both the initial and subsequent).
According to subparagraph 5 of paragraph 3 of Article 39 of the Tax Code of the Russian Federation, it is not recognized by the implementation:
"The transfer of property within the initial contribution to the participant of the economic society or the partnership (his successor or heir) when leaving (retirement) from a business community or partnership, as well as during the distribution of property of the economic society or partnership between its participants."
"In accordance with the norms Civil Code Of the Russian Federation and the Federal Law of 08.02.1998 No. 14-FZ "On Limited Liability Societies" are clearly delimited for the participant of society two different economic operations: Exit from society (in this case we are talking about the actual value of the share) and the sale (implementation) of its share of society 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 implementation of goods (works, services) Transfer of property within the initial contribution to the participant of the economic society or the partnership (his successor or heir) upon exit (retirement) from The economic society or the partnership, as well as the distribution of property of the liquidated economic society or the partnership between its participants.
In the sense of the specified norm under " initial contribution»This meant in the contribution of the participant to the authorized capital of the Company under its establishment.
In accordance with subparagraph 4 of clause 1 of Article 251 of the Code, in determining the tax base, income in the form of property, property rights, which were obtained within the contribution (contribution) by a participant in the economic company or the partnership (his successor or heir) upon exit (retirement) from the economic Society or partnerships either when distributing the property of the liquidated economic company or the partnership between its participants.
Accordingly, according to paragraph 3 of Article 270 of the Code, in determining the tax base, expenses are not taken into account in the form of a contribution to the authorized (share) capital, the contribution to a simple partnership.
According to the Department, under the contribution (contribution) of the participant in the economic company, obtained from its exit of society or in the liquidation of society, it is necessary to understand contributions to the authorized capital of the Company (both under its establishment and with an increase in its authorized capital) or in the case of acquiring a share from other participants. The contributions of the participants in the Company's property in the category of deposits in the registered capital are not included.
The incomes of the Company's participant, obtained over the amount of the contribution when leaving the Company, increase the tax base for income tax. The loss received by the participant when leaving the Company (in case of exceeding the value of the contribution to the authorized capital over the actual value of the share), is not recognized as a loss taken into account for tax purposes. "
5. Revenues in the form of property, property rights and (or) of non-property rights that have a monetary assessment, which are obtained within the contribution by a participation of a simple partnership agreement (agreement on joint activities) or its successor in the case of its share of property owned by property Participants of the contract, or section of such property.
Revenues in the form of property, property rights, which were obtained within the contribution by a participation of a simple partnership agreement in the event of its share of property, which is the total ownership of the contract participants, or the division of such property is not taken into account when determining the tax base. Revenues obtained from the premium for income tax purposes are recognized by non-evalization revenues.
The division of property in the overall ownership of comrades, as well as the general rights of the Compass, are made in the manner established by Article 252 of the Civil Code of the Russian Federation. In accordance with the specified article, the property can be divided between participants by agreement between them. At the same time, the participant of the share ownership has the right to demand the separation of its share from the common property.
With the participants in the share ownership of the Agreement on the method and conditions of the section of the common property or the share of one of them, the share ownership participant is entitled to require the separation of its share from the common property. If the samples in nature is not allowed by law or is impossible without disproportionate damage to property that is commonly owned, the owner has the right to pay it to its share of other participants in equity ownership.
The disproportion of property allocated in nature a participant in the share ownership of its share in the right of ownership is eliminated by the payment of the relevant monetary amount or other compensation. The payment of the participant of the share ownership by the remaining owners of compensation instead of the separation of its share in nature is allowed with its consent.
In cases where the proportion of the owner is insignificant, cannot be really highlighted, and it does not have a significant interest in the use of common property, the Court may and, in the absence of the consent of this owner, to oblige the remaining participants in the share ownership to pay him compensation. With the receipt of compensation, the owner loses the right to share in general, the property of the partnership.
6. Revenues in the form of funds and other property, which were obtained in the form of gratuitous assistance (assistance) in accordance with the procedure established by the Federal Law "On gratuitous assistance (assistance) of the Russian Federation and making changes and additions to individual legislative acts Of the Russian Federation on taxes and the establishment of benefits on payments to state extrabudgetary funds in connection with the implementation of gratuitous assistance (assistance) of the Russian Federation.
Not taken into account when determining the tax base Revenues in the form of funds and other property obtained in the form of gratuitous assistance (assistance) in accordance with the procedure established by the Federal Law of May 4, 1999 No. 95-FZ "On gratuitous assistance (assistance) of the Russian Federation and amending and additions to the individual legislative acts of the Russian Federation on taxes and the establishment of benefits on payments to state extrabudgetary funds in connection with the implementation of gratuitous assistance (assistance) of the Russian Federation. "
According to the indicated law, it is not subject to taxation of gratuitous assistance, technical assistance, humanitarian aid.
Definitions of gratuitous assistance, technical and humanitarian care are contained in Article 1 of the Law
Gratuitous assistance (assistance) - funds, goods that are provided to the Russian Federation, subjects of the Russian Federation, state authorities and local governments, legal entities and individuals, as well as work performed for them and services provided by them as humanitarian or technical assistance (assistance ) is free of charge by foreign states, their federal or municipal entities, international and foreign institutions or non-profit organizationsAs well as individuals (with the exception of cases provided for by the third of this article), which there are certificates (documents) confirming the belonging of these funds, goods, works and services to humanitarian or technical assistance (assistance).
Technical assistance (assistance) - the type of gratuitous assistance (assistance) provided to support the implementation of economic, social reforms and the implementation of disarmament through the conversion, utilization of weapons and military equipment, conducting radiation-environmental measures to handle radioactive waste, spent nuclear fuel and other nuclear materials previously accumulated and (or) formed during operation and deriving objects of peaceful and military use of atomic energy, as well as through research, training, exchange experts, graduate students and students, transmission experience and technology, equipment supplies and other material and technical means for registered in the prescribed manner projects and programs.
Humanitarian aid (assistance) - a type of gratuitous assistance (assistance) provided to provide medical and social assistance to low-income, socially unprotected affected by natural disasters and other emergencies in population groups to eliminate the effects of natural disasters and other emergencies, transportation costs, Accompanying and storage of specified assistance.
At the same time, it is necessary to take into account that the belonging of funds, goods, works and services to humanitarian or technical assistance (assistance) is confirmed by the corresponding certificate. The form and procedure for the preparation of these certificates approved by Decree of the Government of the Russian Federation of September 17, 1999 No. 1046 "On approval of the procedure for registration of projects and programs for technical assistance (assistance), issuing certificates confirming the belonging of funds, goods, works and services to technical assistance (assistance ), as well as the implementation of control over its targeted use "and the Decree of the Government of the Russian Federation of December 4, 1999 No. 1335" On approval of the procedure for the provision of humanitarian assistance (assistance) of the Russian Federation ".
When applying the specified position, it is necessary to take into account that they cannot refer to a gratuitous humanitarian and (or) technical assistance (promotion) excisive goods (products).
The analysis of concepts gratuitous assistance, technical assistance, humanitarian aid shows that when receiving funds in the form of technical assistance (assistance) applies only to direct recipients of technical assistance (assistance) with a certificate confirming the belonging of funds, goods, works and services for technical assistance, from the technical assistance donor specified in the certificate.
These funds used not on the intended purpose are included in the composition of non-revenue income and are subject to tax on income in the general order.
Funds obtained in the form of gratuitous assistance (assistance) are reflected in taxpayers in tax Declaration on the income tax "Report on target use property (including money), works, services obtained within charitable activities, targeted earnings, targeted financing. "
A report on the targeted use of property (including cash), works, services received within the framework of targeted receipts, targeted financing should be submitted to the tax authorities as part of the tax declaration on the income tax for the tax period (year).
7. Revenues in the form of fixed assets and intangible assets, free of charge obtained in accordance with international treaties of the Russian Federation, as well as in accordance with the legislation of the Russian Federation, nuclear power plants to increase 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 operating nuclear power plants and receiving free funds and intangible assets to increase their safety and use them for production purposes. With the misuse of the use of funds received from the budget, such organizations have an non-revenue income (article 250 of the Tax Code of the Russian Federation).
8. Revenues in the form of property obtained by budgetary institutions to solve the executive bodies of all levels.
In determining the tax base for income tax, income in the form of property obtained budget organizations By decision of the executive authorities of all levels. At the same time, the executive body can provide the establishment of necessary property, both in physical terms and by allocating the volume of budget allocations.
In the event that the property purchased at the expense of budget funds will be used to carry out entrepreneurial activities, it will not be legitimate.
The property report received by budgetary institutions to solve the executive authorities of all levels is submitted by taxpayers in the tax declaration on the income tax ("Report on the targeted use of property (including cash), works, services obtained under charitable activities, target receipts, targeted financing ").
9. Revenues in the form of property (including cash) received by the commissioner, agent and (or) in connection with the fulfillment of obligations under the Commission agreement, agency agreement or another similar agreement, as well as at the expense of the costs produced by the commission agent, Agent and (or) other attorney for the committee, the principal and (or) other principal, if such costs are not subject to inclusion in the cost of the commissioner, agent and (or) other attorneys in accordance with the terms of the prisoners of the contracts. TO specified income Does not include a commission, agency or other similar remuneration.
To revenues not taken into account when determining the tax base include:
property (including cash) in connection with the execution of obligations under the Commission agreement, agency agreement or another similar agreement;
cash amounts at the expense of the costs produced by a commissioner, agent and (or) other attorneys for the committee, the principal and (or) other principal, if such costs are not subject to inclusion in the cost of the commissioner, agent and (or) other attorneys in accordance with Terms of concluded contracts.
10. Revenues! In the form of funds or other property that were obtained under loan or borrowing contracts (other similar means or other property, regardless of the form of borrowing, including securities on debt obligations), as well as funds or other property that were received on the repayment of such borrowing.
Borrowed relations, as well as relations related to the provision credit fundsare settled according to paragraphs 1 and 2 chapters 42 of the Civil Code of the Russian Federation. The main difference between the loan and loan is that, firstly, the subject loan agreement There can only be money, while the subject of a loan agreement is money and other things determined by the generic signs. Secondly, if only a bank or other bank lender can speak credit organisationlicensed banking activitiesThe lender under the loan agreement can be any physical or legal person. In addition to the loan agreement and the loan agreement for debt relations, debt securities (bills and bonds), a commodity loan agreement (Article 822 of the Civil Code of the Russian Federation) can be used.
According to Article 807 of the Civil Code of the Russian Federation under the contract, one party (lender) transfers to the property to the other party (borrower) money or other things defined by generic signs, and the borrower undertakes to return the google of the same amount of money (the amount of the loan) or an equal number of other Things of the same kind and quality. This means that if the borrower received 10 tons of wheat under the loan agreement, then it was 10 tons of wheat that should return, and the same variety and the same quality that the wheat loan received by him under the loan agreement. If the material values \u200b\u200bof a different kind are returned (for example, grain is obtained, and lumber are returned), then the contract is qualified as a contract of exchange.
The loan agreement between citizens must be concluded in writing if its sum exceeds at least ten times established by law minimum size wage. If the lender is a legal entity, then regardless of the amount of the loan agreement must be concluded in writing.
According to Article 819 of the Civil Code of the Russian Federation, the Credit Agreement - the Agreement on which a bank or other credit organization (creditor) undertakes to provide cash (credit) borrower in the amount and conditions provided for by the Treaty, and the borrower undertakes to return the resulting monetary sum And pay interest on it. The relations under this contract apply 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 being of the loan agreement. The loan agreement must be concluded in writing. Not compliance with these conditions implies the invalidity of the loan agreement. According to Article 820 of the Russian Federation, such a contract is negligible.
Thus, taxpayers of any category for income not taken into account in the determination of the tax base belongs to both receipts of funds in the form of borrowing and receipts in the form of a return of funds under the above agreements. At the same time, the income obtained in the form of interest on such contracts will refer to 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 the income tax on the profit of an interest-free loan.
"The Department of Tax and Customs Tariff Policy reviewed a letter on accounting for the purpose of taxation of the profits 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 tax base for the income tax is not taken into account, income in the form of funds or other property, which are obtained under loan or loan agreements (other similar means or otherwise Property Regardless of the form of borrowing, including securities on debt obligations), as well as funds or other property that are received on the repayment of such borrowing.
Thus, the loan amount received by the taxpayer is not affected by its tax base for the income tax.
Since Chapter 25 of the Code is not provided in the composition of income to be taxed, such a type of income as material Benefitobtained from the use of an interest-free loan, the taxpayer does not increase the tax base for the income tax in the amount of such benefits.
When returning an interest-free loan, the taxpayer, on the basis of paragraph 12 of Article 270 of the Code, does not reflect in the cost of the costs taken into account in the taxation of profits, expenses in the form of funds or other property that are aimed at repaying such a loan. "
11. Revenues in the form of property received by the Russian organization for free of charge:
from the organization, if the authorized (share) capital (fund) of the receiving parties by more than 50 percent consists of the contribution (share) of the transmitting organization;
from the organization, if the charter (share) capital (fund) of the transmitting party by more than 50 percent consists of the contribution (share) of the receiving organization;
from an individual, if the authorized (share) capital (fund) of the receiving party by more than 50 percent consists of contribution (share) of this individual. In this case, the received property is not recognized income for tax purposes only if within one year from the date of its receipt of the specified property (except for cash) is not transmitted to third parties.
The norms of this subparagraph affect only taxpayers - Russian organizations. At the same time, it is possible to use this provision when performing the following conditions:
the founder must have a share in the authorized capital of the organization exceeding 50%;
the resulting property (except for cash) during the year should not be transferred to the organization to third parties.
So in the Resolution of the FAS of the Moscow District dated December 30, 2004, December 28, 2004 No. Ka-A41 / 12311-04-P were considered to be the case that, when determining the tax base for income tax, the organization did not include funds received received from the organization to the current account, in a taxable income tax base. Having considered the case file, the court came to the conclusion that the organization was legitimate not included in the tax base for income tax funds, since the specified funds were obtained from an organization that owns more than 50% of the authorized capital of the receiving party.
The property (including cash), which was obtained by a subsidiary from the parent organization, whose share in the authorized capital of the subsidiary is more than 50 percent, under the loan agreement, if the obligation under the loan agreement was subsequently discontinued by the forgiveness of debt, not taken into account Tax purposes in accordance with subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation (the letter of the Ministry of Finance of the Russian Federation of April 7, 2006 No. 03-03-02 / 79).
12. Revenues in the form of interest amounts obtained 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 (extrabudgetary fund).
According to Articles 78-79 of the Tax Code of the Russian Federation, the specified funds include interest received by taxpayers, tax agents and payers of fees from budgets and extrabudgetary funds In case of untimely returns to them are unnecessarily paid (recovered) amounts of taxes and fees.
Returns of the amounts of unnecessary paid tax is made at the expense of the budget (extrabudgetary fund), which occurred overweight, within one month from the date of submission of an application for return. In violation of the specified period, the amount of unnecessarily paid tax, not returned on time, interest is charged for every day of the return period based on the refinancing rate of the Central Bank of the Russian Federation.
Returns of the amount of overwhelmed tax is made at the expense of general revenues to the budget (extrabudgetary fund), in which the amounts of excessive taxed tax were enrolled, within one month from the date of decision-making by the tax authority or court. At the same time, interest on the specified amount are accrued from the day following the day of recovery, on the day of the actual return on the basis of the refinancing rate of the Central Bank of the Russian Federation.
In accordance with Article 176 of the Tax Code of the Russian Federation, interests received by taxpayers for the late return of VAT sums on ordinary operations, as well as operations taxable at a rate of 0 percent.
In accordance with Article 203 of the Tax Code of the Russian Federation, interests received by taxpayers for increasing return of excise taxes on these funds.
Interest accrued by the tax authorities for a late return of an overlaid (recovered) amount of tax or fee, as well as interest accrued for late reimbursement of value added tax and returned to taxpayers (fees) bodies of the Federal Treasury of the Ministry of Finance of the Russian Federation, are recorded Code of classification of income of the budgets of the Russian Federation and the following tax (collection), which interests interest for late refund (reimbursement) is an indication of the order of the Ministry of Internal Affairs of the Russian Federation No. 74N of the Ministry of Finance of the Russian Federation No. 74N of September 12, 2001 "On the procedure for accounting for interest accrued for a late refund of an overlaid (recovered) tax amount (collection), as well as interest accrued for late reimbursement of value added tax."
13. Revenues in the form of amounts 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 the Clearing Obligation, and activities on the organization of trade in the securities market.
Resolution Federal Commission According to the securities market of the Russian Federation of August 14, 2002 No. 32 / PS "On approval of the Regulation on Clearing Activities in the Securities Market of the Russian Federation". According to clause 6.1, the Regulations on Clearing Activities to ensure the implementation of securities transactions in respect of which clearing, and reduce the risks of liquidity, systemic risks and risks of non-fulfillment of securities transactions The Clearing Organization forms a Warranty Fund and develops a system for reducing the risks of clearing activities in accordance with the requirements Federal Service by financial market Of the Russian Federation (FSFR).
The minimum amount of the warranty fund establishes the FSFR of the Russian Federation in coordination with the Central Bank of the Russian Federation, depending on the procedure for making clearing activities. Sources of the formation of warranty funds can be cash and securities of clearing participants who are on their bank accounts in settlement organization And at the special sections of the depot accounts in the settlement depositary, the right of disposal in accordance with the rules of clearing activity has a clearing organization.
The use of funds of the Guarantee Fund is allowed only to ensure the fulfillment of the obligations of the Clearing Member in case of insufficient of its securities and (or) funds for the execution of a clearing pool transactions in the manner determined by paragraph 6.8.3 of the Regulation on Clearing Activities.
Based on paragraph 6.7, the provisions on clearing activities. Control over the formation, placement and use of warranty funds is carried out in accordance with the rules of making clearing activities.
14. Revenues in the form of property received by the taxpayer within the framework of targeted financing.
It should be noted that taxpayers who received targeted funding funds are required to conduct separate accounting of income (expenses) obtained (produced) within the framework of targeted financing. In the absence of such accounting, these funds are considered to be taxed from the date of their receipt. To the means of budgets of all levels, state extrabudgetary funds allocated to budgetary institutions on the estimate of income and expenses budget institutionbut not used for intended purpose during tax period Or not used for intended purpose, the norms of budget legislation of the Russian Federation applies.
The means of targeted financing include the property obtained by the taxpayer and the appointment used by him, a specific organization (individual) - a source of targeted financing:
Revenues in the form of funds of budgets of all levels, state extrabudgetary funds allocated by budgetary institutions on the estimate of the income and expenses of the budgetary institution.
According to Article 161 of the BC of the Russian Federation, the Budgetary Institution is an organization established by the state authorities of the Russian Federation, the state authorities of the constituent entities of the Russian Federation, local governments for the implementation of management, socio-cultural, scientific and technical or other functions of a non-commercial nature, activities that are funded from the relevant Budget or the budget of the State Extrabudgetary Fund based on the estimates of income and expenses.
Revenues in the form of grants received.
Grants are targeted funds provided by foreign charitable organizations in monetary or natural form (including fixed assets, materials, goods, and so on) to the implementation of specific programs in the field of education, art, culture, population health (AIDS directions, Drug Addiction, Children's Oncology, Including Oncohematology, Children's Endocrinology, Hepatitis and Tuberculosis), Environmental Protection, Protection of Human Rights and Freedation and Citizen, provided for by the legislation of the Russian Federation, social services for the poor and socially protected categories of citizens, as well as on concrete scientific research .
List of international and foreign organizations whose grants are not taken into account in order to tax purposes russian organizations - Recipients of grants, approved by the Decree of the Government of the Russian Federation of December 24, 2002.
Grants are provided:
on the gratuitous and irrevocable foundations of Russian individuals, non-profit organizations, as well as foreign and international organizations and associations on the list of organizations approved by the Government of the Russian Federation;
to carry out specific programs in the field of education, art, culture, public health (direction - AIDS, drug addiction, children's oncology, including oncohematology, children's endocrinology, hepatitis and tuberculosis), environmental protection, human rights and freedoms and citizens provided for by law Of the Russian Federation, social services to the poor and socially protected categories of citizens, as well as to conduct specific scientific research ";
on the conditions defined by the Gravestover, with the obligatory submission of the report on the target use of the grant.
There are some important momentswhich should be paid attention to.
The first - grants from foreign individuals are now subject to taxation.
The 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 legislation.
The third is exempt from taxation grants, to carry out specific programs in the field of population health (directions - AIDS, drug addiction, children's oncology, including oncohematology, children's endocrinology, hepatitis and tuberculosis) - no other areas of health care are not exempt from taxation.
Fourth - grants are exempt for the implementation of specific programs in the field of human rights and freedoms and freedoms of a person and a citizen provided for by the legislation of the Russian Federation - the direction of the grant should have a reference to at least a specific article of the Constitution of the Russian Federation.
Fifth - grants are exempt for the implementation of specific programs in the field of social services for poor and socially not protected categories of citizens - a specific program should be available.
In the form of investments received during investment contests (trades) in the manner prescribed by the legislation of the Russian Federation.
Privatized organizations that implement the packages of their shares in contests (trading) and receiving the terms of such competitions (trading) from their winners to investment, spend them in the manner provided for by the investment program. If the specified means are not used for intended purpose, then in this part they are subject to inclusion in the tax base in general.
In the form of investments received from foreign investors to finance capital investments Production appropriation, 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 in the territory of the Russian Federation, regulated by international treaties, the Civil Code of the Russian Federation and 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".
According to Article 1 of the Federal Law of February 25, 1999 No. 39-FZ "On Investment Activities in the Russian Federation, implemented in the form of capital investments" investments are cash, securities, other property, including property rights, other rights, Having a monetary assessment invested in objects of entrepreneurial and other activities.
At the same time, investments in fixed assets (fixed assets) include investments in fixed assets (fixed assets), including the costs of new construction, expansion, reconstruction and technical re-equipment of existing organizations, the acquisition of machines, equipment, tools, inventory, design and survey work and other costs.
The concept of "foreign investor" and "foreign investment" is defined in Article 2 of the Federal Law of July 9, 1999 No. 160-FZ "On Foreign Investments in the Russian Federation":
A foreign investor is 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 to investments in the territory of the Russian Federation in accordance with the legislation of the specified state.
Foreign investment - investment foreign capital In the object of entrepreneurial activity in the territory of the Russian Federation as objects civil rightsbelonging to a foreign investor, if such objects of civil rights are not withdrawn from turnover or are not limited to the turnover 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 that have a monetary assessment of exceptional rights to the results of intellectual activity (intellectual property), as well as services and information.
Investments received from foreign investors to finance the capital investments of industrial purposes are the means of targeted funding only if they are used within one calendar year from the date of their receipt.
In the form of accumulated in the accounts of the organization of developers of the shareholders and (or) investors.
In this case, the funds obtained by the development organization from the shareholders (legal entities and individuals) are considered in the order of financing equity participation in the construction, which are targetly spent on construction. This subparagraph affects only one category of taxpayers - organizations that are customers developers. Based on the contract, the customer-developer disposes of the cash funds of the investor (investors) transmitted to finance the construction of production facilities, the objects of the socio-cultural sphere and municipal economy, residential buildings. The customer-developer is borne by the investor property and other provisions provided for by the current legislation for the rational use of allocated resources and material values \u200b\u200bfor construction.
The funds received by the Customer under concluded agreements from the regulatory organizations in the order of equity participation on the construction of facilities, including housing, are a source of targeted financing and are not taxable income tax, provided that the amount of funds received from each shareholder for shared participation In construction, at the time of signing acts of performing the stages of work or the commissioning of the turnkey object (depending on the terms of the contract between the customer and investors of construction) does not exceed the actual costs of the construction of the transmitted part of the object's organization.
Incomes in the form of funds of shareholders accumulated on the accounts of the Developer's accounts are subject to inclusion in the composition of non-revenue income in the case when the recipient actually did not use such funds until the construction of the facility in the deadlines established in the Treaty share participation in construction.
Customers-developers should lead a separate accounting of income and expenses obtained (produced) within the framework of targeted financing. In the absence of the specified accounting, the funds received within the framework of targeted financing are subject to taxation from the date of their receipt.
At the same time, it should be borne in mind that the income of the taxpayer in the form of not on the intended purpose of property (including cash), works, services that were obtained in charitable activities (including in the form of charity, donations), targeted revenues, targeted financing, with the exception of budget funds, are recognized as tax non-tax income (a letter of the Ministry of Finance of the Russian Federation of 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 received property (including cash), work, services under charitable activities, targeted receipts or targeted financing, at the end of the tax period pose into tax authorities at their own accounting report on the target use of the obtained funds in the form approved by the Ministry of Finance of the Russian Federation.
In this regard, the funds received from investors, including the difference between the amount of funds received from investors, and the amount of construction costs, with their misuse of them will be taken into account as tax non-deactive income.
In the form of funds received by the Company of Mutual Insurance from Member States of Mutual Insurance Company.
In accordance with Article 968 of the Russian Federation of the Ministry of Common Insurance Company are non-commercial organizations that carry out property insurance and other property interests of their members.
Citizens and legal entities (members of society of mutual insurance) insure their property and property interests by combining funds in these societies. The funds received by the society of mutual insurance against its members for the target named above are not subject to income tax.
In the form of funds derived from Russian Foundation fundamental studies, The Russian Fund of Technological Development, the Russian Humanitarian Scientific Foundation, the Fund to promote the development of small forms of enterprises in the scientific and technical sphere, the Federal Fund for Industrial Innovation.
To incomes that are not taken into account in taxation include the funds received by taxpayers from the following funds: -
Russian Foundation for Fundamental Research; -
The Russian Fund of Technological Development (Decree of the President of the Russian Federation of April 27, 1992 No. 426 "On urgent measures to preserve the scientific and technical potential of the Russian Federation"; -
Russian Humanitarian Scientific Fund; -
Fund to promote the development of small forms of enterprises in the scientific and technical sphere (Decree of the Government of the Russian Federation of February 3, 1994 No. 65 "On the Fund for the Promotion of Small Forms of Enterprises in the Scientific and Technical Sphere"; -
Federal Fund of Production Innovation.
In the form of funds enrolled in the formation of the Russian Fund for Technological Development, as well as other sectoral and inter-sectoral 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 are not included in the tax base for income tax includes income in the form of funds enrolled in the formation of the Russian Fund for Technological Development, as well as other sectoral and inter-sectoral funding funds for research and development work.
In the form of funds received by enterprises and organizations, which include particularly radiation and nuclear-hazardous production and objects, from reserves intended to ensure the safety of these industries and objects 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 the composition of non-revenue income if the recipient actually used such funds not by intended purpose or did not use the intended purpose within one year after the end of the tax period in which they entered.
Especially radiation and dangerous and nuclear-hazardous production and objects are organizations regardless of the forms of ownership, as well as military units involved in development, production, operation, storage, transportation, disposal nuclear weapons, components of nuclear weapons, radiation and hazardous materials and products.
In the form of funds, fees for air navigation services for aircraft flights in the airspace of the Russian Federation, obtained specifically authorized body in the field of civil aviation.
In all the cases listed above, the institutions that have received targeted funding funds are required to conduct separate accounting of income and expenses obtained (produced) within the framework of targeted financing. In the absence of such accounting from the organization that received the means of targeted financing, these funds are considered to be taxed from the date of their receipt. The funds of budgets of all levels, state extrabudgetary funds allocated to budgetary institutions on the estimation of the income and expenditures of the budgetary institution, but not used on the purpose during the tax period, either used non-intended purpose, the norms of budget legislation of the Russian Federation apply.
A report on the targeted use of the funds received is taxpayers in the form of a sheet of 07 of the tax declaration on the income tax.
The report is transferred to the previous tax period on received, but unused funds, which is not expired.
In the form of insurance premiums of banks in the Deposit Insurance Fund in accordance with the Federal Law on Insuranceing Deposits of Individuals in Banks of the Russian Federation.
In the form of funds received by medical organizations carrying out medical activities in the system of compulsory medical insurance, for rendering medical services insured persons from insurance organizations carrying out compulsory health insurance These individuals.
The funds received by medical organizations from insurance organizations in the framework of compulsory health insurance, for the provision of medical services to the insured persons, are included in the income not subject to taxation.
According to the explanations of the Ministry of Finance in the letter of September 16, 2005 No. 03-03-04 / 1/203 Article 2 of the Law of the Russian Federation of June 28, 1991 No. 1499-1 "On Medical Insurance of Citizens in the Russian Federation" determines that medical institutions In the medical insurance system, having licenses are medical and preventive institutions, research and medical institutions, other institutions that provide medical care, as well as persons carrying out 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 institutions with any form of ownership, accredited in the prescribed manner, have medical insurance. They are independently business entities and build their activities on the basis of contracts with insurance medical organizations.
In this way, medical institution With any form of ownership, which is independently an economic entity, which has accredited in the prescribed manner, has a relevant license and is valid on the basis of an agreement with an insurance medical organization, does not include the tax base for the income tax funds received for the provision of medical services to insured persons from insurance organizations carrying out compulsory medical insurance of these persons.
15. Revenues in the form of the value of the shares additionally received by the organization-shareholder distributed among shareholders by decision of the General Assembly in proportion to the number of shares belonging to them, or the difference between the nominal value of new shares obtained instead of the initial, and the nominal value of the shareholder's initial shares in the distribution of shareholders of shares at An increase in the authorized capital of the joint-stock company (without changing the share of shareholder's participation in this joint-stock company).
Additional shares can be obtained by a shareholder organization from a joint-stock company in the following cases:
with an increase in the authorized capital of the joint-stock company by issuing additional shares;
in the distribution of shares previously repurchased or acquired by joint-stock companies in their shareholders in accordance with Articles 72-77 of Law No. 208-FZ;
in the distribution of shares acquired by the Closed Joint-Stock Company as a result of the implementation of the right to take advantage of shares, alienated by one of the shareholders of the Company. It should be noted that the closed joint-stock company enjoys the right to prevail the shares alienated by the shareholder (shareholders) in the event that this is provided for by the Company's Charter and other shareholders abandoned the acquisition of shares (Article 7 of Law No. 208-FZ).
Wherein required conditions Applications of this NC RF standard are:
shares distribution among shareholders by decision of the General Meeting of the Joint Stock Company;
compliance with the principle of proportional shares ( additional stocks Divided between shareholders in proportion to the number of shares belonging to them).
ATTENTION! According to paragraph 31 of Article 270 of the NKRF, the issuer's organization is not taken into account as a consumption, the cost of the shares transferred to the taxpayer-issuer distributed between shareholders by decision of the General Meeting of Shareholders in proportion to the number of owned
they shares, or the difference between the nominal value of new shares transmitted instead of the initial, and the nominal value of the initial shares of the shareholder in the distribution of shares between shareholders with an increase in the share capital.
16. Revenues in the form of a positive difference formed as a result of reassessment of precious stones when changing in the prescribed procedure for estimated 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 list.
17. Incomes in the form of amounts to which in the reporting (tax) period there was a decrease in the authorized (storage) capital of the Organization in accordance with the requirements of the legislation of the Russian Federation.
The procedure for reducing the statutory (share) capital of the organization is settled, in particular, 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.
We give cases when the organization is obliged to reduce its authorized capital:
according to paragraph 4 of Article 35 of Law No. 208-FZ, if at the end of the second and each subsequent fiscal year in accordance with the annual accounting balanceproposed for approval by the Company's shareholders, or the results of the audit, the cost of net assets of society is less than its authorized capital, society is obliged to declare a decrease in the authorized capital to a value that does not exceed the value of its net assets.
according to paragraph 3 of Article 26 of Law No. 14-FZ, the real value of the share of the participant coming from society is paid due to 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 exit participant, society is obliged to reduce its authorized capital for the missing amount.
18. Revenues in the form of the value of materials and other property, which were obtained when disassembled, disassembly in the elimination of objects derived from the operation destroyed in accordance with Article 5 of the Convention on the Project Development, Production, Accumulation and Application of Chemical Weapons and its destruction and Part 5 of the application for verification to the Convention on the Prohibition of the development, production, accumulation and application of chemical weapons and its destruction.
This provision affects only organizations that are derived from operation facilities for the production of chemical weapons. This category of taxpayers has the cost of materials and other property that are obtained when disassembly, disassembly, when eliminating the objects derived from the operation destroyed in accordance with Article 5 of the Convention on the Prohibition of the Development, Production, Accumulation and Application of Chemical Weapons and its destruction, which is enclosed in the city Paris on January 13, 1993, refers to revenues not taken into account when determining the tax base.
19. Revenues in the form of the value of agricultural producers of land producers and other agricultural facilities (including intra-economic water pipelines, gas and electric networks) built at the expense of budgets of all levels.
The incomes of taxpayers - agricultural producers in the form of the cost of land recovery and other objects of agricultural purposes (including intra-economic water pipelines, gas and electrical networks), built at the expense of budgets of all levels (federal, regional, local), are revenues not taken into account when determining the tax Bases.
In accordance with Chapter 26.1 of the Tax Code of the Russian Federation, an organization, individual entrepreneurs, peasant (farmer) farms, producing agricultural products on agricultural landfills and realizing this product, are recognized as agricultural products, including products of its processing, provided that in the total revenue From the sale of goods (works, services) of these organizations, individual entrepreneurs, peasant (farmer) farms, the share of revenue from the sale of this product is less than 70%.
Agricultural organizations of industrial type agricultural producers are not recognized as agricultural producers (sodeshoz, livestock complexes, poultry farms, greenhouses and others), determined by the list approved by legislative (representative) bodies of the constituent entities of the Russian Federation.
20. Revenues in the form of property and (or) property rights, which are obtained by organizations of the state reserve of special (radioactive) raw materials and dividing materials of the Russian Federation from operations with material values State reserves of special (radioactive) raw materials and dividing materials and are aimed at restoring and content of these stocks.
In the organizations of the state reserve of special (radioactive) raw materials and dividing materials of the Russian Federation with the right, in the prescribed manner to perform operations with the material values \u200b\u200bof these state reserves, revenues in the form of property and (or) property rights from these operations are recognized as income not taken into account when determining The tax base, provided that these revenues are aimed at restoring and maintaining the state reserve of special (radioactive) raw materials and dividing materials of the Russian Federation.
21. Revenues in the form of the amount of payables of the taxpayer on the payment of taxes and fees before budgets of different levels, written off and (or) reduced in a different way in accordance with the legislation of the Russian Federation or by decision of the Government of the Russian Federation.
The debt of the taxpayer for foams and fines the code is not equal to debt on the payment of taxes and fees. Consequently, the summary of paragraphs and fines of the payable arrears of the taxpayer, 21 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation (the letter of the Ministry of Finance of the Russian Federation of January 13, 2006 No. 03-03-02 / 5 "On account of the amount of penalties and Debt fines before budget for income tax. "
22. Revenues in the form of property, free of charge received by state and municipal educational institutions, as well as non-state educational institutionshaving licenses for the right educational activities, on making statutory activities.
According to the Law of the Russian Federation of July 10, 1992 No. 3266-1 "On Education", the educational institution is a legal entity engaged in the educational process, that is, implementing one or more educational programs and (or) ensuring the content and education of students, pupils. The non-state educational institution can be created in the organizational legal forms provided for by the Civil Law of the Russian Federation for non-commercial organizations.
A report on the targeted use of the received property is submitted by taxpayers in the tax declaration on the income tax.
23. Revenues in the form of fixed assets obtained by organizations belonging to the structure of the Russian defense sports and technical organization (ROSTO) (when transferring them between two and more organizations entering into the structure of Rosto) used to prepare citizens in military accounting specialties, military patriotic education of young people, the 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 included in the structure of the Russian Defense Sports and Technical Organization (Rosto). Incomes obtained in the form of fixed assets from organizations included in the same structure are not taken into account when determining the tax base. At the same time, fixed assets should be used on the specified goals.
24. Revenues in the form of a positive difference received during the revaluation of securities by market value. Revenues in the form of a positive difference received during the revaluation of securities at market value,
relevant to income not taken into account when determining the tax base for income tax.
We pay attention, paragraph 22 of PBU 19/02, there is a revaluation of debt securities, according to 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 appeal is evenly resolved, as they are due to them in accordance with the terms of income issuance, financial results A commercial organization (as part of other income or expenses) or a decrease or increase in the costs of a non-profit organization.
Revenues (expenses) defined as a result of the revaluation of debt securities for income tax purposes are not taken into account (the letter of the Ministry of Finance of the Russian Federation of April 8, 2005 No. 03-03-01-04 / 1/175).
25. Revenues in the form of the amounts of restored reserves for impairment of securities (with the exception of rendrets, the costs of which in accordance with Article 300 of the Tax Code of the Russian Federation have previously reduced the tax base).
Organizations income in the form of the amounts of recovered reserves for impairment of securities are revenues not taken into account when determining the tax base for income tax. The exception is reserves, the costs for the creation of which in accordance with Article 300 of the Tax Code of the Russian Federation have 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 impairment of securities from professional participants The securities market carrying out dealerships.
26. Revenues in the form of funds and other property that are obtained by unitary enterprises from the property of the property of this enterprise or the authority authorized by him.
Unitary organizations have revenues in the form of property and other property obtained from the owner of the property of this organization or an authorized body relate to income not taken into account when determining the tax base.
In the information letter of the Presidium of the Russian Federation of December 22, 2005 No. 98 "An overview of the practice of permission of arbitration cases of cases related to the application of certain provisions of chapter 25 of the Tax Code of the Russian Federation" is given an example of a case in which the provision of sub-clause 26 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation The court indicated that the liberation of the municipal unitary enterprise The owner of his property from the board for the use of the room entails the savings by the enterprise. In this case, it can be equal to obtaining them and is not subject to accounting when determining the tax base for income tax.
27. Revenues in the form of property (including cash) and (or) property rights that are obtained by a religious organization in connection with the commission of religious rites and ceremonies and from the realization of religious literature and religious items.
Subparagraph 27 of paragraph 1 of Article 251 of the Tax Code affects the category of taxpayers - religious organizations.
In accordance with Article 117 of the Civil Code of the Russian Federation, religious organizations recognize the voluntary association of citizens, in accordance with the procedure established on the basis of their communion of their interests to meet spiritual or other intangible needs. These organizations are not commercial organizations. But at the same time, they are entitled to carry out entrepreneurial activities if this activity is aimed at achieving the goals for which they are created, and the corresponding objectives. Participants (members) of religious organizations do not retain the rights to the property transferred by these organizations to the property, including membership fees. They are not responsible for the obligations of religious organizations in which they participate as their members, and these organizations are not responsible for the obligations of their members. Features of the legal status of religious organizations as participants in relations regulated by the GC are determined by law.
Thus, revenues received from the cultural activities and the implementation of religious and literature and literature and the funds received, property, regardless of the source of such receipts, religious organizations are not taken into account when determining the tax base.
28. Revenues in the form of amounts received by universal service operators, from a universal service reserve in accordance with the legislation of the Russian Federation in the field of communication.
In accordance with Article 57 of the Federal Law of July 7, 2003 No. 126-FZ "On Communications" to universal services:
services telephone communication using taxophones;
data transfer services and providing access to the Internet using collective access items.
The provision of universal services is carried out by operators of universal service, the selection of which is carried out according to the results of the competition or in order of appointment in each subject of the Russian Federation.
The versatile service reserve is formed to ensure reimbursement of universal service maintenance operators caused by the provision of universal communication services, a reserve of universal services is formed (Article 59 of Law No. 126-FZ).
The rules establish the procedure for the formation and consumption of the means of reserve of universal service are determined in accordance with the Decree of the Government of the Russian Federation of April 21, 2005 No. 243 "On approval of the rules for the formation and spending of the means of reserve of universal service".
29. Revenues! In the form of property, including cash, and (or) property rights that are received! Mortgage agent due to its statutory activities.
This subparagraph provides that revenues in the form of property, cash, and (or) property rights that are obtained by a mortgage agent, due to its authorized activities, are not included in the list of revenues taken into account when determining the tax base for income tax.
In accordance with Article 2 of the Federal Law of November 11, 2003 No. 152-FZ "On Mortgage securities»Mortgage agent - specialized commercial organization, the exceptional subject of activity of which is the acquisition of the rights of credit requirements (loans), secured mortgage, and mortgages and which is given the right to emissions with mortgage coating.
At the same time, property acquired (created) at the expense of these income is not subject to depreciation (subparagraph 7
clause 2 of Article 256 of the Tax Code of the Russian Federation).
30. Revenues in the form of property (works, services) obtained by medical organizations carrying out medical activities in the system of compulsory health insurance, from insurance organizations that implement mandatory medical insurance, due to a reserve for financing the preventive events used in the prescribed manner.
The list of incomes not taken into account in determining the tax base for income tax includes property (work, services), obtained by medical organizations carrying out medical activities, activities in the medical insurance system, from insurance organizations carrying out compulsory medical insurance, at the expense of financing reserve warning events.
31. Revenues in the form of income from investing funds pension savingsintended for the fundamental part of the cumulative part labor pensionobtained by organizations acting as strategists for mandatory 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 in determining the tax base for income tax includes income from investing pension savings funds intended to finance the funded part of the labor pension obtained by organizations acting as insurers for compulsory pension Insurance.
It is also found that the following costs are not taken into account when determining the tax base: -
expenses, including reward management company and a specialized depositary produced at the expense of organizations serving as insurers for compulsory pension insurance, when investing in funds for pension savings intended to finance the funded part of the labor pension (paragraph 48.2 of Article 270 of the Tax Code of the Russian Federation); -
amounts sent to organizations acting as insurers for compulsory pension insurance, to replenish the funds of pension savings designed to finance the accumulative part of the labor pension, and which are reflected in the pension accounts of the accumulative part of the labor pension (paragraph 48.3 of Article 270 of the Tax Code of the Russian Federation); -
in the form of funds of pension savings to finance the storage part of the labor pension transmitted 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, which act as an insurer on compulsory pension insurance (paragraph 48.4 of Article 270 of the NC) .
Non-state pension funds It is not entitled to recognize as expenses those expenses that are associated with income from investing pension savings, intended to finance the funded part of the labor pension provided for in paragraph 4 of Article 296 of the Tax Code of the Russian Federation.
32. Revenues in the form of capital investments in the form of inseparable improvements in leased property derived by the tenant.
After the end of the lease agreement, inseparable improvements are transferred to the Lessor and become its property. In order to tax accounting The cost of such inseparable improvements is not included in the landlord's revenues.
Note that such improvements are now recognized by the amortized property and are included in expenses through depreciation.
Depreciation is accrued 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 by the leaser for the landlord, amortized by the landlord in general;
capital investments, the cost of which is not reimbursed by the landlord, amortized by the tenant during the lease term, based on the amount of depreciation, calculated based on the useful life.
33. The incomes of shipowners received from the exploitation of vessels registered in the Russian international register of ships. For the purposes of this chapter, under the exploitation of vessels registered in the Russian International Register of Courts, it is understood that the use of such vessels for the transport of goods, passengers and their baggage and the provision of other services related to the implementation of the specified transportation are provided that the point of departure and (or) the destination is located for within the territory of the Russian Federation, as well as the delivery of such vessels for rent to provide such services.
In accordance with Article 33 of the Code of Commercial Warming of the Russian Federation of April 30, 1999 No. 81-ФЗ, the vessel is subject to registration in one of the listed registers of the courts of the Russian Federation.
The general principle of determining the price of any transaction for tax purposes is its compliance with the level of market prices. Clause 1 of Article 40 of the Tax Code of the Russian Federation found that if otherwise not provided for by the Tax Code of the Russian Federation, the price of goods (works, services) specified by the parties of the transaction is taken for tax purposes. Not yet proven the opposite, it is assumed that this price corresponds to the level of market prices. Regulations of Article 40 of the Tax Code of the Russian Federation, regulating the principles of determining the price of goods, works or services for tax purposes, are extremely important, since The legislator refers to them when establishing the rules for determining the taxable base on VAT (Article 154 of the Tax Code of the Russian Federation), excise tax (Article 187 of the Tax Code of the Russian Federation), the income tax (Article 250 of the Tax Code of the Russian Federation, 274 of the Tax Code of the Russian Federation, etc.).
In accordance with paragraph 4 of Article 40 of the Tax Code of the Russian Federation, the price of goods (work, services) is recognized by the price that has developed in the interaction of supply and supply in the market identical (and in their absence - uniform) goods (works, services) in comparable economic (commercial) conditions . The market of goods, works or services is recognized as the disposal of these goods (works, services), determined on the basis of the possibility of the buyer (seller) is real and without significant additional costs to purchase (implement) goods (work, service) at the closest to the buyer (seller) territory of the Russian Federation or outside the Russian Federation.
When determining the market price, ordinary when concluding transactions between non-dependent persons of the allowances for the price or discount are taken into account. In particular, discounts caused by:
- · Seasonal and other oscillations of consumer demand for goods;
- · Loss of quality goods or other consumer properties;
- · The expiration (approximation of the expiration date) of the shelf life or sale of goods;
- · Marketing policies, including when promoting new goods (works, services), which have no analogues, as well as when promoting goods (works, services) into new markets;
- · Implementation of experienced models and samples of goods in order to familiarize themselves with consumers.
Clause 8 of the Tax Code of the Russian Federation Article 40 specifically establishes that when determining market prices of goods, works or services are taken into account the transactions between non-interdependent persons. Transactions between interdependent persons can be taken into account only on condition that the interdependence of these individuals did not affect the results of such transactions.
In paragraph 11 of Article 40 of the Tax Code, it is also indicated that, in identifying and recognizing the market price of goods, work or services, official sources of information on market prices for goods, works or services and exchange quotations are used, information base of state and local government and information, information base. taxpayers provided to tax authorities.
In accordance with the requirements of paragraph 2 of Article 40 of the Tax Code of the Russian Federation, the tax authorities in the implementation of control over the completeness of tax calculation have the right to verify the correctness of the application of transaction prices only in the following cases:
- · Between interdependent persons;
- · By commodity exchange (barter) operations;
- · When performing foreign trade transactions;
- · With deviation of more than 20% in the direction of increasing or towards a decrease in the price level applied by the taxpayer for identical (homogeneous) goods (work, services) within a short period of time.
Tax authorities are endowed with the right to control the compliance of the transaction price of the level of market prices in order to verify the completeness of the calculation of taxes, but not fees (including customs). The concept of tax and collecting is established in Article 8 of the Tax Code of the Russian Federation.
In cases where the tax authorities, when making control, it is entitled to verify the correctness of the application of prices for transactions, it is necessary to dwell on the definition of the following concepts: interdependent individuals, trade (barter) operations, foreign trade transactions.
Transactions between interdependent persons:For tax purposes, according to article 20 of the Tax Code of the Russian Federation, interdependent persons are recognized individuals and (or) the organization, relations between which can influence the conditions or economic results of their activities or the activities of those represented by them, namely: one organization directly and (or) indirectly participates in another organization, and the total share of such participation is more than 20 percent . The share of indirect participation of one organization to another through the sequence of other organizations is determined as a work of the share of the direct participation of organizations of this sequence one in another.
At the same time, paragraph 2 of Article 20 of the Tax Code of the Russian Federation, it is specifically established that the Court may recognize persons with interdependent for tax purposes on other grounds not provided for by paragraph 1 of this article, if relations between these persons may affect the results of transactions for the sale of goods (works, services).
Example 1:Organization and owns 75% of the shares of the authorized capital of the organization B, which in turn owns 30% of the shares of the authorized capital of the organization V. In this case, the organization A and B, as well as B and B are interdependent in relation to each other, since the share of direct participation of the organization And in the authorized capital of the organization B is more than 20%, namely 75%, and the share of the direct participation of the organization B in the authorized capital of the organization at 30%. Organizations A and B are also interdependent, because The proportion of indirect participation of the Organization A in organizing at 22.5% (75 x 30/100). Thus, prices for transactions between organizations A and B; A and B, as well as B and B fall under the control of tax authorities.
Example 2:Organization and owns 10% of the shares of the authorized capital of the organization B, as well as 17% of the shares of the authorized capital of the organization B, which in turn owns 70% of the shares of the authorized capital of the organization B. Total share Participation (direct and indirect) organization A in the authorized capital of the organization B is 21.9% (10 + (17 x 70/100). Accordingly, organizations A and B, as well as B and B are interdependent persons.
Example 3:Organization and owned 16% of the shares of the authorized capital of the organization B, which in turn owns 12% of the shares of the authorized capital of the organization A. In this case, the organization A and B are not interdependent persons, because The total proportion of direct participation does not exceed 20%.
Barter transactions:Definitions of trade (barter) operations in tax legislation are not contained. Clause 1 of Article 11 of the Tax Code of the Russian Federation found that unless otherwise provided for by the Tax Code, the institutions, the concepts and terms of civil, family, and other branches of the Russian Federation, used in the Code, are applied in what they are used in these sectors of the law. The essence of commodity exchange (barter) operations is disclosed through the norms of civil law and, in particular, from the prescriptions regulating the procedure for implementing exchange agreements. According to the agreement, each of the parties undertakes to convey to the property of the other side one product in exchange for another (paragraph 1 of Article 567 of the Civil Code of the Russian Federation). At the same time, in accordance with Article 568 of the Civil Code of the Russian Federation, it is assumed, as a rule, the exchange of equivals and, accordingly, in civil law, in contrast to the tax, the price at me is not an essential condition for the transaction.
In this case, it seems very difficult to determine the degree of compliance of the price of the transaction level of market prices.
Foreign trade operations:Foreign trade transaction, based on the norms of Article 153 of the Civil Code of the Russian Federation, one can determine as actions of citizens and legal entities aimed at establishing, changing or termination of civil rights and obligations in the field of externally trade activities. According to Article 2 of the Law of the Russian Federation of 13.10.1995 "On State Regulation of Foreign Trade Activities" by foreign trade activities, entrepreneurial activities in the field of international exchange of goods, works, services, information, the results of intellectual activity, including exclusive rights on them (intellectual property).
Determination of prices of transactions by tax authorities:The actions of the tax authorities to verify the correctness of determining the price of the transaction in the event of a deviation of more than 20 percent aside as a reduction or in the direction of a decrease in the price level applied by the taxpayer for identical (homogeneous) goods (work, services) within a short period of time can lead to collisions, because tax legislation The procedure for determining the "short period of time" is not set.
Identical recognized goods that have the same characteristic features for them. In determining the identity of the goods, their physical characteristics, quality and reputation on the market, the country of origin and the manufacturer are taken into account. When determining the identity of goods, minor differences in their appearance may not be taken into account.
Uniform recognized goods that, without being identical, have similar characteristics and consist of similar components, which allows them to perform the same functions and be commercially interchangeable.
In determining the homogeneity of goods, in particular their quality, the availability of trademark, reputation in the market, the country of origin is taken into account.
Unfortunately, the legislator did not establish the criteria for determining the identity and homogeneity of work and services.
As follows from the norms of the Tax Code, when establishing a tax authority in the process of control over the correct establishment of the pricing of the transaction on the product X fact of deviations by more than 20% in the direction of lowering the price level applied by the taxpayer for identical (homogeneous) product Y, the price of the product X, For tax purposes, subject to recalculation based on the price of Y.
In the event of an establishment in the course of control over the correctness of the pricing of the transaction by the product x of the fact of deviations by more than 20% in the direction of increasing prices from the price of the taxpayer used by identical (homogeneous) product Y, tax authority It will not be revised by the price of the goods x for tax purposes (because it is higher than the price of the product Y, and the use of the price of the product as the price of a trade in the product of the product y will lead to a decrease in the taxable base and, accordingly, will reduce tax revenues to the budget) . However, the established fact gives grounds to the tax authority to revise in order to tax the price of goods y based on the price of the product X, because If the assertion is true that the product y is identical (homogeneous) relative to the product X, then the truth does not contradict and reverse judgment (that is, the product X also acts as an identical (homogeneous) in relation to the product y).
It should be noted that the tax authority can apply control over the correctness of the price determination in the cases provided for in paragraph 2 of article 40 not only to the seller of goods (works, services), but also in relation to the buyer.
In the case of applied by the Buyer for the purpose of taxation of the lowered or overestimated price compared with the existing level of market prices for the relevant goods (work, service), the tax authority may challenge the correctness of the taxable base on property tax (by goods), as well as income tax The subsequent alienation of previously acquired goods.
In cases where the tax authority determines the fact of the use of the transaction of the price of goods (works, services) deviating (in one direction or another) by more than 20% of the market price of identical (homogeneous) goods, works or services, in accordance with paragraph 3 Articles 40 of the Tax Code of the Russian Federation, the tax authority has the right to endure a motivated decision on the detachment of not only tax, but also the penalties calculated in such a way as if the results of these transactions were appreciated based on market prices.
We emphasize that to prove the inconsistency of the market prices applied in the price transaction should the tax authority.
The Tax Code of the Russian Federation does not provide for the obligation of the taxpayer to independently recalculate the price of a transaction for tax purposes, in case it is established by the fact of its deviation by 20% in one direction or another from the market price applied by the taxpayer for identical (homogeneous) goods (work, services) .
However, in order to avoid the use of penny, when checking the tax authority compliance with the price of a market price level for identical (homogeneous) products (works, services), a taxpayer, in our opinion, can independently produce for tax purposes appropriate adjustment of the transaction price to the level of market prices, If he is not sure that he will be able to convince the tax authority in the correctness of the transaction price formation.
Distortion of the taxable database by counterparties on the transaction If the tax authority establishes the inconsistency of the transaction price of market prices is presented in Table 1.
Table 1
Distortion of the taxable base in case of inconsistency of the transaction price level of market prices
|
Subject of the transaction |
Price transaction compared to level of market prices |
|
|
Overestimated by more than 20% |
Understated by more than 20% |
|
|
Seller |
Income tax (in case of influence of the amount of revenue from the implementation of the amount of costs that reduce taxable profits (the cost of forming a reserve for doubtful debts, the costs of forming a reserve for warranty repair and warranty service, advertising costs). |
Profit Tax, VAT, Sales Tax, Autodorogue Tax |
|
Buyer |
Income tax (upon subsequent implementation (resale)) |
Property tax |
tax Price Transaction
Thus, the fact of the use of goods transactions (works, services) deviating by more than 20% in the direction of increasing or towards decreasing from the price level applied by the taxpayer for identical (homogeneous) goods (work, services), in case of establishing it The tax authority creates the application of tax sanctions (maintaining the underponing amount of tax and penalties) to all participants of the transaction.
It should be noted that it is only possible to talk about the distortion of a taxable base in the case of the tax authority of the inconsistency of the transaction price of market prices by more than 20%.
As can be seen from the table, when the tax authority is established by more than 20% of the transaction price compared with the level of market prices, the seller has a distortion of a taxable base for the calculation of the profit in case of the influence of revenue from the sale of goods (works, services) on the formation of the cost of expenses, reducing taxable profits (costs of forming a reserve for doubtful debts, costs of forming a reserve for warranty repair and warranty service, advertising costs). The buyer in this situation upon subsequent implementation (resale) of goods is also distorted by taxable profits due to unreasonable overestimation, for tax purposes, the purchase price of goods.
When establishing the tax authorities of an understatement of more than 20% of the transaction price compared with the level of market prices, the seller has a distortion of income tax, VAT, sales tax and autodorogue tax tax. The buyer in this case arises an understatement of the taxable base for property tax due to inconsistency of the price of the purchase of goods by the market price on them.
Specifications for market prices:According to paragraph 9 of Article 40 of the Tax Code of the Russian Federation in determining the market prices of goods, work or services, information on prisoners at the time of the implementation of this product, work or services of transactions with identical (homogeneous) goods, works or services in comparable conditions are taken into account.
In accordance with Article 39 of the Tax Code of the Russian Federation for the purposes of taxation of the sale of goods, works or services by the Organization or individual entrepreneur It is recognized, respectively, the transfer on a reimbursable basis (including the exchange of goods, works or services) of ownership of goods, the results of the work performed by one person to another person, and in cases provided for by the Tax Code of the Russian Federation, the transfer of ownership of goods, the results of the work performed One person for another person, the provision of services in one face to another person is free of charge.
In determining the market price, the factor of comparability of conditions, in particular, according to the requirements of paragraph 9 of article 40 of the Tax Code of the Russian Federation, such conditions of transactions are taken into account as the amount (volume) of goods supplied (for example, the volume of the commodity party), the deadlines for the fulfillment of obligations, the terms of payments, usually Applied in transactions of this species, as well as other reasonable conditions that can affect prices. At the same time, the conditions of transactions in the identical market (and in the absence of - uniform) goods, works or services are recognized as comparable, if the difference between such conditions or does not significantly affect the price of such goods, works or services, or can be taken into account by amendments.
If the seller's organization, for tax purposes, determines the moment of transition of the right of ownership (and, accordingly, the moment of implementation) on payment, then in inflation, this business entity in the case of a significant temporary gap between the signing of the contract (and according to the coordination of the transaction price) and the fact of payment for goods increases Risk of inconsistency in the transaction price used for tax purposes The level of market prices established by the date of recognition of the implementation. However, the prescriptions of the Tax Code of the Russian Federation in this case are a declarative character, because There is no mechanism for adjusting the market price of the inflation component in order to ensure comparable conditions, as a result of which the price of the transaction is obviously inconsistently in the level of market price.
Example 4:According to the contract of delivery of 01.01.2002, the organization can make and sell the organization B equipment until September 25, 2002. Payment, according to the terms of the transaction, is carried out after the supply of equipment. The transaction price amounted to 1,200 thousand rubles. (including VAT - 20%), which at the date of signing the contract corresponded to the level of the market price for this equipment. The moment of transfer of ownership of the thing is set on payment.
In October 2002, the organization B redeemed its accounts debt For the organization and equipment. When checking the organization a tax inspectorate It established that in October, which is the reporting period, in which the implementation of the transaction with the organization B is recognized for tax purposes, the organization A has sold the same equipment to another economic entity for 1,600 thousand rubles. (including VAT - 20%), i.e. Deviation of the transaction price from the market price of an identical product was 25% ((1,600 - 1,200) x 100: 1 600). In our opinion, the organization A should substantiate the price of a transaction with the organization b in the amount of 1,200 thousand rubles. The provision of discounts, for example, caused by marketing policies when promoting goods to a new market.
Chapter 14.3 of the Tax Code of the Russian Federation are used in the following articles:-
General provisions about taxation in transactions between interdependent persons
2. Definition In order to tax revenues (profits, revenues) of interdependent persons who are the parties of the transaction, which could be obtained by these persons, but were not received due to the differences in commercial and (or) financial conditions of the specified transaction from commercial and (or) financial conditions The same transaction, the parties to which are persons not recognized by interdependent, is made by the federal authority of the executive authority, authorized to control and oversight in the field of taxes and fees, with the use of methods established by Chapter 14.3 of the Tax Code of the Russian Federation.
- Features of price recognition markets for tax purposes when applying regulated prices
2. In case of establishing the minimum limit price, such a price is not taken into account when determining the market price, if the minimum value of the market price interval defined in accordance with Chapter 14.3 of the Tax Code of the Russian Federation is excluding the specified minimum limit price, exceeds this minimum limit price. Otherwise, the interval of market prices is recognized by the interval, the minimum value of which is equal to this minimum marginal price, and the maximum value is taken equal to its maximum value defined in accordance with Chapter 14.3 of the Tax Code of the Russian Federation.
- Information used in comparison of the terms of transactions between interdependent persons with the terms of transactions between non-interdependent persons
4) other information used in accordance with Chapter 14.3 of the Tax Code of the Russian Federation.
- Controlled transactions
9. For the purposes of this article, the amount of revenues for transactions for the calendar year is determined by adding the amounts of income received by such transactions with one person (interdependent persons) for the calendar year, taking into account the procedure for recognizing the income established by Chapter 25 of the Tax Code of the Russian Federation. In determining the amount of income on transactions, the federal executive authority authorized to control and oversight in the field of taxes and fees, for the purposes of this article, is entitled to check the compliance of the amounts of income received by market level transactions, taking into account the provisions of Chapter 14.2 and Chapter 14.3 of the Tax Code of the Russian Federation.
- Preparation and submission of documentation for purposes tax control
2) In the case of using the taxpayer of the methods provided for by Chapter 14.3 of the Tax Code of the Russian Federation, the following information about the methods used: features of determining the tax base for derivative operations financial instruments
6. In determining the tax base for operations with derivative financial instruments, the provisions of Chapter 14.3 of the Tax Code of the Russian Federation can be applied only in cases provided for by this chapter.
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Article 105.7. General provisions on the methods used in determining for income tax purposes (profits, revenues) in transactions whose parties are interdependent
1. When carrying out tax controls due to transactions between interdependent persons (including the comparison of commercial and (or) financial conditions of the analyzed transaction and its results with commercial and (or) financial Terms comparable transactions and their results) The federal executive authority authorized to control and oversight in the field of taxes and fees uses in the manner prescribed by this Head, the following methods:
1) method of comparable market prices;
2) the price method of subsequent implementation;
3) the cost method;
4) the method of comparable profitability;
5) Profit distribution method.
2. It is allowed to use a combination of two or more methods.
3. The method of comparable market prices is a priority to determine for the purposes of taxation of compliance of the prices applied in transactions, market prices, unless otherwise provided by paragraph 2 of Article 105.10 of the Code. The use of other methods specified in subparagraphs 2 to 5 of clause 1 is allowed if the use of the method of comparable market prices is impossible or if its use does not allow to reasonably conclude on the compliance or inconsistency of the prices applied in transactions, 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, the market price in the manner established by Article 105.9 of the Code, if there is at least one comparable market for goods (works, services), which are identical (in their absence - homogeneous) goods (work, services), as well as in the presence of sufficient information about such a transaction.
At the same time, 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, it is possible to use the transaction as a compaable transaction, performed by the specified taxpayer with those who are not interdependent with the specified taxpayer, provided that such a transaction is comparable to Analyzable transaction.
4. In the absence of publicly available prices in comparable transactions with identical (homogeneous) goods (works, services), for the purposes of determining the completeness of calculation and tax payments due to transactions between interdependent persons, one of the methods specified in subparagraphs 2 - 5 of paragraph 1 of the article.
Unless otherwise provided by this chapter, the method is used that, taking into account the actual circumstances and conditions of the controlled transaction, allows the most reasonable to conclude on the compliance or inconsistency of the price applied in the transaction, market prices.
5. The methods specified in subparagraphs 2 - 5 of clause 1 can also be used in determining for the purposes of taxation of income (profits, revenues) for a group of homogeneous transactions whose parties are interdependent faces.
Uniform transactions for the purpose of chapter 14.2 of the Code, this chapter and chapters 14.4 - 14.6 of the Code, the transaction is recognized, the subject of which may be identical (homogeneous) goods (works, services) and which are committed in comparable commercial and (or) financial conditions.
6. When choosing a method used in determining for income tax purposes (profits, revenues) in transactions, the parties of which are interdependent persons, completeness and reliability of the source data, as well as the validity of the adjustments carried out in order to ensure comparability of the compared transactions with the analyzed transaction .
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) stock prices, as well as data of information pricing agencies on prices (price intervals) for identical (homogeneous ) Goods (works, services) in the relevant markets of these goods (works, services). The use of information specified in this paragraph of information on market prices in order to apply the methods provided for in paragraph 1 of the article is allowed to ensure comparability of transactions, which are contained in these sources of information, with the analyzed transaction.
8. For the purpose of applying the methods specified in subparagraphs 2 and 3 of paragraph 1 of the article, the data of accounting (financial) reporting, on the basis of which the cost interval is calculated, should be given to a comparable view that ensures non-essential of the influence of deviations in accounting of costs for profitability indicators and the profitability interval calculated in accordance with the methods specified in subparagraphs 2 and 3 of paragraph 1 of the article.
If it is impossible to ensure comparability of data of accounting (financial) reporting for calculating the profitability interval and determination for income tax purposes (profits, revenues) in transactions, the parties of which are interdependent persons, the methods specified in subparagraphs 4 and 5 of paragraph 1 of the article are used.
9. In the event that the methods specified in paragraph 1 of the article do not allow to determine whether the price of the goods (work, services) applied in a one-time transaction, the market price, the price applied in such a transaction, the market price can be determined on from the market value of the subject of the transaction set as a result independent evaluation In accordance with the legislation of the Russian Federation or foreign states On appraisal activities.
At the same time, a transaction is understood under a one-time transaction for this article, economic essence which differs from the main activity of the organization and which is carried out on a single basis.
10. The methods listed in subparagraphs 4 and 5 of paragraph 1 of the article can be applied without directly calculating the values \u200b\u200bof market prices. When using these methods, the federal executive body authorized to control and oversight in the field of taxes and fees, compares the financial indicators (results) of the analyzed transaction (group of homogeneous analyzed transactions) with profitability interval (calculated on the basis of the profitability interval by financial indicators) on comparable transactions, Based on what makes the amount of income amount (profits, revenues), which would be obtained in the case of the parties to this transaction were persons not recognized by interdependent.
11. The court may take into account other circumstances that are important to determine the compliance of the price applied in the transaction, the market price, without restrictions provided for by Chapter 14.2 of the Code and this chapter.
12. Taxpayers at the conclusion of transactions are not required to be guided by the methods specified in paragraph 1 of the article, to substantiate their pricing policies for the purposes not provided for by the Code.
S.V. Razgulin, Valid State Counselor of the Russian Federation 3
In chapter 25 of the Tax Code, there is no closed list of costs that can be taken into account when calculating the tax base. The taxpayer independently decides to attribute to expenses of certain costs that are not directly named in Tax Code. The criteria for recognizing costs is devoted to an interview with an expert.
- What is needed in order for payments taken into account in the costs?
There is an important circumstance, which in practice is often forgotten. The taxpayer expenses should not be carried out in violation of legislation. I will give a few examples.
Article 131 of the Labor Code of the Russian Federation found that the share of salary paid in a non-monetary form cannot exceed 20% of the accrued monthly salary. Payment in the form of payments wages in kind of excess Labor Code 20% of restrictions contradict legislation (a letter of the Ministry of Finance of Russia of 05.11.2009 No. 03-03-05 / 200).
Compensation paid to employees instead of the actual provision of annual paid leave in 28 calendar days, labor legislation is not provided. Consequently, these payments cannot be attributed to the costs that reduce the tax base for income tax (Decision of the Presidium of the Wheel of the Russian Federation of 23.11.2010 No. 10411/10).
Getting favorable judicial decision can not be considered as a subject of contract paid provision Services. The condition for the payment of remuneration, depending on the very fact of adoption in favor of the Customer, the court's positive court violates the basics of the constitutional system and the public law enforcement, the principles of independence and independence of the judiciary, which cannot be the subject of private regulatory regulation (Resolution of the Constitutional Court of the Russian Federation of January 23, 2007 № 1-P). The tax authority may detach the income tax in relation to the legal services paid under the Treaty for the provision of legal services "Success Fees" (Resolution of the AS of the Volga District of January 23, 2015 No. F06-19062 / 2013).
The cumulative amount of remuneration to the seller for the purchase of a certain number of food products, as well as a fee for their promotion, the provision of logistics and other services should not be more than 5% of the prices of acquired food products (Article 9 of the Federal Law of December 28, 2009 No. 381-FZ "On Fundamentals state regulation trade activities in the Russian Federation ").
Payment by suppliers of food products in favor of the trading network of other types of remuneration is not allowed. Payment of rewards in a larger amount, payment of other actions as part of the supply contract in the expenses of the supplier for tax purposes is not taken into account (the letter of the Ministry of Finance of Russia dated 19.02.2010 No. 03-03-06 / 1/85).
In accordance with subparagraph 1 of paragraph 1 of Article 16 of the Federal Law of 02.23.2013 No. 15-FZ "On the protection of citizens' health from the impact of the surrounding tobacco smoke and the consequences of tobacco consumption" it is prohibited to use discounts from the price of tobacco products by any means, including through coupon edition and coupons. Prizes (discounts), the provision of which is contrary to the law, are not taken into account in expenditures (the letter of the Ministry of Finance of Russia of January 15, 2016 No. 03-03-06 / 1/831).
- But there is a judicial practice, according to which non-compliance with the requirements of other branches of legislation does not affect the accounting order of expenses ...
Indeed, in paragraph 11 of the Decisions of the Plenum of the Whatever of the Russian Federation of 05/30/2014 No. 33, it is said that non-fulfillment of the taxpayer in the implementation of the economic activities of certain prescriptions established both publicly legal and civil laws entails unfavorable for it tax consequences Only in the event that this is directly provided by the provisions of part of the second Tax Code of the Russian Federation.
But practice is not in all cases homogeneous. Part of the above examples is just reflected in court decisions.
- Based on what provisions of the Tax Code of the Russian Federation the tax authority may refuse to recognize costs in non-compliance with the requirements provided for by industry legislation?
The prohibitions established by the legislation are mandatory for tax purposes and do not require duplication by the norms of the Tax Code of the Russian Federation (the letter of the Ministry of Finance of Russia dated March 24, 2010 No. 03-03-05 / 59).
Agradiya that, at least, it is strange to recognize for the purposes of taxation the costs of activities that is an offense and entails responsibility.
The tax authority may justify the position of the misunderstanding of the costs of the fact that they are confirmed by documents issued not in accordance with the legislation.
It is possible that non-treatment in the necessary cases of licenses, other permits or coordination; Failure to register the contract, etc., it should not always entail the consequences in the form of a ban on a reduction in the tax base.
- What are the conditions for the cost of expense costs provided for by the Tax Code of the Russian Federation?
Rationalthiness and documentary confirmation (paragraph 1 of Article 252 of the Tax Code of the Russian Federation).
The main criterion of validity is the expenditure of expenses in activities aimed at obtaining income of the person who carries these expenses.
The validity of expenses cannot be assessed from the point of view of their feasibility, rationality, efficiency, the result obtained (Definition 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 conclusions that any consumption is expected to be economically justified. The burden of proving the unreasonableness of the taxpayer's expenses is assigned to the tax authorities.
The tax authority or the court when analyzing the payment will establish a relationship with activities aimed at extracting income.
- What expenses can be taken into account in taxation?
The Tax Code directly relates some costs. In relation to such costs, the tax authority in checks seeks to use the concept of violation by the taxpayer of 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 purpose of the operation is the tax savings).
On the taxpayer, the obligation to prove the validity of expenses in their explicit incoming the size of similar costs under normal conditions (definition of the Armed Forces of the Russian Federation of 20.02.2018 No. 305-kg17-15790). In many ways, the adoption of the final decision in these cases is made dependent on the subjective assessment by the court of presented evidence.
- What expenses are not recognized by Chapter 25 of the Tax Code of the Russian Federation?
We are talking about the expenses listed in Article 270 of the Tax Code of the Russian Federation. These include payments wearing gratuitous character: material aid, one-time allowance to retire labor veterans. It can be recommended to the taxpayer in the formulation of the payment conditions, avoid using phrases that are found in Article 270 of the Tax Code of the Russian Federation.
Some payments will allow adherence to expenses additional conditions. For example, consolidating in labor or collective contracts of expenses in the form of free or preferential nutrition of workers, paying for employees to the place of work and back do such expenses reasonable.
- Or maybe the situation when the cost of expenses is allowed by industry legislation, and they are not taken into account for tax purposes?
Such examples are found. Subparagraph 7 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation with other expenses related to production and implementation, calls the costs of ensuring the normal working conditions provided for by law.
Approved on the basis of the Labor Code of the Russian Federation by the Order of the Ministry of Health and Social Development of Russia dated 01.03.2012 No. 181n "Typical List annually implemented by the employer of measures to improve the conditions and protection of labor and the reduction of professional risk levels" provides for events aimed at the development of physical culture and sports in labor collectives.
Despite this, the expenses of organizations for the payment of employees in sports sections, circles or clubs cannot be taken into account when determining the tax base, since a direct ban is established by paragraph 29 of Article 270 of the Tax Code of the Russian Federation (a letter of the Ministry of Finance of Russia of 10/13/2014 No. 03-03-06 / 1/52376).
For tax purposes, the amount of expenses may be organized. Compensation for the use of personal cars and motorcycles in official travels, which established by the Decree of the Government of the Russian Federation of 08.02.2002 No. 92, revenues will not reduce.
Another situation with expenditure on fuel and lubricants. These costs are reflected 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 implementation (subparagraph 11 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation - the cost of maintenance of service transport). The rate of consumption of fuels and lubricants on road transport, entered into force by the order of the Ministry of Transport of Russia dated March 14, 2008 No. AM-23-P, under taxation is not compulsory. In other words, the costs of fuel and lubricants are taken into account in the actual amount (the letter of the Ministry of Finance of Russia of June 22, 2010 No. 03-03-06 / 4/61).
- What does the documentary confirmation of expenses mean?
This means the availability of documents compiled in accordance with the legislation. Moreover, the documents that are provided for for registration of the appropriate consumption. The use of other documents can only indirectly confirm the flow rate. So, in relation to expenses for payment for tickets for the passage acquired in a defunct form (electronic ticket), the acquittal documents are:
- for the railway ticket - a control coupon of the electronic travel document (ticket) (extract from the automated system of passenger traffic management on rail transport), obtained in in electronic format on the information and telecommunications network;
- for ticket - formed automated information system Air Transport Registration Route / receipt of an electronic document (airline ticket) on paper, which contains the cost of the flight, boarding pass, confirming the reporting person to the route indicated in the electronic flight. In the absence of landing coupons, the service can be confirmed by a certificate of air carrier (the letter of the Ministry of Finance of Russia of December 18, 2017 No. 03-03-RZ / 84409).
- Are the expenses on the transaction take into account if the contract between the parties is not? Payment is made on the invoice.
Yes, the practice of joining contractual relations without drawing up a contract as a separate document exists. The contract is not a primary document.
But it is necessary to take into account the provisions of the Civil Code of the Russian Federation that require a mandatory conclusion of the contract. Such responsibilities are established for the sale of real estate, lease, loan, insurance and a number of other transactions. Failure to comply with the condition of the written form of the contract can entail recognition of the transaction invalid.
Accounting of expenses does not prevent the signing of the contract after the work in the implementation of the provisions in the contract on the application of the contract to the relations of the parties arising before its conclusion. Of course, provided that the primary documents are decorated properly (a letter from the Federal Tax Service of Russia of October 10, 2016 No. SD-4-3 / 18888).
Please note that sometimes directly of the Tax Code of the Russian Federation prescribes the presence of a specific document as a confirmation consumption. For example, an agreement with educational institutions - for expenses for training employees (a letter of the Ministry of Finance of Russia of 09.11.2012 No. 03-03-06 / 2/121).
When purchasing services (training, advertising), property rights through the Internet, a written agreement may not be concluded, but to be issued in electronic form by making the standard conditions set out on the artist's website. Costs will confirm payment documents, printed and certified electronic correspondence page, indicating the order and receipt of the service, screenshots (as indirect cost confirmation).
- How to confirm the provision of services if there is no act?
For tax purposes, drawing up a bilateral act confirming the fact of the provision of services is not mandatory, unless otherwise provided by law. The procedure established by Chapter 25 of the Russian Federation The procedure for recognizing income - costs under the accrual method provides for determining the date of receipt of income (expenditures) in situations where the acts are missing.
If the legislation does not require the compilation of acts and the condition for compiling acts of services provided in the contract, the remuneration under the contract will be taken into account in income and expenses in accordance with Articles 271, 272 of the Tax Code and accounting policies for tax purposes. Payment documents can confirm the costs.
- Can acknowledge the cost of a document compiled in electronic form?
Sure. The primary accounting document can be compiled in the form of an electronic document signed by an electronic signature.
Electronic document signed by any kind electronic signature, confirms the costs if the legislation does not provide for the preparation of a document on paper (the letter of the Ministry of Finance of Russia of 05.05.2015 No. 07-01-06 / 25701). In order to confirm costs, the authenticity of the electronic primary document, signed by a simple and (or) strengthened electronic signature, must be provided with the presence in the relevant agreement between the counterparties of the procedure for checking electronic signatures (a letter of the Federal Tax Service of Russia dated 19.05.2016 No. SD-4-3 / 8904) .
To recognize the costs confirmed by the electronic document applied general order: The date of recognition will be the date of formation of the document (the letter of the Ministry of Finance of Russia dated 13.02.2017 No. 03-03-06 / 1/7663).
When defeating the taxpayer, documents compiled in electronic form According to the established FTS formats, they are sent to the Tax authority.
If the documents are compiled in electronic form not on established formats, then at the request of the tax authority, they are presented on paper in the form of a certified copy with a mark on the signing of a document by a qualified electronic signature (the letter of the Ministry of Finance of Russia dated January 11, 2012 No. 03-02-07 / 1 one).
The practice of using electronic formats will expand. The FNS is empowered by the authority to approve the formats of the documents submitted from taxpayers submitted to the tax authority in electronic form on TKS.
- What information should contain the primary document?
Each fact of the economic life of the organization is issued by the primary document. Based on the grouped primary accounting documents, tax accounting data is formed.
For some exceptions, the form of primary accounting documents is determined by the taxpayer independently. In paragraph 2 of Article 9 of the Federal Law of December 6, 2011 No. 402-FZ "On Accounting" as a mandatory details of the primary accounting document are indicated:
- title of the document;
- document drawing date;
- name economic Subjectmaking a document;
- the content of the fact of economic life;
- the magnitude of the natural and (or) monetary measurement of the fact of economic life with the indication of the units of measurement;
- the name of the position of the person (persons) committed (committed) the transaction, operation and responsible (responsible) for the correctness of its design, or the name of the position of the person (persons) responsible (responsible) for the correctness of the execution of the sighted event;
- signatures of these persons indicating their surnames and initials or other details necessary to identify these individuals.
With proper filling in the primary accounting document of all mandatory details, the lack of printing (seals) of the organization (organizations) is not a basis for refusal to recognize the relevant costs in profit tax expenses (a letter of the Federal Tax Service of Russia dated January 13, 2016 No. SD-4 3 / [Email Protected]).
- And if errors are allowed when drawing up documents?
In the primary accounting document, corrections are allowed unless otherwise established by federal laws or regulatory legal acts of state regulation authorities of accounting.
If the mistakes made in primary documents are insignificant, then costs can be taken into account and without patching. Unnecessary errors that do not interfere with identification:
- parties to the transaction, subject matter of the transaction (names of goods, works, services, property rights), transaction prices. This is stated in the letters of the Ministry of Finance of Russia of 28.08.2014 No. 03-03-10 / 43034, from 04.02.2015 No. 03-03-10 / 4547;
- persons who signed commodity checks (definition of the Armed Forces of the Russian Federation of 09.03.2016 No. 302-kg16-450).
The federal law "On Accounting" does not provide for the replacement of the initial accounting document previously adopted by the new document.
To correct the FNS errors, considers it possible to compile a new instance of the document, which indicates the number and date of the document before entering fixes, as well as the number and date of correction (letter from 05.03.2018 No. SD-4-3 / [Email Protected]). That is, there will be an initial document and corrections (correct text of the document).
- If the original documents are transferred to the taxpayer, suppose to the court, what to confirm the costs?
Copy of these documents. The taxpayer himself may assure a copy (the letter of the Ministry of Finance of Russia dated January 20, 2011 No. 03-03-06 / 1/15). At the copy that is stored at the taxpayer, it is possible to specify the location of the original document.
By the way, a similar method - the manufacture of a certified copy can be recommended when there is a possibility that over time indicators reflected on the original document, say, cash checkwill become unreadable. In this case, the original and a copy of such a document is stored together.
- How to do if the product or service is purchased from a foreign counterparty and documents are drawn up in a foreign language?
Because in Russia accounting is conducted in Russian, then primary accounting documentsCompiled in a foreign language must have a translation into Russian.
Thus, the primary documents drawn up in a foreign language and received from a foreign counterparty, or documents confirming, in particular, staying in a foreign business trip, compiled in a foreign language, should be translated into Russian. Translation can be performed by the taxpayer employees or a professional translator. There is enough translation of only those indicators that affect the taxation (the letter of the Ministry of Finance of Russia of September 14, 2009 No. 03-03-05 / 170). If we are talking about a typical form, then the translation can be performed once, and the subsequent translation of only changing indicators is carried out (the letter of the Ministry of Finance of Russia of 03.11.2009 No. 03-03-06 / 1/725).
- What features are related to the storage of documents confirming the cost accounting?
The total shelf life 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 moment the tax period is completed, in which the cost accounting is completed. For example, for depreciation costs. Storage primary documentsreflecting the formation initial cost Amortized property is calculated from the moment the depreciation is completed in tax accounting.
There are in the NK RF special deadlines Storage. According to paragraph 4 of Article 283 of the Tax Code of the Russian Federation, when transferring losses to the future, the taxpayer is obliged to keep documents confirming the amount of loss incurred, during the entire period when it reduces the tax base of the current tax period (the 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 documents accounting Policy, Economic Subject Standards, other documents related to the organization and accounting of accounting, including funds providing reproduction of electronic documents, as well as an electronic signature authentication, to store at least 5 years after the year, in which they were used to compile accounting (financial ) Reporting for the last time.
In accordance with the law on archival business, there are its documents for storing documents. Order of the Ministry of Culture of Russia of August 25, 2010 No. 558 "On Approval" List of Model Management Archive Documents formed in the Process government agencies, local governments and organizations, indicating storage terms "" found that, for example, documents on depreciation of fixed assets are kept constantly.
