The procedure for calculations previously issued an advance is proportionally. The correctness of the sum of the amount of the advance payment of the work performed is correct. In the past periods are possible disputes

Situation Description: JSC is the customer under the construction contract. The contract does not have conditions about the phased delivery of work. The customer lists the prepayment to the contractor.

Question 1: Based on what documents can be taken to deduct VAT from the advances of the issued?

Answer: With respect to documents that are the basis for the use of deductions to advances, it is necessary to note the following.

In accordance with paragraph 12 of Art. 171 of the Tax Code of the Russian Federation deducts from the taxpayer, which listed the amount of partial payment on the account of the upcoming work is subject to the amount of tax filed by the seller of these works.

According to paragraph 9 of Art. 172 Tax Code of the Russian Federation Data deductions amounts of tax are made on the basis of invoices issued by sellers when receiving partial payment, documents confirming the actual transfer amounts of partial payment on the account of the upcoming performance, with a contract providing for the transfer of these amounts.

Consequently, the taxpayer has the right to apply the tax deduction on VAT for the listed Contractor Advance in the presence of an appropriate invoice, confirmation of the enumeration of the advance and the conditions for the payment of an advance in the contract.

In the contract presented for analysis with one of the contractors as the terms of payment, the following is indicated (clause 3.1 of the Treaty):

"The customer provides a preliminary payment in the amount of 22 (twenty two) percentage of the price specified in paragraph 2.1 of this Agreement, by transferring money to the accounting account of the contractor within 15 banking days From the date of receipt of the account for an advance payment.

Contractor within 5 calendar days from the date of receipt of the prepayment provides the Customer invoice on advance payment The sample established by the legislation of the Russian Federation.

Repayment accounts receivable According to the Advance issued under this Agreement, it is made when setting an invoice for the work performed. "

Thus, the submitted agreement provides for the condition for the payment of an advance, the timing of such payment, as well as the obligation of the Contractor to set an invoice.

Consequently, VAT in advance can be accepted by the company to deduct after receiving the invoice for an advance and transfer the payment order to the Contractor.

Question 2.: What period and on the basis of which documents (the contractor exposes a monthly act on the form of KS-2 and the certificate in the form of the CS-3 on the actual work performed) the Customer's organization has the right to restore the amount of VAT adopted to deduct from prepayment when closing an advance payment?

Answer: Regarding the recovery period of VAT from the advances, it is necessary to note the following.

1. By virtue of paragraph 3 of Art. 170 Tax Code of the Russian Federation The tax amounts adopted by the taxpayer are subject to recovery in the case of transferring the buyer amounts of partial payment to the upcoming performance. Restoration of the amount of tax in the amount previously taken to deduct, is made by the Buyer tax period, in which tax amounts purchased work are subject to deduction in the manner prescribed by the Tax Code of the Russian Federation.

That is, the moment of the taxpayer the responsibility for the restoration of VAT on Advance coincides with the moment of the right to apply the tax deduction on acquired works.

The conditions and procedure for applying the VAT tax deduction on the purchased works are defined in paragraph 2 of Art. 171, paragraph 2 of Art. 172 Tax Code.

According to paragraph 1 of Art. 172 Tax Code of the Russian Federation The taxpayer is entitled to take to deduct VAT in the presence of an invoice, primary documents, as well as after taking into account purchased works.

It should be noted that specified in paragraph 1 of Art. 172 Tax Code The wording suggests that the basis for the use of tax deduction is including the acceptance of work on accounting. In this case, this rate can be interpreted as follows: it is not about the result of work, that is, not about the object being constructed, but on the value of the work itself, which is reflected monthly in accounting.

Based on this position, if the cost of construction work, presented to the Customer on CS-2 acts and certificates KS-3, is reflected in accounting on account 08 "Investments in fixed assets"This reflection can be considered under the observance of other conditions as a basis for applying a tax deduction (for example, monthly).

Thus, the courts proceed from the fact that since the cost of payment of work performed was taken into account in the account 08 " Capital investments", The circumstances associated with the acquisition of the results of the work performed by the taxpayer were confirmed by the taxpayer of the construction contract, acts of acceptance of work performed, certificates of the cost of work performed, invoices, then the taxpayer has the right to reimburse VAT until the end of the construction and adoption of the building to accounting As an object of fixed assets.

"Active tax law determines the right to use tax deductions the customer when purchasing work, including construction, acceptance and adoption of the results of work performed without reliability Togo, whether the steps of construction works are highlighted in the contract, whether the transition from the contractor to the customer of the risks of random death or damage to the results of work, as well as regardless of the fact or degree of completion of construction work "occurs.

Thus, in some cases, courts find a position support, according to which the fact that on the basis of acts on cS-2 form From the contractor to the customer do not pass the risks of random death or damage to the results of work, the value has no value for the purposes of applying tax deductions.

"... if the construction contract contract does not provide a phased acceptance of the work by the Customer, the acts in the form of the CS-2" Act on Acceptance of Completed Works ", signed by the Customer in relation to the work performed by the Contractor for the reporting month, are the basis for determining the cost of the work performed on which Calculations are made with a contractor, and according to the Agreement are not the acceptance of the results of the work by the Customer.

Considering the above, deduction of value-added tax on the work performed by contractors, it is possible on the basis of invoices issued by contractors in the manner prescribed by paragraph 3 of Art. 168 and art. 169 Code, and subject to the taxpayer adopted on the result of the indicated works in the amount defined in the contract. "

Thus, taking into account the position of the Ministry of Finance and the Tax Office, the use of tax deductions until the end of construction at the cost of construction work, not broken into steps is tax risk And with a high probability, it will require its protection in court.

2. As follows from the description of the situation, the Company builds the construction of an industrial facility by attracting contracting organizations to perform certain amounts of work.

The contract submitted for analysis with one of the contractors comprises a condition that the parties produce calculations for the work performed monthly on the basis of the CS-2 Act and the COP-3 certificate (clause 3.2 of the Agreement).

In addition, in paragraph 5.1.2 of the contract it is indicated that the work performed is handed over to the Customer on the basis of an act of cS-2 form, act in form ks-11, magazine in form ks-6a, the act of acceptance of the construction of the facility form ks-14. At the same time, the phased acceptance of the work of the contract is not provided.

In this regard, in our opinion, since the contract provides for the delivery and acceptance of work as a whole under the contract, and interim acts are compiled for calculations, presentation to the deduction of VAT (respectively, the restoration of VAT from the advances) is possible if the taxpayer has acts according to the forms of CS-11 and KS-14 confirming the end of the work and transfer of the result to the customer.

We believe that presentation to the deduction of VAT monthly only in connection with the monthly design of acts of the CS-2 form is a tax risk for the enterprise.

Thus, in our opinion, in order to avoid risks in the situation under consideration, the organization has the right to take to deduct VAT (and, consequently, it is obliged to restore VAT on advances in the amount of 22% of the cost of work under the contract) after the results of the work on acts KS-11. or KS-14..

Another approach (adoption by VAT to deduct monthly), taking into account the position of the Ministry of Finance and the Tax Office with a large share of the likelihood entail the situation in which the issue will have to be addressed in court.

3. On the issue of making monthly payments, the status of advance should be noted the following.

There is a point of view of specialists, according to which since the forms of COP-2 and KS-3 do not confirm the fact of acceptance of work, and in the contract it is determined that work is given on the acts of CS-11 and COP-14, the monthly payments should be considered advance, due to What the taxpayer has the right to accept to deduct VAT with monthly advance payments.

Koshkina T.Yu. On the frequency of VAT presentation to deduct // Construction: Accounting and taxation. 2009. N 4.

In our opinion, the given position is justified only if the contract for the contract monthly payments will be directly called advance (accordingly, the contractors are exhibited by advance invoices for monthly payments).

As for this situation, in the contract presented for analysis, it is clearly indicated that the advance payment is only a prepayment in the amount of 22% of the contractual value of work. Moreover, the contract contains the formulation according to which monthly calculations on the CS-2 act and the certificate of the COP-3 are made for actually performed works.

Thus, in our opinion, in the case under consideration, there are no conditions for the adoption of VAT sums on them to deduct as advance (there is no special condition in the contract, there are no advance invoices).

The order of the advance of advance payment in the contract formulation. Tax and accounting

Having considered the question, we came to the following conclusion:
The deduction of VAT from the advance in part of the unfavorable goods (light bulbs) is not provided. In a similar order, it is not provided and deducting when the goods are shipped at the expense of an advance received according to the accounts Nn 1 and 2.
Since the contract did not change and did not terminate, and the amounts of the advance were not returned to the Buyer, the deduction provided for by the Tax Code of the Russian Federation is also not provided.

The answer prepared:
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auditor, member of the RSA Zavyalov Kirill

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The material was prepared on the basis of an individual written consultation provided within the framework of the legal consulting service.

Our company is a contractor under a construction contract. The contract has an item in which it is indicated that the payment of the work performed is made by the Customer monthly on the basis of the COP-2 and COP-3 minus the advance payment in proportion to the value of the work performed and adopted for the payment of work for the reporting month (literally). Is it possible with such a wording It is assumed that the contract provides for a special order of advance payment of advances? I believe that this item regulates only payment procedure, and does not mean that in the same order it is necessary to read advances in accounting. Therefore, in my opinion, a contract has not been established any particular order of advance advances and, therefore, read an advance (in case its size more sum Work performed) We must at the full amount of the work performed. Are I? And more: from recently, we began to put the amount of the amount for the payment for the work performed not only in the accounts, but also in COP-3 (introduced additional graphs), after which our customer began to reflect in ho. Accounting an advance payment is precisely the amount that is given in such calculations, and not on the full amount of the work performed. This calculation contains the following indicators: Total (the amount of work performed), the amount of VAT, total taking into account VAT, warranty retention, advance payment, and taking place. Hence the question: whether to bring such a calculation in CS-3 the base for the advance of the advance is not in full, but only the amount given in this calculation. I believe that this information is provided only for making calculations.

Answer

From the question it is not clear regarding what the proportionality is determined. The volume of work performed in a total volume or in proportion to some other value.

In any case, the advances in accounts in accounting and for the purpose of taxation of VAT, it is always carried out according to the terms of the contract, and not depending on whether the amount of advance payment is exceeded and payable by the amount of existing advances.

That is, you are wrong.

Comment on the effect on the advances reflection reflection in the COP-3 we cannot, since the CS-3 is optional to use since 2013 and even more so, you make some changes that are not regulated anymore and, accordingly, explain how they should Apply a third party will not be able.

In any case, if the contract is prescribed advances in payment (calculations), it is also applied to reflect in accounting, and for the purposes of advancement of advances in order to determine the deduction of VAT.

The rationale for this position is given below in the materials of the Glavbuch system. .

Change number 2. The procedure for calculating the advance VAT

How to prepare: Check out in advance, in what order did you read and restore the VAT amounts from advances on long-term contracts.

From October 1, in the Tax Code of the Russian Federation, it will be said that the supplier has the right to declare the deduction of advance VAT from the amount that, according to the terms of the contract, is read on to pay for shipped goods (performed works or services). And the buyer should restore the same amount of tax (, the NK of the Russian Federation as amended).

Without errors, fill the invoice will help the "Talking invoice" service will help. All subscribers of the magazine "Glavbuch" can take advantage of them by activating the access code on Glavbukh.ru. Printed subscribers received it from the 14th number, and electronic - immediately after payment of the subscription.

This applies to the following situations. In contracts that provide for the long-term supply of goods or phased delivery, companies often fix such a condition. The buyer must list the prepayment, for example, in the amount of 70 percent of the price of the contract. But in the account of payment of the next delivery or stage of work, the seller reads not the whole prepayment, but only part. The remaining amount buyer must pay separately. The remaining advance seller will read on the account of payments for subsequent supply (stages of work).

From the current editorial office Tax Code The Russian Federation is not clear, as in such cases, declare deductions and restore the tax. From the explanations of the tax authorities, it can be concluded that the supplier has the right to take to deduct the advance VAT with the amount that is read into the payment of goods under the terms of the contract (). What tax amount is in the invoice for shipment of goods, it does not matter.

But at the same time, the buyer must restore the tax from all over the cost of goods reflected in the Supplier's invoice (). Judicial practice on this issue is ambiguous. Often, the judges support inspectors and believe that the terms of the contracts should not affect the calculation of the tax to recovery (). And sometimes they are expressed in favor of companies (). From October 1, special rules for this situation will appear in the Tax Code of the Russian Federation.

Seller deductions. Having received a prepayment, the supplier calculates NDSPO 18/118 or 10/110. Then, as the goods are shipped, the amount of tax from the advance can be taken to deduct (). From October 1, the supplier must take to deduct VAT only with the part of the advance, which has begun to pay for goods.

Restoring the buyer's tax. Buyer takes to deduct NDCS advance (). After the supplier boost the goods, the company must restore the tax. According to the new rules, the amount for recovery is calculated only with the part of the advance, which the supplier has begun to pay for goods ().

Example: how to calculate VAT from an advance, which is partially read on to the account of shipment

Thus, the seller, and the buyer under the new rules will have to be focused on the amount of an advance, which, according to the terms of the contract, should be credited to the account of the next delivery (stages of work). And if the contract says that the supplier does not read the advance payment on the next delivery, he is not entitled to declare the deduction of the advance VAT in the shipment of this batch of goods. At the same time, the buyer does not need to restore the deduction of the tax tax.

Professional reference system for lawyers in which you will find an answer to any, even the most difficult question.

Question: Society paid an advance of 317 rubles. Under the supply contract, the supplier. Subsequently, a contract concludes with a contractor for the transfer of rights and obligations under the supply contract.
Under the terms of the contract, the concessor must pay 317 rubles. society through the holding of mutual requirements (in terms of payment of the advance Contractor under the contract).
We ask you to explain whether the offset is possible on the payment of the advance payment under the contract, and register the procedure for taxing VAT.

In accordance with Art. 307 of the Civil Code of the Russian Federation due to the obligations of one person (debtor) is obliged to make a certain action in favor of another person (creditor): to transfer property, to work, pay money, etc. - either refrain from a certain action, and the lender has the right to demand the fulfillment of his duty from the debtor.
According to Art. 410 of the Civil Code of the Russian Federation Obligation is terminated in a fully or partially offset of the oncoming homogeneous requirement, the period of which has come or the period of which is not specified or determined by the moment of demand.
Based on the content of the specified norm, several basic conditions can be distinguished, allowing the test:
- Requirements must be counter. In other words, the lender must perform the debtor on another requirement, and vice versa;
- Requirements must be homogeneous. This means that the subject of consistent oncoming requirements should be homogeneous (identical). In particular, about the homogeneous nature of the counter-requirements is legitimate in the case when the subject of these requirements are cash;
— mandatory condition For testing is the onset of the execution of the requirements redeemed. The exception is made only for requirements, the deadline for the execution of which is not defined or determined by the moment of demand.
In the situation under consideration, the assignment of the right of the provider's claim under the contract of delivery contract is occurring.
At the same time, according to the terms of the contract for the transfer of rights and obligations under the supply contract at the time of signing this agreement, the initial side (organization) paid the supplier an advance payment in the amount of 317 rubles, including VAT - 48 rubles. For the transmitted rights under the contract, the new side (contractor) undertakes to pay the initial side of the provided price of the transmitted rights. By agreement of the parties, the price of the transferred rights is 317 rubles.
Also, the contract for the transfer of rights and obligations under the supply contract is provided that the obligation of the new part of the payment of the prices of the proposed rights to the initial side will be redeemed by a test for a homogeneous monetary requirement of the new side to the initial side of the payment of the advance payment in the amount of 317 rubles, including 48 rubles. Based on the contract.
From the analysis of the contract it follows that the organization paid an advance supplier to the upcoming supply in the amount of 317 rubles, incl. VAT - 48 rubles. For the assignment of the rights of claims under the contract of transfer of rights and obligations, the contractor must organize 317 rubles. This amount Not paid by the Contractor, but is repaid by the concretection between the contractor and the organization.
Consequently, the Contractor has a duty to pay off the debate. The organization under the Treaty of Transferred and Responsibilities (i.e. on the concession) arises only the obligation to transfer all rights to the Supplier's claims, as well as all the obligations not fulfilled by the Organization under the contract of delivery at the time of signing the contract for the transfer of rights and obligations. The organization has the right to demand a concession from the contractor.
At the same time, as follows from the description of the request, the organization lists the contractor at the expense of the upcoming performance under the contract. If the contract provides for the obligation of the Customer for the transfer of advances, then the Contractor under the Contract Agreement comes the right to demand an advance payment. In turn, the organization has the right to demand from the contractor fulfilling work.
Thus, in relation to the restriction (payment of the concession by the contractor - the payment of an advance payment) is carried out by the basic requirements for testing:
- requirements are oncoming (the organization as the customer has the right to pay a concession, the Contractor has the right to pay an advance payment);
- Requirements are homogeneous (monetary requirements).
Consequently, the credibility of payment is possible to pay for an advance payment under the contract.

The official point of view is that proportional recovery is not provided for by the rules of ch. 21 of the Tax Code of the Russian Federation, therefore VAT must be restored in the amount specified in the "shipment" subcontractor invoice (position 1).

There is also an opposite view, according to which the value of the regenerative tax is determined proportionally credited to the implementation of the exhibition of the advance payment (position 2).

The second position is certainly more profitable for taxpayers-buyers (in this case of the general contractor), but it is very risky. The fact is that at the level of definitions you have repeatedly it was stated that partial recovery of VAT based on the conditions of civil law transaction does not comply with the requirements of ch. 21 of the Tax Code of the Russian Federation, restoring the tax amount previously adopted to deduct on the basis of P. 12 Art. 171 of the Tax Code of the Russian Federation with listed advance payments should be made in the amount in which the buyer had the right to deduct the amount of VAT on the purchased work on this tax period. The opinion expressed in definitions is not a formed legal position, mandatory for use by lower courts. Thus, the point in the dispute is not delivered. There were cases when in the decisions of the presidium you interpret the norms of the law did not coincide with the conclusions presented in the definitions of you. Nevertheless, this moment The chances of the taxpayer to defend the right to proportional to the recovery of VAT are negligible.

Tax authorities in the field adhere to the same interpretation of the rules of ch. 21 of the Tax Code of the Russian Federation, indicating that the procedure for the restoration of VAT is not tied to the conditions of civil law contract between the parties of the transaction, providing for a certain procedure for the credentials of advance payments to the payment of shipped goods (works, services).

Position 2. The condition of contract contract, purchase and sale, supplies, which provides for a partial advantage of an advance, does not contradict the provisions of the Civil Code of the Russian Federation. The contract parties should carry out the specified credit in accordance with the procedure determined by the contract, and third parties are not entitled to change the specified order or apply to the legal relations of the parties to any other order of advance an advance payment, which is different from the contract established by the contract.

Based on the clarification of the COP of the Russian Federation (the definition of $ 30.2004 No. 318), the amount of funds listed before the shipment of goods (works, services) cease to be an advance payment in part, recorded on the account of the shipped batch of goods (performed works rendered to the service provided) The remaining amount continues to remain an advance payment.

In this case, due to the previously listed partial payment, the taxpayer (general contractor) acquires only a part of the work performed by the contractor. The rest is paid separately by payment orders. Therefore, the amount of VAT should be restored must be determined based on the advance payment, credited to a specific shipment.

Restoration in the manner prescribed by PP. 3 p. 3 Art. 170 of the Tax Code of the Russian Federation, the amount of VAT, determined on the basis of the amounts, which, according to the tax period, cease to be paying (partial payment) at the expense of the upcoming work. For the amounts that exists (that is, they are not credited to the executed stage of the work), the VAT recovery is not subject to.

Contracting contracts provide for the advancement of the subcontractor. Moreover, the prepayment is counted at the expense of the value of the results transferred to the Customer (general contractor) not completely, but in the amount of from 50 to 70%. In what size in accordance with the requirements of paragraph 3 of Art. 170 Tax Code, the general contractor must restore the advance "VAT - in the amount calculated from the cost of the adopted CMR (indicated in the invoice received from the subcontractor) or the calculated proportionately based on the" redeemed "part of the advance?

Repayment of advances

We read the prepayment of parts: how to be with the advance VAT

Often, a partial prepayment under an agreement providing for several deliveries or phase-out of work is read at the expense of payment not entirely under the nearest delivery, and parts accounting for several applications. for exampleThe contract provides for 10 supplies. The price of each delivery is 1500 rubles. Prepay - 1000 rubles, from which every delivery of the goods is read at 100 rubles. And after each shipment, the buyer must additionally pay extra 1400 rubles. Similar terms of payment are sometimes prescribed when leases.

Such a payment order often ensures the interests of the seller in case the buyer does not pay any of the next deliveries. Then the seller has the ability to consider the "unused" residue of the advance on debt repayment. In addition, such advances can be read into account not only for payment, but also redeeming contractual sanctions.

As in such cases, the seller (performer, landlord) take to deduct, and to the buyer (customer, tenant) - to restore the advance VAT: all its amount is completely at the first shipment or parts as the contract is fulfilled?

And sometimes the advance payment is fully due to the payment of the last delivery under the contract (the last stage of the work, the last month of rent). In this case, the advance remains an advance all the time to the last delivery (the expiration of the last month of rental, the fulfillment of the last stage of the work). Does the parties deduct and restore the advance VAT until the contract fulfillment?

How to make a seller to deduct the advance VAT

When you receive a prepayment, you must accrue VAT and for the next 5 calendar days to put an advance invoice invoice.

With the first delivery you:

accrual on its value VAT and put a shipping invoice to the buyer;
get the right to deduct VAT accrued from the advance. But how many VAT can be put to deduct if only part of the advance payment is read in this delivery? And is it possible at all now to declare, if the advance is not at all reading at the expense of this delivery, but what follows the payment of the following supplies?

The rules are formulated in the Tax Code of the Russian Federation very concise. It says it only that the amount of tax calculated with the amount of advance is subject to deduction from the shipping date relevant goods (performance of work, provision of services).

Thus, to deduction at the first delivery, you can take only VAT from the amount of an advance that corresponds to shipped goods. How to establish a correspondence between advance and shipment? You have two options:

(or) under the terms of the contract;

(or) At the cost of shipped goods.

Option 1. Take to deduct VAT based on the terms of the Advance Treaty

for exampleif only 100 rubles is read in the account of one shipment. From the previously paid advance in the amount of 1000 rubles, then we accept only VAT from 100 rubles. And the VAT from the rest of the advance payment will be set to deduction as the delivery of those parties to which it reads. If, according to the terms of the contract, the entire amount of the prepayment is due to the payment of the last delivery, until the day of the last shipment, do not accept anything to deduct.

Indirectly, this conclusion follows from the letter of the Federal Tax Service of Russia in which she indicated that "the defining condition for making the tax previously paid to the budget from the advances received, it is the fact of the advance payment on the account of the shipment of goods (performed works rendered) "

Example. Default of the Advance VAT from the seller with option 1

Condition

Decision

Option 2. Take to deduct VAT in the amount specified in the shipment invoice

This approach can be justified by the fact that the Tax Code of the Russian Federation does not directly indicate the need to take into account the terms of the advance agreement.

Compare the sum of the advance and the cost of the first delivery:

(if a) The amount of the advance is less, then we accept the entire amount of the advance VAT;

(if a) The extension amount is more, we accept the advance payment of VAT in the amount equal to the shipping invoice specified in the invoice. VAT from the balance of the advances on the same algorithm is set to deduct the following supplies under this contract.

Example. Default of the Advance VAT from the seller with option 2

Condition

Decision

How is the advance payment?

This option is risky. In one of the letters, the Ministry of Finance indicated that VAT with a prepayment, in account of which The goods in a particular quarter did not ship, the deduction in this quarter is not subject to. And, based on this statement, the tax authorities are likely to recognize the unlawful deduction of VAT, which comes to the balance of the advance, not read into the current supply. Then they detach you tax, accrue penal and, perhaps, a fine for non-payment of tax under Art. 122 NK RF.

However, the claims of inspectors should not be if the buyer finally calculates the first delivery in the same quarter in which it took place.

As you can see, option 2 is more profitable for you if the buyer's delivery is not paid in the shipment quarter. However, I. tax risks When applying this option is large.

As a buyer to restore the advance VAT

Enumeiling an advance payment and receiving an advance invoice invoice for it, you have the right to declare to deduct the advance VAT specified in it. Then, after the adoption of the first batch of shipped goods to account and obtain a shipping invoice, you have:

the right to deduct the shipping VAT shown in it;
responsibility Restore previously adopted to deduct the advance VAT. But how: immediately all or only in the part that is read in payment for this supply?

The Tax Code of the Russian Federation points out only that the amounts of VAT in the amount of previously adopted to deduct the prepayment should be restored in the period in which the tax on the purchased goods (work, services) is deductible.

If you literally read this rule, you might think that with any next delivery, you need to restore the entire deduction - without taking into account the cost of the purchase, nor the terms of the contract. But, fortunately, it is not. Above, we quoted a letter of the Federal Tax Service of Russia, from which it follows that for the deduction of VAT from the advances in the seller, it is important which part of this advance is read in the account of shipment. Denied this FTS principle of mirroring, which suggests indirect tax. This principle allows the buyer to restore only the part of the previously adopted by the advance VAT, which falls on the cost of the goods received. You can define this part in two ways.

Option 1. We restore only VAT from a part of the advance, credited to a certain delivery according to the terms of the contract

This option allows you to postpone the restoration of the deprecation VAT.

We give the rationale for this approach that has already found support in court:

tax restoration is necessary so that the buyer does not take into account the amount of VAT twice as deductions;
the recovery is subject to VAT, determined on the basis of the amounts, which, according to the period, cease to be prepayed. According to the same amounts that remain advances (that is, they are not credible at the expense of the delivery), the VAT recovery is not subject to. And in the situation under consideration after the first delivery, part of the prepayment continues to be an advance payment;
the VAT value that needs to be restored depends on the terms of the payment agreement and the advance payment, since the NK of the Russian Federation does not define the concept of prepayment and the special procedure for the advance of advance payment in VAT is not established;
the procedure for the advance of the advance, provided for by the terms of the contract, is obligatory for its parties, and the tax authorities are neither the right to change this order or apply any other.

However, keep in mind that the inspection may not agree with such restoration of VAT. And the arbitration practice has not yet developed. We are known only one that came to the court such an argument: the court took the side of the taxpayer who restored VAT parts as the contract executed proportional to the sums of the consistent advances. The court clearly indicated that it was necessary to take into account the terms of the contract and restore the VAT only with the part of the prepayment, which in accordance with them ceased to be an advance payment. And only when the procedure does not specify the order of the advance payment, the VAT should be restored within the amount of the tax specified by the Seller in the shipment invoice.

Example. Restoring the advance VAT from the buyer with option 1

Condition

We use the terms of the previous examples.

Decision

In the second quarter of 2011, the result of the first stage was taken to account, and the Contractor invoice was obtained.

Option 2. We restore the deduction of VAT in the amount specified in the invoice for the goods received

First, compare the cost of the goods received and the total amount of the advance:

(if a) The extension amount is greater, then the deduction of the advance VAT is restored in the amount of VAT specified by the seller in the shipment invoice to you, the rest is postponed for later (until the following supplies, which is read by an advance);

(if a) The amount of the advance is less, then the deduction of the advance VAT is completely restored.

Judging by the letters of our readers, this order adheres to some places inspectors.

It turns out that the listed advance payment is read at the expense of the goods received in the amount equal to the cost of the first delivery (or entirely, if it is less than this cost). But when you, following the terms of the contract, finally pay for this party, the total amount of the money listed will exceed the value of the goods received. And overpays, again, only in VAT-purposes, will be an advance. Is it possible to put a tax from it to deduct? No, even if the seller is issued an advance invoice. After all, you will not have others necessary for the deduction of VAT conditions:

mention of such an advance in the contract;
prepaid guidelines in the payment, because in it you will specify that we list the money to pay the delivery of the delivery, and not an advance.

Example. Restoration of the Advance VAT at the Buyer at Option 2

Condition

We use the terms of the previous example.

Decision

In the second quarter of 2011, the result of the first stage, the Customer accepted into account and received an invoice from the Contractor.

This option is unprofitable, because it will have to restore the entire advance VAT immediately, despite the fact that the delivery you pay minus only part of the advance.

As the buyer reduce the risk of dispute with inspection and not to restore the entire VAT immediately

It must be done so that from the contract, payments and advance invoices clearly followed clearly that a certain amount of prepayment is an advance payment of a specific delivery. For this:

listing prepayment, make a separate payment for each part of it. In the appointment of payment, specify: "Preliminary payment of the first (second, third, etc.) of deliveries for such a contract";
ask the seller (and even better - provide in the contract) so that he:
mased a separate advance invo invoice for each of the advances. After all, inspectors check deductions and restoration primarily on invoice, books of sales and purchases;
in the account for each delivery, separately indicated the sum of the advances read on into this delivery.

Of course, it is not always convenient. For example, in the case when under the lease agreement for 2 years, the advance payment is monitored by the monthly, you would have to make it on the transfer of 24 bills and ask the landlord to set 24 invoices.

Without at least need it is better not to "smear" the paid advance for the entire period of execution of the progress agreement (for all deliveries). It is better to negotiate with the seller about making an advance immediately before each delivery. Otherwise, there may be difficulties with VAT: either you have to pay a lot of tax immediately, or the inspection will have complaints.

Moreover, in some cases it is impossible. for exampleWhen a part of the advance is determined in the account of each delivery, the cost of the advance is defined as a percentage of its value, and the cost at the time of transferring the prepayment is still not known (as, for example, in construction).

So, the tax authorities proceed from the fact that the seller, taking a tax deduction, is obliged to take into account the terms of the contract on the gradual standings of the advance, and the buyer, restoring the tax, should ignore them. Fair such a state of affairs can not be called. After all, if each of the parties to the contract chooses a safe option, then after another delivery for the time required to fulfill the remaining obligations under the contract, the budget receives an "extra charge" amount of VAT. All this time, such VAT from the seller will not be announced to deduct, and the buyer will already be restored.

Tax expert

An error occurred.

That is, if the amount of 40 rubles was advanced on the order, the amount of which is 40 rubles, then under the implementation of 50 rubles, not 40 rubles, but only 20. For the first time I meet with this method of advance an advance. Is it implemented like this in typical or need to add?

well, make sure. The garbage of business actually.

(4) it turns out so

And here's another situation.

In order for the next shipment, the predictive shipment has already been fully paid from the difference in the credit. Otherwise, control, message and not a certified dock.

(29) Thank you so much!

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Requirement: about the obligation to consider the advance payment and adopted work under the contract

Decision of the Sixth Arbitration Court of Appeal dated December 13, 2016 N 06AP-6029/2016 in case No. A73-8249 / 2016

Tags: 6 Court of Appeal

Sixth Arbitration Court of Appeal in the composition:

chairman Tikhonenko A.A.

judges Drozdova V.G., Inoshetseva I.V.

when conducting a trial of the court session by the secretary of the court session Kokovenko D.S.

with participation in the meeting:

from the Limited Liability Company "Rosvienstroy" - Kirsanova NB, a representative of the proxy of 07/01/2016;

from federal state unitary enterprise "The main management of special construction through the territory of the Far Eastern federal District under the Federal Agency for Special Construction "- Skina L.A., Representative by proxy of 11/23/2016 N 4/534,

examined in court session Appeal of the Limited Liability Company "Rosvoenstroy"

decision of 12.08.2016

Arbitration Court of the Khabarovsk Territory

accepted by the judge Yantsyshina E.E.

By decision of 12.08.2016, the claim was denied.

In the appeal, RVS LLC requests the decision to cancel and take a new judicial act.

In the revocation on the appeal, the defendant expressed consent to the judicial act adopted on the case, asked him to leave him without change, the complaint - without satisfaction.

The legality and reasonableness of the appealed judicial act were tested by the appellate court in the manner prescribed by Chapter 34 of the Arbitration Procedure Code Russian Federation (hereinafter - the APC RF).

The term of work is 180 days after the conclusion of the contract (clause 4.1).

The contract provides for the condition for the addition of an advance of 30% (p.

UPP: advance advice proportional to implementation

According to paragraph 3.7, the contractor provides target use Cash obtained as an advance payment of an advances is made in proportion to the volume of work performed by the contractor.

The monthly acceptance of work is not acceptance of these work, but only confirms the fact of the partial execution by the contractor of the work and determines the amount of financing (paragraph 3.3).

In the course of work, the parties were compiled:

Act of inspection of hidden work dated 04/14/2015, signed by the defendant without objections,

Leaving the said writing without satisfaction served as the plaintiff, the foundation for converting these requirements to the court.

Having studied the materials of the case, checking the validity of the arguments set forth in the appeal, after listening to representatives of the parties, the sixth arbitration court of appeal does not see the grounds for the cancellation of the contested decision.

Refusing to satisfy the claims, the court of first instance proceeded from the fact that the wrong way was chosen to protect his rights.

By virtue of paragraph 1 of Article 740 of the Civil Code of the Russian Federation under the construction contract contract, the Contractor undertakes to build a certain object or perform otherwise established by the Contract construction worksand the customer undertakes to create a contractor the necessary conditions To perform work, take their result and pay due price.

In accordance with the provisions of Articles 711, 746 of the Civil Code of the Russian Federation, the foundation for the occurrence of the customer's obligation to pay the work performed is to pass the results of the work of the Customer.

Thus, the current legislation is the obligation of the Customer to pay the work performed in direct dependence on the fact of work.

Meanwhile, in the present case, the respondent's payment was made in an amount significantly exceeding the value of the work actually performed by the plaintiff.

Article 46 of the Constitution of the Russian Federation establishes the possibility of providing judicial protection in case of violation or threat of violations of the applicant protected by law and freedoms.

According to paragraph 1 of Article 11 of the Civil Code of the Russian Federation, judicial protection is subject to violated or challenged civil rights.

However, in this case, the case materials indicate the absence of the claimant of substantive interest in presenting a claim, the basis of which is the presence of a dispute about the acceptance of work in the presence of a significant overpayment by the defendant, which indicates the objective absence of the plaintiff's adverse effects at the time of contacting the court and consideration of the claim.

At the same time, it does not follow from the content of paragraphs 3.3, 3.7 of the controversial contract, that the plaintiff cannot independently produce an advance payment in proportion to the volume of work performed by the contractor, since the procedure for testing by the parties is not provided, and the amount of the advance is sufficient for testing.

Having established the specified, the court of first instance made the correct conclusion about the absence of legal grounds for meeting the claims.

Under the circumstances set out, the arguments of the appeal are not questioned the correctness of the conclusions of the court in this case, and therefore be rejected.

The decision of the court of first instance is based on a full and comprehensive study of the evidence submitted by the parties and the correct application of the norms of substantive law.

Violations of the norms of procedural law, entailing unconditional cancellation of the judicial act, the court of first instance is also not allowed.

Based on the base outlined, there is no reason to satisfy the appeal.

By virtue of Article 110 of the APC RF court expenses in the form of paid state duty According to the appeal, applied to the applicant.

Guided by Articles 258, 268 - 271 Arbitration Procedure Code of the Russian Federation, Sixth Arbitration Court of Appeal

Resolution enters B. legal force From the date of its adoption and can be appealed in the order of cassation in the Arbitration Court of the Far Eastern District within two months from the date of its adoption, through the Arbitration Court of First Instance.

Judges V.G. Odozdova I.V.inozhetsev

UPP: advance advice proportional to implementation

The customer claims that, according to the terms of the contract with the buyers, the advance payment of an advance in the implementation occurs in proportion to the amount of implementation regarding the amount of the contract. That is, if the amount of 40 rubles was advanced on the order, the amount of which is 40 rubles, then under the implementation of 50 rubles, not 40 rubles, but only 20. For the first time I meet with this method of advance an advance. Is it implemented like this in typical or need to add?

"That is, if the amount of 40 rubles was advanced on the order, the amount of which is 100 rubles, then at the implementation of 50 rubles, not 40 rubles are read, but only 20."

repayment of the advance payment is proportional to ...

the garbage of business actually.

change the procedure for filling out advances in implementation. You can with the question. such as distributing like this or completely.

true, nonsense is still. It turns out an advance will continue to hang 20 rubles and trade debt.

Went to the regulatory charter

(4) it turns out so
(5) Well, people insist that such an advances is registered in the contract. And how much an agreement may determine this Alas is not strong.

(6) And put the method according to the calculated documents, and it can be indicated in the Thund sums of the readable prepayment.
In this place, you can actually correct the fill algorithm

(7) and on accounting postings Does this affect?

(8) will be reflected in the same way as in mutual settlements.
by the way, there is probably more hemor with a C / F on an advance.
if the advance will be over 5 days hanging, then if proportionally and more than 5 days will increase the volume of paper.
And here's another situation.
What will happen if after describing the situation he still makes a small surcharge - 20 rubles?))

yeah, here a lot of things can come up, it comes to an abscrunch. And how to distinguish an advance from repayment already debt?

(11) The contract is prescribed the amount or percentage of order. While it is not paid - no reloads begin. The problems could only occur when order adjustment is entered, but here you can simply take care of the advancely advance payment based on the new order sum.

(13) So this is the sky and the Earth, what you described with.
Most likely we are talking about what the advance should be in proportion to shipment.

this is implemented in 1C. Prepayment is no less than some percent. Setup in 1C contracts.

If so, all this is 1c.

Maniac, I think you will slightly slow down

(15) I look in the book, but I see Figu ...
(17) And not even slightly, but specifically.

(17) Rather, you do not negotiate.
in (0) and (13) several different conditions.

(19) The condition of a mandatory prepayment complements the information in (0) and does not affect the smooth account.

(0) By the way - but the customer does not care how these advances are read? How and his counterparty? What is the principal difference? And what profit from this, except for getting hemorrhoids?

something like everyone else was mixed in a bunch - what the customer has to account for the advances in my IB. He gave money - where I put them on an advance or not he has no case, he shipped the goods - he received him - that I started it there - he also has no case ... So it is not clear where the contract with the buyer is not clear

(21) This is a very good question.

Most likely the firm wants to trace credit line Counterparty. In terms of failing to do this - we pay an advance drop, and we stretch the debts.
Wants to pay back from buyers faster, because The balance of commodity debt according to the paid shipment during the control will constantly work.

(24) Now they are accelerated. Right. There is the concept of "current payments" and the company wants to immediately get the difference in the account 62.1

That is, the advantage prescribed in the contract they have so got, but the difference between the credited advance and the implementation wants to get both current payments.

In short, it is clear. In order for the next shipment, the predictive shipment has already been fully paid from the difference in the credit. Otherwise, control, message and not a certified dock.

(27) Without messages, but just see.

well, in short on the subject of sabzh. In the typova there. need to do. Actually everything.

(29) Thank you so much!

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Often, a partial prepayment under an agreement providing for several deliveries or phase-out of work is read at the expense of payment not entirely under the nearest delivery, and parts accounting for several applications. For example, the contract provides for 10 supplies. The price of each delivery is 1500 rubles. Prepay - 1000 rubles, from which every delivery of the goods is read at 100 rubles. And after each shipment, the buyer must additionally pay extra 1400 rubles. Similar terms of payment are sometimes prescribed when leases.

How to make a seller to deduct the advance VAT

When receiving a prepayment for its entire amount, you must accrue ND FROM sub. 2 p. 1 Art. 167 NK RF And over the next 5 calendar days, put an advance invoice invoice to the buyer w. p. 3 art. 168 of the Tax Code of the Russian Federation.

With the first delivery you:

accrual on its value VAT and expose to the buyer a shipping invoice w. sub. 1 p. 1 Art. 167, paragraph 3 of Art. 169 NK RF;
get the right to deduct VAT accrued with advance but paragraph 8 of Art. 171, paragraph 6 of Art. 172 NK RF. But how many VAT can be put to deduct if only part of the advance payment is read in this delivery? And is it possible at all now to declare, if the advance is not at all reading at the expense of this delivery, but what follows the payment of the following supplies?

<или> under the terms of the contract;
<или> At the cost of shipped goods.

Option 1. Take to deduct VAT based on the terms of the Advance Treaty

For example, if only 100 rubles is read in the account of one shipment. From the previously paid advance in the amount of 1000 rubles, then we accept only VAT from 100 rubles. And the VAT from the rest of the advance payment will be set to deduction as the delivery of those parties to which it reads. If, according to the terms of the contract, the entire amount of the prepayment is due to the payment of the last delivery, until the day of the last shipment, do not accept anything to deduct.

Example. Default of the Advance VAT from the seller with option 1

/ Condition / Works worth 3,540,000 rubles. (including VAT 540,000 rubles) are performed in two stages. Prepayment of 40% of the cost of work, that is, 1,416,000 rubles. (3,540,000 rubles. X 40%), including VAT 216 000 rubles, the customer introduces in the first quarter of 2011

30% prepayment (this is 424,800 rubles, including VAT 64 800 rubles.) Reads to pay for the implementation of the first stage of work, and 70% (this is 991,200 rubles, including VAT 151 200 rubles) - in the account Second payment.

The cost of the first stage is 1,534,000 rubles. (including VAT 234 000 rub.). The stage was commissioned in the second quarter of 2011. The cost of the second stage - 2,006,000 rubles. (including VAT 306 000 rub.). Stage term - IV quarter 2011

/ decision / To deduct in the second quarter, the performer will only declare part of the advance VAT - 64,800 rubles. (from 424,800 rubles. The advance payment read by the first stage). The remaining part of the advance VAT - 151 200 rubles. - The artist will put to deduct in the fourth quarter, when the result of the second stage of work is passed.

To repay your debt on payment of the first stage, the customer must list 1 109 200 rubles. (1 534 000 rub. - 424 800 rub.). And the remaining part of the advance in the amount of 991 200 rubles. (1,416,000 rubles. - 424 800 rubles) will be credited to the account of the second stage of work.

Option 2. Take to deduct VAT in the amount specified in the shipment invoice

This approach can be justified by the fact that the Tax Code of the Russian Federation does not directly indicate the need to take into account the terms of the advance agreement.

Compare the sum of the advance and the cost of the first delivery:

<если> The amount of the advance is less, then we accept the entire amount of the advance VAT;
<если> The extension amount is more, we accept the advance payment of VAT in the amount equal to the shipping invoice specified in the invoice. VAT from the balance of the advances on the same algorithm is set to deduct the following supplies under this contract.

Example. Default of the Advance VAT from the seller with option 2

/ Condition /

/ decision / The performer compares the cost of the first stage - 1,534,000 rubles. (including VAT 234 000 rubles.) - and the amount of advance - 1,416,000 rubles. (including VAT 216 000 rub.). The amount of advance is less, and therefore in the second quarter (When passing the results of the first stage), it should be put to deduct the entire accrued from the Advance VAT, that is, 216,000 rubles.

Repayment of your debt to pay the first stage Customer in the third quarter listed 1 109 200 rubles. (1 534 000 rub. - 424 800 rub.).

Meanwhile, the cost of the first stage minus the entire amount of the advances is 118,000 rubles. (1 534 000 rub. - 1,416,000 rubles.).

The difference between these two amounts is 991,200 rubles. (1 109 200 rubles. - 118 000 rub.). Its performer must recognize the prepayment of the remaining stages received in the third quarter, accrual VAT 151 200 rubles on it. (991 200 rubles. X 18/118) and give the customer an advance invoice invoice.

This option is risky. In one of the letters, the Ministry of Finance indicated that VAT with a prepayment, in account of which goods in a particular quarter did not ship, deduct in this block are not subject to t. Letter of the Ministry of Finance of Russia of 25.02.2009 No. 03-07-10 / 04. And, based on this statement, the tax authorities are likely to recognize the unlawful deduction of VAT, which comes to the balance of the advance, not read into the current supply. Then they detach you tax, accrue penal and, perhaps, a fine for non-payment of tax under Art. 122 NK RF.

However, the claims of inspectors should not be if the buyer finally calculates the first delivery in the same quarter in which it took place.

After all, it will turn out: first you will accept the deduction of VAT from an advance in the amount of "shipping" tax or in the amount of advance (depending on what amount is more). Then, when receiving payment for the current supply there will be an overpayment that you should consider as an advances in VAT for VAT. It will be equal to the sum of the initial advances and received from the buyer as a final calculation for the first delivery of payment for the negative cost of its contractual value (in our example, in advance for VAT purposes will have to recognize 991,200 rubles). From it again need to accrue an advance tax. You also need to put an advance invoice invoice for this amount. And at the end of the quarter deduction and accrual advance tax Close each other. That is, you will not have any benefit.

OUTPUT

As you can see, option 2 is more profitable for you if the buyer's delivery is not paid in the shipment quarter. However, tax risks when applying this option is great.

As a buyer to restore the advance VAT

Transferring a prepayment and receiving an advance invoice invoice for it from the seller, you have the right to declare to deduct the advance payment specified in it VAT p. 12 art. 171, paragraph 9 of Art. 172 NK RF. Then, after the adoption of the first batch of shipped goods to account and obtain a shipping invoice, you have:

the right to deduct the shipping ND FROM p. 1 Art. 172 NK RF;
responsibility Restore previously taken to deduct the advance ND FROM sub. 3 p. 3 Art. 170 NK RF. But how: immediately all or only in the part that is read in payment for this supply?

The Tax Code of the Russian Federation points only that the amount of VAT in the amount previously taken to deduct the prepayment should be restored in the period in which the tax on purchased goods (work, services )sub. 3 p. 3 Art. 170 NK RF.

If you literally read this rule, you might think that with any next delivery, you need to restore the entire deduction - without taking into account the cost of the purchase, nor the terms of the contract. But, fortunately, it is not. Above, we quoted a letter of the Federal Tax Service of Russia, from which it follows that for the deduction of VAT from the advances in the seller, it is important which part of this advance is read in the account of shipment. It substantiated this FTS principle of mirroring, which is implied by an indirect tax. This principle allows the buyer to restore only the part of the advance payment of the advance VAT, which falls on the cost of the goods received. but Letter of the Federal Tax Service of Russia of 20.07.2011 No. EF-4-3 / 11684. You can define this part in two ways.

Option 1. We restore only VAT from a part of the advance, credited to a certain delivery according to the terms of the contract

This option allows you to postpone the restoration of the deprecation VAT.

Let us give the rationale for this approach that has already found support for the court e.:

tax restoration is necessary so that the buyer does not take into account the amount of VAT twice as deductions;
the recovery is subject to VAT, determined on the basis of the amounts, which, according to the period, cease to be prepayed. According to the same amounts that remain advances (that is, they are not credible at the expense of the delivery), the VAT recovery is not subject to. And in the situation under consideration after the first delivery, part of the prepayment continues to be an advance payment;
the VAT value that needs to be restored depends on the terms of the payment agreement and the advance payment, since the NK of the Russian Federation does not define the concept of prepayment and the special procedure for the advance of advance payment in VAT is not established;
the procedure for the advance of the advance, provided for by the terms of the contract, is obligatory for its parties, and the tax authorities are neither the right to change this order or apply any other.

However, keep in mind that the inspection may not agree with such restoration of VAT. And the arbitration practice has not yet developed. We are known only one who came to the court to the court such a dispute: the court took the side of the taxpayer who restored VAT parts as the contract is fulfilled in proportion to the amounts of reading advance but Solution of the Asian of Moscow from 05/31/2011 No. A40-22038 / 11-140-101. The court clearly indicated that it was necessary to take into account the terms of the contract and restore the VAT only with the part of the prepayment, which in accordance with them ceased to be an advance payment. And only when the procedure does not specify the order of the advance payment, the VAT should be restored within the amount of the tax specified by the Seller in the shipment invoice.

Example. Restoring the advance VAT from the buyer with option 1

/ Condition / We use the terms of the previous examples.

/ decision / In the second quarter of 2011, the result of the first stage was taken to account and the Contractor's invoice was obtained.

The customer in the second quarter restores the deduction of VAT from the part of the advance, which, according to the terms of the contract, is read in payment for the first stage, that is, 64,800 rubles. The balance of deduction is 151,200 rubles. - He will restore later when he takes into account the result of the second stage of work and will receive an invoice on it.

Option 2. We restore the deduction of VAT in the amount specified in the invoice for the goods received

First, compare the cost of the goods received and the total amount of the advance:

<если> The extension amount is greater, then the deduction of the advance VAT is restored in the amount of VAT specified by the seller in the shipment invoice to you, the rest is postponed for later (until the following supplies, which is read by an advance);
<если> The amount of the advance is less, then the deduction of the advance VAT is completely restored.

Opinion reader

"We restored the advance VAT gradually - in proportion to the part of the advance consistent with the payment of the accepted stage. And the inspector who came with the inspection believed that it was necessary to restore it all deduction immediately - when accepting the results of the first stage of work. They were going to sue, but - good luck! "Dincons managed to repel, filing an appeal in the FTS".

Ekaterina Rogova,
lawyer

Judging by the letters of our readers, this order adheres to some places inspectors.

mention of such an advance in the contract e. p. 9 tbsp. 172 NK RF;
prepaid instructions in payment e. p. 12 art. 171, paragraph 9 of Art. 172 NK RFAfter all, in it, you will specify that we list the money to pay the delivery, and not an advance.

Example. Restoration of the Advance VAT at the Buyer at Option 2

/ Condition / We use the terms of the previous example.

/ decision / In the second quarter of 2011, the result of the first stage, the Customer accepted into account and received an invoice from the Contractor.

The cost of the first stage (1,534,000 rubles) more total amount Advance (1,416,000 rubles.). Therefore, the customer restores the entire advance VAT, that is, 216,000 rubles.

In the third quarter, the Customer in repayment of his debt for the adopted result of the first stage of work lists the Contractor 1 109 200 rubles, including VAT 169 200 rubles.

In total, at this point, the Contractor listed 2,525,200 rubles. (1 416 000 rub. Before the start of work + 1 109 200 rubles. In the third quarter to pay the first stage). It is 991,200 rubles. (2 525 200 rubles. - 1 534 000 rub.) More value of the result of the first stage.

Even if the performer is in order to consider these 991,200 rubles for VAT. As a prepayment made in the third quarter of the implementation of the second stage of work and put an invoice for it, the customer will not be able to safely accept VAT from it to deduct.

This option is unprofitable, because it will have to restore the entire advance VAT immediately, despite the delivery you pay minus only the part of the advance.

As the buyer reduce the risk of dispute with inspection and not to restore the entire VAT immediately

It must be done so that from the contract, payments and advance invoices clearly followed clearly that a certain amount of prepayment is an advance payment of a specific delivery. For this:

listing prepayment, make a separate payment for each part of it. In the appointment of payment, specify: "Preliminary payment of the first (second, third, etc.) of deliveries to such a contract";
ask the seller (and even better - provide in the contract) so that it:

Mased a separate advance invo invoice for each of the advances. After all, inspectors check deductions and restoration primarily on invoice, books of sales and purchases;

In the account for each delivery, separately indicated the sum of the advances read on into this delivery.

The organization paid construction company. The advance payment provided for in terms of the agreement between them between 30% of the contract amounts, further payments are subject to the transfer of a construction company on the fact of the construction and installation work. The promotion is: how to close the debt on issued by the advance construction and installation work performed for several reporting periods: 1) close as work on complete value works? 2) to close in the amount of 30% of the cost of the work performed remaining accounts debt repay additional payments?

Dear Maxim Lvovich!

In response to your question of 04.03.2013

we inform the following: In the general case, upon receipt of goods (works, services), the amount of the advance payment is counted at the expense of this delivery (performance, services) in the full amount (but not exceeding the amount of delivery (partial delivery)).

Therefore, if in the contract separately it is not stipulated that the amount of the advance is counted in proportion to the size of shipped products (services of services), then there is no reason for the credibility of the part of the advance.

Also note that if the contract provides a proportional extension expendancy, this procedure does not affect the calculation of VAT.

So, in accordance with the explanations of the Ministry of Finance of Russia (letter dated 07/01/2010 No. 03-07-11 / 279): If the goods are shipped to the advances (work is carried out, the service is provided), the cost of which is less than the advance amount then the buyer must restore the VAT adopted To deduct prepayment, in the amount corresponding to the tax specified in the invoice issued by the Seller in the shipment of goods (works, services). That is, because PP. 3 p. 3 Art. 170 of the Tax Code of the Russian Federation does not provide for proportional recovery of VAT - the buyer must restore the amount of tax, which is brought to him by the Seller in the "shipment" invoice.

This position finds support in judicial practice. For example, in the Resolution of the FAS of the Volga District of 10.11.2011 No. A65-1814 / 2011, arbitrators supported the requirements tax Inspectionthat VAT must be restored based on the cost of the goods received. Using the use of PP. 3 p. 3 Art. 170 of the Tax Code of the Russian Federation with the terms of the contract of delivery of the arbitrators were unlawful.

The rationale for this position is given below in the materials of the Glavbukh VIP version.

Nuances Restoration by buyer VAT deduction from an advance

If the prepayment is greater than the delivery cost, the VAT is restored in the amount specified in the invoice for shipment.

The restoration of the advance VAT in practice generates many problems, since the amount of the prepayment does not always correspond to the value of goods actually transferred to the buyer. In general, if the prepayment is less delivery cost, then the amount of VAT with prepayment is restored in full. If the prepayment is greater than the cost of delivery, then the question arises, in which amount to produce recovery.

The Ministry of Finance of Russia notes that in such a situation, recovery is made in the amount corresponding to the tax specified in the invoice for shipment (letters of 06/15/10 No. 03-07-11 / 251 and from 01.07.10 No. 03-07-11 / 279 ).

If the contract is provided for an advantage of an advance of parts.

It noted that the decisive condition for making a tax deduction previously paid to the budget from the advances received, it is the fact of an advance payment on the expense of shipment of goods, fulfilling the work, the provision of services. Indeed, in this case, the principle of "mirroring", resulting from the essence of an indirect tax.

This letter concerns the right of the seller to take to deduct after the goods shipment the amount of VAT previously paid to the budget upon receipt of an advance from the buyer. However, by virtue of the "mirroring", the provisions of this letter may also relate to the restoration of VAT deduction from the advances from the buyer.

As indicated by the Ministry of Finance of Russia, the tax amounts calculated by the seller with the amount of the received prepayment, in which the goods were not shipped in the tax period, work was not performed or services were not carried out, deductions in this tax period are not subject to the seller (letter from 25.02.09 No. 03 -07-10 / 04). And if the seller takes to deduct VAT from the advance only in the part in which it reads on the account of the shipment, then the buyer should not restore VAT from the advance fully.

The choice in favor of a particular point of view on the issue under consideration is complicated and the fact that there are currently opposite court decisions. So, in the resolutions of the FAS of the Volga-Vyatka district of 05.12.11 No. A82-636 / 2011, the ninth Arbitration Court of Appeal from 11/29/11 No. 09AP-28843/2011-AK, from 19.08.11 № 09AP-18848/2011-AK and The decision of the Arbitration Court of Moscow of 02.03.12 No. A40-130502 / 11-140-528 the courts supported taxpayers. They indicated that, by those sums that, based on the terms of the contract, remain advances, that is, not credited to the account received, the VAT recovery is not subject to recovery.

At the same time, in the decision of 05.03.12 No. A51-11444 / 2011, the Far Eastern District, the Far Eastern District, did not agree with the arguments of the taxpayer on the right to proportional to the restoration of the VAT deduction. The court noted that such an order contradicts the provisions of subparagraph 3 of paragraph 3 of Article 170 of the Tax Code of the Russian Federation. The same conclusion came the FAS of the Volga District in the decision of 10.11.11 No. A65-1814 / 2011, referring to the misunderstanding of the approval of the application of this provision with the terms of the supply contract.

Consequently, until the moment when you put the center in this matter, for the buyer, it is safe to restore VAT from an advance in the full amount specified in the shipping invoice invoice, regardless of the order of the advance payment under the terms of the contract. Taxpayers ready for tax disputes, It can be recommended to take into account the position of the arbitration courts of the relevant district.

O.A. Lavrov

Head of Tax Practice

LLC "Yugononsulting"

Yours faithfully,

expert "Glavbuch system" Rakov Elena.

The answer is approved:
leading expert Hot line "Glavbuch systems"
Rodionov Alexander

How to accrue VAT from an advance against the upcoming supplies of goods (works, services). Offset the amount of the advanced advance payment of the work of the work performed is partially or in full.

Question:The contract is concluded for the work of work! The customer has listed an advance payment, we partially fulfilled the work and started the previously listed advance in proportion to the work performed. The question is whether we started the advance payment or should we bother 100% of the listed advance payment? The advance payment is larger than the amount of partially performed works. For example, the contract is 10,000,000.00, the advance payment is 500,000.00, the work is made by 235000.00) 500000: 1000000 \u003d 0.5 Then 235,000 * 0.5 \u003d 117500 is a proportional extension test. Or an advance payment in the full amount?

Answer:In this case, the answer to the question depends on the terms of the contract for the performance of work. If the contract has a condition about the partial proportional advance of the advance in the account of each stage of the work performed, then read the amount of the advanced advance (and accept the deduction of VAT on it) in the account of the work performed partially (for example, in the amount of 50% of the work performed).

If the contract is not provided for that condition at all, then you are entitled to pay the entire amount of prepayment to account for the stage of work performed and the entire amount of VAT previously accrued on the received advance, from all over the cost of work performed to deduct.

Justification

How to accrue VAT from the advance at the expense of the upcoming supplies of goods (works, services)

Deduction VAT from the advance

The amounts of tax previously accrued from the advance, the seller (performer) can take to deduct:

if the goods for which prepayment is obtained are shipped. Or work performed, services rendered. Tax present to deduction at the date of shipment, regardless of whether the ownership of the supplier has passed or not. At the same time, you can only take the amount of tax that is accrued from the cost of shipped goods, work performed or services rendered. For example, if the advance is obtained in the amount of 1,180,000 rubles. (including VAT - 180,000 rubles), and in the account of this advance shipped goods by 118,000 rubles. (including VAT - 18,000 rubles), when shipped, the seller can take to deduct only 18,000 rubles. (paragraph 8 of Art. 171, paragraph 6 of Art. 172 of the Tax Code of the Russian Federation, the letter of the Ministry of Finance of Russia of November 28, 2014 No. 03-07-11 / 60891);

Special rules are valid for the step-by-step advance of the advance. Delete the size in this case, define with the terms of the contract. If the contract is written that the advance payment is counted in payment of shipped goods (performed works provided, the services rendered) not completely, and partly, the VAT is made to deduct in the amount proportional to the sum of the credential of the advance.

This follows from the provisions of paragraph 8 of Article 171, paragraph 6 of Article 172 of the Tax Code of the Russian Federation.

An example of reflections in accounting of VAT operations upon receipt of a partial prepayment

In March JSC, the manufacturing company Master "received an advance payment from Alfa JSC to the upcoming phased shipment of products. The cost of shipment under the contract is 1,500,000 rubles. Prepayment amount - 590,000 rubles. The contract is written that the advance is counted in the amount of 50 percent of the cost of each shipment, the remaining amount of the buyer pays at each stage of shipment.

Products worth 944,000 rubles. (including VAT - 144,000 rubles) was shipped by Alpha in April. Its cost amounted to 650,000 rubles.

At the expense of the shipment, part of the advance payment in the amount of 472,000 rubles was requested. (50% of 944,000 rubles). The remaining part is 472,000 rubles. (944,000 rubles. - 472,000 rubles.) - Alpha listed "Master" after shipment of products (in April).

To account for settlements with buyers, an accountant uses subaccounts opened to the account 62, "calculations on the advances received" and "calculations for shipped products". It reflects the deduction of VAT using the subaccount "Calculations on VAT from the advances received", open to the account 76 "Calculations with different debtors and creditors".

In the accounting of "Masters" such postings were made.

Debit 51 Credit 62 subaccount "Calculations on the advances received"
- 590,000 rubles. - A partial prepayment from Alpha was obtained against the upcoming delivery of products;

Debit 76 subaccount "Calculations on VAT from the advances received" Credit 68 subaccount "Calculations on VAT"
- 90 000 rubles. (590,000 rubles. * 18/118) - Accrued VAT from the amount of prepayment.

In April:

Debit 62 subaccount "Calculations for shipped products" Credit 90-1
- 944 000 rub. - reflected revenue from the sale of products (1st party);

Debit 90-2 Credit 41
- 650,000 rubles. - written off the cost of realized products;

Debit 90-3 Credit 68 subaccount "Calculations on VAT"
- 144 000 rubles. - Accrued VAT from revenue from sales;

Debit 68 subaccount "VAT calculations" Credit 51
- 90 000 rubles. - listed into the VAT budget with the amount of the prepayment (as part of the total tax on the declaration of the first quarter);

Details Category: Consultations of experts Garant Published: 03.02.2015 00:00

The contract of delivery provides for a prepayment in the amount of 30% of the cost of supplying goods - 99 million rubles, and in fact, under the Agreement, the advance was obtained in the amount of 50 million rubles. Delivery cost - 330 million rubles. The product is reflected in the specifications to the contract. It is impossible to reflect all the names of the goods in the invoice with the resulting advance, since it is not clear when and what product will be delivered, therefore, the invoices reflected the generalized name of the "NPP communication equipment" in the invoice. The contract provides for a phased procedure for the fulfillment of obligations for the supply of goods, but does not reflect the special procedure for testing the amounts of prepayment listed on the account of the upcoming supplies, providing for a partial offset of the amounts of the previously listed prepayment.

In what size it is necessary to make a test of the received advances and amount of tax (VAT) (in the amount corresponding to part of the value of the goods purchased in percentage ratio To the cost of goods, or in full prepayment received)?

According to paragraph 1 of Art. 167 of the Tax Code of the Russian Federation tax base VAT is the earliest of the dates: the day of shipment of goods (works, services) or the day of their payment, partial payment at the expense of upcoming supplies.