Amounts received towards future payment for goods. On the inclusion in the VAT tax base of amounts of payment, partial payment for upcoming supplies of goods, performance of work or provision of services received in non-monetary form. Specifying the tax rate

1.4. Amounts of payment received, partial payment for upcoming deliveries of goods (performance of work, provision of services)

As a general rule, advance payments are subject to inclusion in the VAT tax base. At the same time, according to paragraph 1 of Art. 154 of the Tax Code of the Russian Federation, advances received towards the upcoming supply of goods (work, services) are not subject to VAT:

Subject to VAT at a rate of 0%;

The duration of the production cycle of which is over six months. This “benefit” applies to those goods (works, services) that are included in the List approved by Decree of the Government of the Russian Federation of July 28, 2006 N 468;

Exempt from VAT in accordance with Art. 149 Tax Code of the Russian Federation;

The place of sale of which is not the territory of the Russian Federation.

In all other cases, advances are subject to VAT, regardless of the form in which they are received - cash, a bill of exchange or other goods.

Thus, if the terms of the contract stipulate that the buyer transfers to the supplier, for example, a bill of exchange from a third party as an advance payment, then, upon receiving the bill of exchange, the supplier must include its value in the tax base and calculate VAT on the amount of the received advance payment.

The amount of VAT payable to the budget upon receipt of advance payments is calculated at the estimated tax rates of 10/110 and 18/118, depending on the tax rate at which the goods (work, services) sold by the taxpayer are taxed.

The amount of VAT calculated upon receipt of the advance payment can be subsequently submitted for deduction (clause 8 of Article 171 of the Tax Code of the Russian Federation). Deduction is possible in two cases:

1) upon shipment of relevant goods (works, services) (clause 6 of Article 172 of the Tax Code of the Russian Federation);

2) when returning the corresponding amounts of advance payments in connection with a change in conditions or termination of the relevant agreement (clause 5 of Article 171 of the Tax Code of the Russian Federation).

When receiving an advance payment for the upcoming supply of goods (performance of work, provision of services), the taxpayer must issue an invoice (in two copies) for the amount of the advance payment received and register it in the sales book during the period of receipt of this amount.

2009 Since 2009, the obligation to issue invoices upon receipt of advances and prepayments has been enshrined directly in the Tax Code of the Russian Federation. According to paragraph 3 of Art. 168 of the Tax Code of the Russian Federation, advance invoices are issued within 5 days, counting from the date of receipt of the advance payment. The list of mandatory details that must be present in the advance invoice is established in clause 5.1 of Art. 169 of the Tax Code of the Russian Federation.

If received advance payments are not subject to VAT by virtue of clause 1 of Art. 154 of the Tax Code of the Russian Federation (see p. 336 above), then there is no need to prepare invoices for the amounts of such advances (clause 18 of the Rules for maintaining purchase books and sales books).

In addition, advance invoices are not issued by taxpayers who have received an exemption from VAT in accordance with Art. 145 of the Tax Code of the Russian Federation.

In practice, there are situations when, under the terms of concluded contracts, the supplier carries out continuous long-term supplies of goods (provision of services) (for example, the supply of electricity, oil, gas, communication services).

The Ministry of Finance believes (letter dated 03/06/2009 N 03-07-15/39) that advance invoices for such supplies can be drawn up once a month (no later than the 5th day of the next month) and indicate in them only that part of the prepayment , received this month, which at the end of the month remained unclosed by shipments.

This recommendation can also be used by landlords who receive monthly rent in advance. Rental services, just like communication services, can be qualified as continuously provided to the same buyer (tenant). Therefore, the landlord may not issue advance invoices when receiving the current month's rent at the beginning of that month. It will be enough to issue a shipping invoice at the end of the month for the amount of this rent.

An interesting reason is why the Ministry of Finance decided to make this “concession” and allow the issuance of invoices based on the results of the month. This procedure, officials believe, is possible because the Tax Code of the Russian Federation does not define the concept of payment (partial payment). Therefore, the Ministry of Finance believes that advance payment can be considered the difference formed at the end of the month between the amounts of payment received and the cost of goods shipped (services provided).

The question arises: why, in fact, the difference should be calculated based on the results of the month. The Tax Code does not really define the concept of “prepayment” or “advance payment”. But there is arbitration practice, which suggests that in such a situation, an advance payment (advance payment) should be considered the amount of payment that is not covered by shipments at the end of the tax period, which, let us recall, is currently a quarter.

Calculating the difference at the end of the quarter would be easier both from the point of view of labor costs and from the point of view of saving paper. However, the Ministry of Finance, apparently, is guided by some other criteria, unfortunately unknown to us...

When issuing an advance invoice, you must be guided by the requirements set out in Art. 168 and 169 of the Tax Code of the Russian Federation, as well as in the Rules for maintaining purchase books and sales books. At the same time, you need to understand that an incorrectly drawn up invoice will deprive your buyer of the opportunity to declare the amount of VAT indicated in it for deduction * (101).

Advance invoices are issued on standard forms of the same form as shipping invoices (Appendix No. 1 to the Rules for maintaining purchase books and sales books). In this case, lines 3 and 4 (shipper and consignee) and columns 2-6 and 10-11 are not filled in in the advance invoice.

Line 5 of the advance invoice indicates the details (number and date of preparation) of the payment document or cash receipt (when paying using payment documents or cash receipts to which the invoice is attached). When receiving an advance in non-cash form, a dash is placed in this line.

As for the tabular part, in the advance invoice you need to fill in only four columns:

1 - name of goods (works, services), property rights;

7 - VAT rate;

8 - VAT amount;

9 - cost of goods (work, services), property rights, including VAT.

Since 2009, when issuing an advance invoice, the seller can no longer, as before, write in column 1 the phrase “Advance under agreement N...” or “Advance under invoice N...”. Now in this column you need to indicate the name (description) of those goods (works, services, property rights) that will be shipped against the received advance payment.

According to the explanation of the Ministry of Finance of Russia (letter dated 03/06/2009 N 03-07-15/39), when filling out this indicator, you should be guided by the name of the goods (work, services), property rights specified in the contracts concluded between the seller and the buyer.

It is clear that if we are talking about the supply of a single item of goods or the performance of a single work (service), then filling out an advance invoice will not be difficult.

What to do if the contract provides for the supply of a large range of goods? For example, an agreement has been concluded between organizations providing for the supply of a large range of components for computer equipment. Is it really possible to indicate the names of all products?

There is no direct answer to this question in the regulatory documents. However, the letter from the Ministry of Finance mentioned above considers another situation, when the contract specifies the general name of the goods supplied (for example, office supplies), and the specific specification of the goods supplied is determined after prepayment. In this case, according to the Ministry of Finance, the advance invoice should indicate the general name of the goods (groups of goods).

Let's imagine such a situation. An agreement was concluded between the organizations providing for the supply of more than 100 types of office supplies (paper, pens, paper clips, pencils, etc.) in the amount of 590,000 rubles. The contract stipulates that the buyer makes an advance payment in the amount of 354,000 rubles. Final payment is made after delivery of all goods. In this case, delivery is carried out in several batches (as goods arrive at the supplier’s warehouse). And which specific goods will be shipped first and which ones will be shipped second (third, fourth, etc.) is unknown in advance. Obviously, when receiving an advance payment, the supplier cannot list in the advance invoice the names of all goods that will be shipped against this advance payment. In light of the explanations contained in the commentary letter from the Ministry of Finance, the indication in this case of the general name “office supplies” in the advance invoice should not, in our opinion, cause claims from the tax authorities.

Column 7 of the advance invoice indicates the estimated rate of 10/110 or 18/118, and column 8 indicates the amount of VAT calculated on the prepayment amount.

However, a problem may arise in a situation where the contract provides for the supply of goods subject to VAT at different rates (10 and 18%). It is clear that with a 100% prepayment, it will not be difficult to fill out an advance invoice and split the advance amount between goods subject to VAT at rates of 10 and 18%. What to do if the advance payment is not 100 percent and at the time the money is received it is unclear what specific goods will be supplied for this specific advance payment amount?

The Ministry of Finance believes (see letter dated 03/06/2009 N 03-07-15/39) that in such a situation, the advance invoice should indicate the general name of the goods indicating the rate 18/118. For the supplier, this, of course, is not very profitable (he is asked to pay VAT at the rate of 18/118 on the entire advance amount). But this recommendation is very beneficial for the buyer. After all, he can claim for deduction the amount of VAT in a larger amount than provided for in the contract. It is clear that later, after delivery of the goods, the amount of deduction will be adjusted based on the actual terms of the transaction. But that's later...

Advance payment (advance payment)- payment by the buyer (customer) for goods (work, services) before their delivery (fulfillment).

Advance payment is also called advance payment or prepayment.

Example

Under the purchase and sale agreement, the parties agreed that the buyer pays an advance payment in the amount of 50% of the cost of the goods. The balance is due within 10 days after receiving the goods.

The term "advance" in English is prepayment; advance payment.

A comment

The term “advance payment” and similar phrases are mentioned in the Tax Code of the Russian Federation (TC RF).

The definition of the term “advance payment” can be found in Art. 487 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), which defines for a purchase and sale agreement: “In cases where the purchase and sale agreement provides for the buyer’s obligation to pay for the goods in full or in part before the seller transfers the goods (advance payment), the buyer must make payment on time, provided for by the contract, and if such a period is not provided for by the contract, within the period determined in accordance with Art. 314 Civil Code of the Russian Federation)".

Advance payment can also be applied to other types of contracts. So, for example, advance payment payments under a contract are regulated by Art. 711 of the Civil Code of the Russian Federation.

Corporate income tax on advance payment

Taxpayers who determine income and expenses using the accrual method (most taxpayers) do not count received prepayment amounts as income or expenses. This is due to the fact that, according to the accrual method, income and expenses are formed at the moment of transfer of ownership of a product (transfer of work results, performance of services). The mere fact of payment does not affect the recording of income or expenses.

Yes, pp. 1 clause 1 art. 251 of the Tax Code of the Russian Federation indicates that when determining the tax base, income in the form of property, property rights, works or services that are received from other persons in advance of payment for goods (works, services) is not taken into account.

Clause 14 art. 270 of the Tax Code of the Russian Federation provides that when determining the tax base, expenses in the form of property, work, services, and property rights transferred by way of advance payment are not taken into account.

It should be noted that the accrual method is also used in accounting.

VAT on advance payment

Salesman

Advances received by the seller (executor) are subject to VAT. When the goods (works, services) are subsequently sold to the buyer, the VAT paid on the advance payment is deductible. In this case, VAT is calculated on the sale of goods itself.

Thus, the Tax Code of the Russian Federation provides for a temporary taxation of VAT on the amounts of advances received. When goods (work, services) are later sold to the buyer, at that moment the previously calculated VAT is taken for deduction (as if leveling out the previously calculated VAT). In this case, the transaction itself for the sale of goods (works, services) is subject to VAT in the usual manner (see below).

These rules are specified in the following norms of the Tax Code of the Russian Federation:

The moment of determining the tax base for VAT (in general) is the earliest of the following dates (clause 1 of Article 167 of the Tax Code of the Russian Federation):

1) the day of shipment (transfer) of goods (work, services), property rights;

2) the day of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

This provision determines the obligation to calculate VAT on the received advance payment.

Upon receipt of partial payment amounts for upcoming deliveries of goods (performance of work, provision of services), the corresponding invoices are issued no later than five calendar days, counting from the date of receipt of partial payment amounts (clause 3 of Article 168 of the Tax Code of the Russian Federation).

This rule determines the seller's obligation to issue an invoice for the advance received. The invoice is drawn up in two copies and is the basis for the calculation of VAT by the seller, as well as the acceptance for deduction of VAT by the buyer.

When a taxpayer receives payment or partial payment for upcoming deliveries of goods (performance of work, provision of services), the tax base is determined based on the amount of payment received, taking into account tax (clause 1 of Article 154 of the Tax Code of the Russian Federation). The tax base does not include payment or partial payment received by the taxpayer on account of upcoming supplies of goods (performance of work, provision of services):

The duration of the production cycle of which is more than six months (clause 13 of article 167 of the Tax Code of the Russian Federation)*

Which are taxed at a tax rate of 0 percent (in accordance with paragraph 1 of Article 164 of the Tax Code of the Russian Federation);

Which are not subject to taxation (exempt from taxation).

* (Resolution of the Government of the Russian Federation dated July 28, 2006 N 468 approved the “List of goods (work, services), the duration of the production cycle of production (execution, provision) of which is more than 6 months.” Order of the Ministry of Industry and Trade of the Russian Federation N 807, Roscosmos N 138, State Corporation Rosatom "N 686 of 10/06/2009 approved the “Procedure for issuing a document confirming the duration of the production cycle of goods (works, services)”)

This rule determines that the amount of VAT is calculated based on the amount of payment received, taking into account tax. So, if an advance is received in the amount of 118 rubles, and the VAT rate is 18%, then the amount of VAT calculated on this advance is 18 rubles (calculated according to).

The norm also defines cases when advances received are not subject to VAT.

Subsequently, when shipping goods (performing work, services), the taxpayer has the right to deduct VAT amounts from the amounts of payment, partial payment received on account of upcoming deliveries of goods (work, services) (clause 8 of Article 171 of the Tax Code of the Russian Federation).

Deductions of tax amounts are made from the date of shipment of the relevant goods (performance of work, provision of services), transfer of property rights in the amount of tax calculated from the cost of goods shipped (work performed, services provided), transferred property rights, in payment of which the amount of previously received payment is subject to offset , partial payment according to the terms of the contract (if such conditions exist) (clause 6 of Article 172 of the Tax Code of the Russian Federation).

These rules provide the right to deduct VAT calculated on advances received at the moment when the goods are sold. The deduction itself is regulated by clause 1 of Art. 172 of the Tax Code of the Russian Federation.

The tax base for the shipment of goods (work, services) on account of previously received payment, partial payment, is determined by the taxpayer in the general manner - as the cost of these goods (work, services), taking into account excise taxes (for excisable goods) and without including VAT ( Clause 1 of Article 154 of the Tax Code of the Russian Federation).

This norm instructs the seller to calculate VAT on the cost of goods (work, services) sold.

Upon receipt of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights, the amount of VAT must be determined by calculation method. In this case, the tax rate is determined as a percentage of the tax rate (18% or 10%) to the tax base, taken as 100 and increased by the corresponding tax rate (clause 4 of Article 164 of the Tax Code of the Russian Federation).

This standard prescribes the use of .

Buyer

The buyer is given the opportunity to deduct VAT on advances issued. When the buyer receives the purchased goods (works, services), he is obliged to restore this VAT (that is, calculate it, as if leveling the previously made deduction). At the same time, the buyer has the right to deduct VAT on purchased goods (works, services) in the general manner.

The buyer (customer) who has paid the advance payment has the right to deduct VAT from the amounts of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services) (clause 12 of Article 171 of the Tax Code of the Russian Federation).

Deductions of VAT amounts are made on the basis of invoices issued by sellers upon receipt of payment, partial payment on account of upcoming deliveries of goods (performance of work, provision of services), transfer of property rights, documents confirming the actual transfer of payment amounts, partial payment on account of upcoming deliveries of goods (performance of work, provision of services), transfer of property rights, in the presence of an agreement providing for the transfer of the specified amounts.

(clause 9 of article 172 of the Tax Code of the Russian Federation).

The above rules allow the buyer to deduct VAT amounts on advances paid, indicating the necessary supporting documents.

Subsequently, when the buyer accepts the goods (work, services) for which the advance was paid, the amount of this VAT must be restored. This occurs in the reporting period in which the buyer deducts VAT on these goods (works, services).

This rule requires that VAT be calculated in the amount that was previously accepted for deduction (taking into account the terms of the agreement). By this action, the previously accepted VAT for deduction is, as it were, displayed at 0. At the same time, the buyer has the right to deduct VAT on purchased goods (works, services) in the general manner.

The buyer and seller entered into a purchase and sale agreement for goods in the amount of 23,600 rubles (including VAT of 3,600 rubles at a rate of 18%). According to the contract, the buyer makes an advance payment in the amount of 11,800 rubles and after delivery of the goods the final payment is made.

20.02 The buyer paid the seller an advance in the amount of 11,800 rubles to pay for the goods (including VAT of 1,800 rubles).

For income tax, the seller and buyer do not take this advance into account either as income or as expenses.

The buyer deducts VAT in the amount of 1,800 rubles (based on the advance invoice received from the seller).

The seller charges VAT in the amount of 1,800 rubles (issues an advance invoice).

D 51 K 62 11 800 advance received

D 62-av K 68 1,800 VAT is calculated on the advance

D 60 K 51 11 800 advance payment transferred

D 19 K 60 1,800 VAT calculated on advance payment

D 68 K 19 1,800 VAT accepted for deduction

10.03 The seller transfers the goods to the buyer in the amount of 23,600 rubles (including VAT 3,600 rubles).

For income tax

The seller reflects income from the sale of goods in the amount of 20 thousand rubles (excluding VAT)

The buyer accepts for accounting goods worth 20 thousand rubles (excluding VAT)

The seller deducts VAT, which was previously calculated on the advance received (1,800 rubles) and charges VAT on the sale of goods (3,600 rubles).

The buyer calculates (restores) the VAT previously accepted for deduction on the advance payment (1,800 rubles) and accepts for deduction the VAT on the goods received (3,600 rubles).

Seller's accounting:

D 62 K 90 23 600 accrued revenue from the sale of goods

D 90 K 68 3,600 VAT calculated on sales

D 90 K 41 the cost of the goods is written off as revenue from sales

D 68 K 62-av 1,800 previously calculated VAT on the advance received was accepted for deduction

Buyer's accounting:

D 41 K 60 20 000 goods registered

D 60 K 68 1,800 VAT previously accepted for deduction on the advance payment was restored

D 19 K 60 3,600 VAT in the cost of goods

D 68 K 19 3,600 VAT accepted for deduction

12.03 The buyer transfers 11,800 rubles to the seller.

For income tax purposes, the seller and buyer do not take this payment into account either as income or as expenses.

For VAT, the seller and buyer do not take this amount into account either in the tax base or as a deduction.

Seller's accounting:

D 51 K 62 11 800 payment received

Buyer's accounting:

D 60 K 51 11 800 payment for goods

Accounting for the terms of the agreement on advances

Before October 1, 2014, the situation was not good for cases of issuing an advance, which is credited over several stages. The Tax Code of the Russian Federation did not provide for the possibility of taking into account the terms of the contract. But Federal Law No. 238-FZ of July 21, 2014 introduced some changes that made appropriate adjustments to paragraphs. 3 p. 3 art. 170 of the Tax Code of the Russian Federation and allow taking into account the terms of the contract (from 10/01/2014).

An example of a court decision in favor of the tax authority on the situation before 10/01/2014:

The customer and contractor agreed on an advance payment of 30%. According to the contract, the amount of the advance payment is taken into account by the contractor and the customer in interim payments for completed and accepted work by deducting proportional amounts from the amounts of regular payments due to the contractor.

The customer made an advance payment of 118 rubles (including 18 rubles VAT) and deducted 18 rubles VAT.

Then the work was completed for 59 rubles (including 9 rubles VAT). The customer deducted 9 rubles of VAT on accepted work. The customer restored VAT in the amount of 3 rubles (30% of 9 rubles), since according to the contract, only part of the advance payment is counted towards the completion of work, and the rest remains an advance payment.

The tax authority insisted that all 9 rubles needed to be restored, since the work was performed as an advance payment and the conditions for restoring the VAT amounts under paragraphs. 3 p. 3 art. 170 Tax Codes of the Russian Federation have been implemented.

These court decisions created a “bad” precedent for taxpayers regarding long advances issued for several stages of work or supply of goods. This approach is common in construction, when the customer gives an advance to the contractor for all stages of construction. At the same time, the agreement stipulates that after the completion of each stage, part of the advance payment, proportional to the cost of the stage, is counted towards its payment. That is, the customer pays the contractor the difference between the cost of the stage and the part of the advance payment attributable to this stage. The same approach is used when issuing advances for the supply of goods in batches.

Example

The agreement provides for 2 stages of construction costing 118 million rubles, including VAT each (i.e., the amount of the entire contract is 236 million rubles, including VAT). According to the agreement, the Customer gives the contractor an advance in the amount of 70 million 800 thousand rubles, including VAT (30% of the cost of the project). According to the agreement, after the closure of the 1st stage, part of the advance in an amount proportional to its cost is counted towards payment for the stage (118 million * 30% = 35 million 400 thousand rubles), and the balance in the amount of 82 million 600 thousand rubles is paid by the customer.

After the 2nd stage is closed, the second part of the advance in the amount of 70 million 800 thousand rubles is credited, including VAT, and the customer pays the balance in the amount of 82 million 600 thousand rubles.

According to the logic of the above court decision, after the adoption of the 1st stage, the customer must recover (i.e. charge VAT) not from the amount of the offset advance in the amount of 35 million 400 thousand rubles (which corresponds to VAT in the amount of 5 million 400 thousand). rubles), and from the entire amount of the advance (since the advance does not exceed the cost of the 1st stage) - that is, restore VAT in the amount of 10 million 800 thousand rubles.

This situation is not economically beneficial for the customer, since it requires the diversion of funds for VAT, in comparison with the usual procedure. A way out of this situation may be an agreement to issue an advance not based on the entire cost of construction of the facility, but for each stage. So, if in our case, the parties stipulated in the contract an advance for the 1st stage in the amount of 35 million 400 thousand rubles, and after closing the 1st stage the customer gives the contractor an advance for the 2nd stage in the amount of 35 million 400 thousand . rubles, then in this case, after completing the 1st stage, the customer would recover VAT on the transferred advance (5 million 400 thousand rubles).

The composition of the invoice indicators issued upon receipt of advance payment (partial payment) is provided for in clause 5.1 of Art. 169 Tax Code of the Russian Federation. However, a special form of invoices issued for advance payment (partial payment) has not been approved. Therefore, when issuing goods, sellers of goods (works, services, property rights) use the invoice form approved by Decree of the Government of the Russian Federation N 914, reflecting in it the indicators provided for by the above norm.

In accordance with paragraphs. 4 clause 5.1 art. 169 on account of upcoming deliveries of goods (performance of work, provision of services, transfer of property rights), the name of the goods supplied (description of work, services), property rights must be indicated.

When filling out this invoice indicator, you should be guided by the name of the goods, property rights specified in the contracts concluded between the seller and the buyer.

For example, in the case of receiving advance payment (partial payment) under contracts for the supply of goods, which provide for their shipment in accordance with the application (specification) issued after payment, these contracts, as a rule, indicate the general name of the goods supplied (for example, petroleum products, confectionery , bakery products, stationery, etc.). Therefore, when issuing an invoice upon receipt of advance payment (partial payment) under such contracts, the generic name of the goods (or their groups) should be indicated.

If contracts are concluded that provide for the performance of work simultaneously with the delivery of goods, both the name of the goods supplied and a description of the work performed are indicated in the corresponding column of the invoice.

When receiving preliminary (partial) payment under contracts for the supply of goods, taxation of which is carried out at rates of both 10 and 18%, the invoice should either indicate the general name of the goods indicating the rate of 18/118, or allocate the goods into separate positions based on information contained in contracts, indicating the corresponding tax rates.

When issuing an invoice for preliminary (partial) payment received under contracts providing for different delivery times for goods, the amount of this payment should not be allocated to separate items.

According to paragraph 3 of Art. 168 of the Tax Code of the Russian Federation, upon receipt of payment amounts (partial payment) on account of upcoming deliveries of goods sold on the territory of the Russian Federation, the corresponding invoices are issued no later than five calendar days, counting from the day of receipt of the specified amounts.

If within five calendar days, counting from the date of receipt of the advance payment (partial payment), goods are shipped against this payment (partial payment), invoices for such payment should not be issued to the buyer.

Upon receipt of payment (partial payment) for upcoming deliveries of goods by a commission agent (agent) who carries out the sale of goods on his own behalf within the framework of a commission (agency) agreement, an invoice for this payment is issued to the buyer by the commission agent (agent), and the principal (principal) issues to the commission agent (agent) an invoice, which reflects the indicators of the invoice issued by the commission agent (agent) to the buyer. At the same time, the commission agent (agent) does not register invoices for payment (partial payment) for future deliveries of goods issued by him to the buyer in the sales book.

When making payment (partial payment) for upcoming deliveries of goods (performance of work, provision of services, transfer of property rights) in non-monetary form, corresponding invoices are also issued.

Under contracts for the supply of goods (provision of services), which provide for features associated with continuous long-term supplies of goods (provision of services) to the same buyer (for example, supply of electricity, oil, gas, provision of communication services), draw up invoices for payment (partial payment) received on account of such deliveries of goods (provision of services), and bill them to customers, in our opinion, at least once a month no later than the 5th day of the month following the end. In this case, the preparation of invoices should be carried out by suppliers in the tax period, when the amount of preliminary (partial) payment is received. This procedure is possible since the Tax Code of the Russian Federation does not define the concept of payment (partial payment), therefore, in this case, preliminary (partial) payment can be considered the difference formed at the end of the month between the received amounts of payment (partial payment) and the cost of goods shipped in a given month (delivered services).

In such invoices, according to the Russian Ministry of Finance, the amount of advance payment received in the corresponding month should be indicated, for which goods (services) were not shipped that month (Letter dated 03/06/2009 N 03-07-15/39). Upon receipt of payment (partial payment) for upcoming deliveries of goods (performance of work, provision of services) subject to taxation at a zero rate, as well as those not subject to this tax, invoices are not issued.

The above Letter also contains another conclusion: in the case of VAT administration in terms of the restoration of tax previously accepted for deduction when transferring payment (partial payment) on account of upcoming supplies of goods, the tax authorities, in the opinion of the Ministry of Finance, should carry out tax control measures similar to those carried out under verification of tax amounts subject to restoration when using previously acquired goods (work, services, property rights) to carry out transactions subject to taxation at a zero rate, as well as transactions not subject to this tax.

According to paragraph 12 of Art. 171 of the Tax Code of the Russian Federation, for a taxpayer who has transferred payment amounts (partial payment) on account of upcoming deliveries of goods, the tax amounts presented by the seller of these goods upon receipt of such payment amounts (partial payment) are subject to deductions. Clause 9 of Art. 172 of the Code establishes that these deductions are made on the basis of invoices issued by sellers upon receipt of advance payment (partial payment), documents confirming the actual transfer of these amounts, and in the presence of an agreement providing for their transfer.

If the contract for the supply of goods (performance of work, provision of services, transfer of property rights) provides for the transfer of preliminary (partial) payment without specifying a specific amount, VAT should be deducted, calculated based on the amount of the transferred preliminary (partial) payment specified in invoice issued by the seller. If the agreement does not provide for a provision for preliminary (partial) payment or there is no corresponding agreement, and the advance payment is transferred on the basis of an invoice, the tax on the transferred preliminary (partial) payment is not deductible.

When making preliminary (partial) payment in cash or in non-cash form, tax is not deducted, since in these cases the buyer of goods (work, services, property rights) does not have a payment order.

According to paragraph 1 of Art. 171 of the Tax Code of the Russian Federation, when calculating the amount of VAT payable to the budget, the taxpayer has the right to reduce the total amount of tax calculated for transactions recognized as the object of taxation by the corresponding tax deductions. Consequently, the Tax Code of the Russian Federation provides for the right of the taxpayer to deduct VAT on the listed amounts of advance payment (partial payment), and not the obligation to accept the tax for deduction. Thus, if a taxpayer uses his right to deduct tax on goods (work, services) received, and not on prepayment (partial payment) for these goods, this, according to experts from the Russian Ministry of Finance, does not lead to an understatement of the tax base and the amount of tax payable to the budget.

Difficulties that may arise for tax authorities when checking the correctness of application of these deductions do not constitute grounds for the impossibility of implementing the introduced system in practice, and even more so for refusal, as indicated in the Letter, to exercise tax control. Federal Law No. 224-FZ dated November 26, 2008 was adopted as part of the implementation of anti-crisis measures, and the procedure it introduced for deducting VAT paid as part of payment (partial payment) for upcoming supplies of goods is aimed at reducing the tax burden on the relevant taxpayers and should not lead to an increase in the burden (both tax and administrative) on VAT payers selling goods (works, services). In accordance with Art. 35 of the Tax Code of the Russian Federation, tax and customs authorities are responsible for losses caused to taxpayers, fee payers and tax agents as a result of their unlawful actions (decisions) or inaction, as well as unlawful actions (decisions) or inaction of officials and other employees of these bodies in the performance of their official duties. responsibilities.

The problem of calculating VAT on advance payments is one of the most pressing. This is due not only to taxpayer errors, but also to gaps in the legislative regulation of the calculation and payment of VAT on advance payments. In addition, tax authorities pay increased attention to the issue of VAT on advances during inspections. The purpose of this article is not only to provide an overview of the current practice of calculating VAT on advance payments and changes in tax legislation on this issue, but also to consider controversial issues of application of tax legislation, allowing taxpayers to avoid the risk of applying financial sanctions for its violation.

Despite the long-standing dispute related to the taxation of advance receipts, according to one of the points of view of which, at the time of receipt of the advance payment there is no object of taxation and the taxpayer does not have an obligation to calculate and pay VAT, the current tax legislation establishes a procedure for calculating and paying this tax, providing for inclusion in tax base of the prepayment received by the seller for upcoming deliveries of goods (works, services), transfer of property rights. The effectiveness of this legislative norm is supported by the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 19, 2003 N 12359/02 and the ruling of the Constitutional Court of the Russian Federation dated March 4, 2004 N 148-O.

Moreover, if before 01/01/2006 on the basis #M12293 0 901765862 0 0 0 0 0 0 0 294716093 subp. 1 clause 1 art. 162 of the Tax Code of the Russian Federation #S, the VAT tax base was subject to increase by the amount of advance or other payments received on account of upcoming supplies of goods, performance of work or provision of services, then in connection with the adoption of #M12291 901941443 Federal Law of July 22, 2005 N 119-FZ #S From January 1, 2006, the specified norm #M12291 901714421 of the Tax Code of the Russian Federation #S was declared invalid. At the same time, the same Law put into effect #M12293 1 901765862 0 0 0 0 0 0 0 249496202 clause 1 art. 154 of the Tax Code of the Russian Federation #S in the new edition, according to which the tax base for VAT is determined taking into account payment, partial payment for upcoming deliveries of goods (performance of work, provision of services).

The new edition of this paragraph has expanded the list of transactions subject to inclusion in the tax base as payment, partial payment for upcoming deliveries. Thus, if before 01/01/2006 only funds received as an advance payment to the taxpayer’s current account or cash desk were subject to taxation, then after this date not only money amounts are included in the tax base, but also payment, partial payment received in any other form.

In accordance with the provisions of #M12291 9027690 of the Civil Code of the Russian Federation #S, payment (partial payment) for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights is recognized as the receipt by the seller of funds or termination of obligations in another way that does not contradict the law. In this regard, for the purposes of VAT, payment (partial payment) for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights means payment (partial payment) received by the seller from the buyer, both in cash and in another form .

Thus, payment (partial payment) for upcoming deliveries of goods (performance of work, provision of services), received by the taxpayer in non-monetary form (for example, a bill of exchange, other property, work, services), is subject to inclusion in the tax base for value added tax.

In accordance with #M12293 0 901765862 0 0 0 0 0 0 0 249496202 clause 1 art. 154 of the Tax Code of the Russian Federation#S, upon receipt of an advance payment, the tax base is determined by the taxpayer based on the amount of the advance payment received, including VAT, and according to #M12293 1 901765862 0 0 0 0 0 0 0 294781628 clause 4 art. 164 of the Tax Code of the Russian Federation #S, this tax is calculated at calculated rates of 10/110 and 18/118. In this case, the tax base for the shipment of goods (work, services), transfer of property rights on account of previously received payment (partial payment), previously included in the tax base, is determined as the cost of these goods (work, services) based on prices determined in accordance with #M12293 2 901714421 0 0 0 0 0 0 0 295633603 Art. 40 of the Tax Code of the Russian Federation #S, taking into account excise taxes (for excisable goods) and excluding VAT.

#M12293 3 901765862 0 0 0 0 0 0 0 249496202 Clause 1 of Art. 154 of the Tax Code of the Russian Federation #S also provides for the non-inclusion in the tax base (exemption from taxation) of payment (partial payment) received on account of upcoming supplies of goods (performance of work, provision of services) that are not subject to taxation (exempt from taxation), taxed at a rate of 0% , as well as the duration of the production cycle of which is more than six months.

At the same time, the tax base is still subject to inclusion of funds received by the seller from the bank acting as a financial agent and financing the monetary claim under a factoring agreement that will arise in the future upon the fact of the seller’s shipment of goods (performance of work, provision of services). The specified funds are recognized as an advance payment against the upcoming delivery of goods (work, services) and are included in the tax base at the time of their receipt by the seller.

VAT deduction on the transferred prepayment

Upon receipt of payment (partial payment), sellers are required to calculate VAT, which is based on #M12293 0 901765862 0 0 0 0 0 0 0 295436991 clause 8 art. 171#S and #M12293 1 901765862 0 0 0 0 0 0 0 295764675 clause 6 art. 172 of the Tax Code of the Russian Federation #S has the right to claim a deduction from the date of shipment of the relevant goods (performance of work, provision of services), whereas before 01/01/2009, buyers paying the seller VAT amounts as part of an advance payment had the right to apply deductions only upon the fact of acceptance accounting of goods (works, services) shipped by sellers, subject to mandatory compliance with the requirements established #M12293 2 901765862 0 0 0 0 0 0 0 295764675 Art. 172 Tax Code of the Russian Federation #S.

Taking into account the unfavorable diversion of working capital for business activities in the form of VAT paid as part of advance payments and based on the mechanism of equality of VAT accruals and deductions, as part of the implementation of anti-crisis measures in order to reduce the tax burden on taxpayers #M12291 902130296 Federal Law of the Russian Federation of November 26, 2008 N 224-FZ#S amendments and additions were made to Art. 168#S , 169#S , #M12293 5 901765862 0 0 0 0 0 0 0 294519479 170#S, 171#S and 172 of the Tax Code of the Russian Federation,#S establishing the procedure for buyers to apply deductions for prepayments transferred to sellers, according to which:

The seller, within five calendar days after receiving the prepayment, must issue the buyer an invoice for the amount of the prepayment (clause 3 of Article 168 of the Tax Code of the Russian Federation #S) with the amount of VAT determined at the calculated rate ( #M12293 9 901765862 0 0 0 0 0 0 0 295305919 clause 1 art. 168 Tax Code of the Russian Federation #S), as well as with the indicators listed in #M12293 10 901765862 0 0 0 0 0 0 0 295305918 clause 5.1 art. 169 Tax Code of the Russian Federation #S;

The buyer, who is a VAT payer, has the right to claim VAT deduction from the amounts of payment transferred to sellers, partial payment for the upcoming delivery of goods (work, services), transfer of property rights ( #M12293 11 901765862 0 0 0 0 0 0 0 295436991 clause 12 art. 171 of the Tax Code of the Russian Federation #S) subject to the availability of an invoice, documents confirming the transfer of prepayment, and an agreement containing a condition for prepayment ( #M12293 12 901765862 0 0 0 0 0 0 0 295764675 clause 9 art. 172 Tax Code of the Russian Federation#S);

At the time of shipment of goods (performance of work, provision of services, transfer of property rights), the seller issues an invoice as before and has the right to apply deductions for the VAT previously calculated from the prepayment, and the buyer, on the basis of this invoice, has the right to deduct the amount of VAT on the purchased items. goods (works, services, property rights) and is obliged in the same tax period to restore for payment to the budget the VAT previously declared for deduction upon the transfer of an advance payment to the seller ( #M12293 13 901765862 0 0 0 0 0 0 0 294519479 subp. 3 p. 3 art. 170 Tax Code of the Russian Federation #S).

Since according to #M12293 14 902130296 0 0 0 0 0 0 0 250020498 clause 1 art. 9 of the Federal Law of November 26, 2008 N 224-ФЗ#S specified changes in #M12293 15 901765862 0 0 0 0 0 0 0 206635606 Ch. 21 of the Tax Code of the Russian Federation #S came into force on January 1, 2009; the procedure for buyers to claim VAT on listed advances applies to prepayment amounts received by sellers starting from this date.

Let us consider in more detail the order and procedure for buyers to claim VAT for deduction on the prepayment (partial payment) transferred to the seller, as well as the problematic issues that arise in this case.

As mentioned above, #M12293 16 901765862 0 0 0 0 0 0 0 295436991 Art. 171 of the Tax Code of the Russian Federation #S has been supplemented with clause 12, according to which, from 01/01/2009, buyers of goods (work, services) who are VAT payers have the right to claim VAT deduction from the amounts of payment transferred to sellers, partial payment on account of the upcoming delivery of goods (work, services) , transfer of property rights.

From the content of paragraph 1 of this article it follows that deduction of VAT on the listed prepayment is the right, and not the obligation of the taxpayer, as emphasized in #M12291 902147782 letters of the Ministry of Finance of Russia dated 03/06/2009 N 03-07-15/39#S and dated 01.09.2009 N 03-07-14/92. Therefore, if the taxpayer does not exercise the right to apply deductions for the prepayment transferred by him to the seller, then the buyer does not have negative tax consequences when deducting amounts of “input” VAT on goods (works, services) shipped by the seller. Obviously, if the buyer has not claimed VAT for deduction on the amount of the transferred prepayment, then he does not have the stipulated #M12293 17 901765862 0 0 0 0 0 0 0 294519479 subp. 3 p. 3 art. 170 of the Tax Code of the Russian Federation #S the obligation to restore VAT, which was explained by the Federal Tax Service of Russia in letter dated August 20, 2009 N 3-1-11/651.

According to #M12293 18 901765862 0 0 0 0 0 0 0 295764675 clause 9 art. 172 of the Tax Code of the Russian Federation #S for the transferred prepayment, only the amounts of tax presented to him by the seller are subject to deductions from the buyer, based on the invoice issued by the seller, and documents confirming the actual transfer of the prepayment amounts, in the presence of an agreement containing a condition on the transfer of the specified amounts to the seller.

In this regard, it is obvious that deductions for prepayment are possible from the buyer only when transferring advance payments by non-cash payment, i.e. if there is a payment order for the transfer of an advance payment to the bank account of the supplier of goods (works, services). Whereas when an advance payment is made to the seller in cash, as well as when an advance payment is offset in non-cash form, a deduction for it is impossible due to non-compliance with the established #M12293 19 901765862 0 0 0 0 0 0 0 295764675 clause 9 art. 172 of the Tax Code of the Russian Federation #S requirements - availability of a document for the transfer of an advance payment to the seller. At the same time, the seller who has received an advance payment in cash or in kind is obliged to issue an invoice to the buyer and include the specified amount of the advance payment in the tax base.

Procedure for issuing invoices for prepayment

Another document necessary for the buyer to apply deductions for advance payments transferred to the seller is an invoice drawn up by the seller in accordance with paragraphs. 5.1 and 6 art. 169 Tax Code of the Russian Federation #S.

In accordance with #M12293 1 901765862 0 0 0 0 0 0 0 295305919 clause 1 art. 168 Tax Code of the Russian Federation #S (as amended on November 26, 2008) from January 1, 2009, taxpayers-sellers are required to issue invoices upon receipt of advance payment (partial payment) for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights. According to #M12293 2 901765862 0 0 0 0 0 0 0 295305919 clause 3 art. 168 of the Tax Code of the Russian Federation #S, upon receipt of payment amounts (partial payment) for upcoming deliveries of goods (performance of work, provision of services, transfer of property rights), invoices are issued no later than five calendar days from the date of receipt of the prepayment amounts.

According to the clarifications of the Ministry of Finance of Russia, set out in letter dated 03/06/2009 N 03-07-15/39, if within five calendar days, counting from the date of receipt of advance payment (partial payment), goods are shipped (work performed, services rendered, transfer property rights) against this payment (partial payment), then invoices for advance payment (partial payment) should not be issued to the buyer.

Comments that have appeared in various publications mistakenly interpret this clarification of the Ministry of Finance of Russia as allowing not to include in the VAT tax base the received advance payment, on account of which goods (work, services) were shipped within five calendar days from the date of receipt of the advance payment, not to draw up an invoice for this prepayment, and, as a consequence, in this case, do not reflect the prepayment in tax accounting.

At first glance, this clarification from the Russian Ministry of Finance will somewhat reduce the workflow and the number of transactions carried out by the taxpayer in accounting. However, it must be taken into account that, firstly, the seller’s obligation to issue an invoice for the prepayment received is legally enshrined in #M12293 3 901765862 0 0 0 0 0 0 0 295305919 clause 3 art. 168 of the Tax Code of the Russian Federation #S and the Ministry of Finance of Russia, by their clarifications, do not have the right to cancel this obligation. Secondly, with this clarification, the ministry in this case only allows the seller not to issue an invoice to the buyer, while the questions about the seller’s obligation to draw up an invoice for such advances and the inclusion of prepayments in the tax base are not addressed in these clarifications of the Russian Ministry of Finance.

Thirdly, this interpretation of the above explanations is completely inapplicable when the advance payment was received in one period, and the shipment was made within five calendar days, but in a different tax period.

Letters from the Federal Tax Service of Russia dated 02/15/2011 N KE-3-3/354@ and #M12291 902270196 dated 03/10/2011 N KE-4-3/3790#S provide comprehensive explanations about the seller’s obligation to issue invoices in duplicate as per the amount of the prepayment received, and when shipping goods (work, services), regardless of the fact that within five calendar days after receiving the prepayment for the upcoming delivery of goods (work, services), falling within the same tax period or for different tax periods, shipment of goods (works, services).

At the same time, in these letters it is explained that if the seller ships goods (work, services) within five days from the receipt of the advance payment in one tax period, then the corresponding invoices for the advance payment and for shipment are registered by the seller in the sales book in the generally established manner . In this case, the invoice issued and registered in the sales book upon receipt of an advance payment is subject to registration in the purchase book indicating the corresponding amount of VAT while simultaneously registering in the sales book the invoice drawn up upon shipment of goods (works, services).

According to these clarifications from the Federal Tax Service of Russia, if in one tax period an advance payment is received and goods (work, services) are shipped against this advance payment, then the seller reflects in the VAT return not only the tax base for the shipped goods (work, services), but also tax base for the prepayment received, and also declares for deduction the amount of VAT calculated from this prepayment.

It should be noted that arbitration courts do not support this position of the financial and tax departments and proceed from the fact that if payment and shipment of goods (work, services) occurred in the same tax period (VAT tax period - quarter), then payments cannot be recognized as advance payments, and in this regard, the seller should not issue invoices for advances received in the same quarter in which the goods were shipped (work performed, services rendered).

In this situation, tax disputes are likely, but, given the established arbitration practice, possible additional VAT charges by tax authorities and holding the taxpayer liable have no judicial prospects.

In #M12291 902147782 letter of the Ministry of Finance of Russia dated 03/06/2009 N 03-07-15/39#S, an exception was made in the procedure for issuing invoices and determining the tax base for advance payment received under contracts for the supply of goods (rendering services), providing for specific features related to continuous long-term supplies of goods (provision of services) to the same buyer (for example, supply of electricity, oil, gas, provision of communication services). According to the Russian Ministry of Finance, invoices for payment (partial payment) received on account of such supplies must be prepared and issued by sellers to buyers in the tax period in which the amount of advance payment was received, but at least once a month no later than the fifth the day of the month following the previous month. Since #M12291 901714421 Tax Code of the Russian Federation #S does not define the concept of payment (partial payment), the Ministry of Finance of Russia considers it possible in this case to determine the amount of advance payment (partial payment) as the difference formed at the end of the month between the received payment amounts (partial payment) and the cost of shipped in a given month of goods (services provided). As a result, the Russian Ministry of Finance proposed that in invoices for prepayment for continuous long-term supplies, indicate the amount of prepayment (partial payment) received in the corresponding month, against which goods (services) were not shipped (not provided) in that month.

In practice, individual taxpayers unreasonably included in the tax base the credit balance (and in other cases even a reduced balance) in the accounting accounts of settlements with buyers of such goods (services), recorded at the end of the reporting month. In addition, there are cases where some sellers improperly included in the tax base or credit balance of the entire account for settlements with buyers or the difference between prepayment and shipment in general for all buyers. In both cases, taxpayers violated VAT legislation, since it is obvious that as a result of such unjustified actions, the amount of prepayment received from some buyers was unlawfully understated by the amount of receivables from other buyers.

It is important to take into account here that the Ministry of Finance of Russia for continuous long-term supplies proposed to determine the taxable prepayment not in the form of the balance of advances listed at the end of the reporting month on the credit of the accounting accounts of settlements with buyers of such goods (services), but the difference to be determined in the context of each buyer individually between the amounts of prepayment (partial payment) received for a given month and the cost of goods (services) shipped (rendered) for a given month. Invoices for such prepayments must be prepared by the sellers and issued to each buyer who remits the prepayment.

It must be taken into account that tax legislation does not provide for liability for the seller’s failure to provide the buyer with an invoice. In this case, the buyer loses the right to apply deductions for advances issued due to the lack of an invoice. At the same time, the seller is obliged to draw up an invoice for the prepayment received, register it in the invoice journal and reflect it in the sales book. Otherwise, the provisions provided for may be applied to it. #M12293 4 901714421 0 0 0 0 0 0 0 344457965 Art. 120 of the Tax Code of the Russian Federation #S liability for gross violation of the rules for accounting for income and expenses and objects of taxation. In accordance with the additions and changes made (hereinafter - #M12293 5 902228216 0 0 0 0 0 0 0 206504532 Law N 229-ФЗ#S) in #M12293 6 901714421 0 0 0 0 0 0 0 344457965 Art. 120 of the Tax Code of the Russian Federation #S, from 09/02/2010 penalties for gross violation of the rules for accounting for income and expenses and taxable items have been doubled. At the same time, a gross violation of the rules for accounting for income and expenses and objects of taxation means, in particular, the absence of invoices, and from 09/02/2010 this concept additionally includes the absence of tax accounting registers and the systematic incorrect reflection of business transactions in these registers.

Invoices are not issued for prepayments received for upcoming deliveries of goods (performance of work, provision of services):

Subject to taxation at a zero rate, not subject to value added tax;

The duration of the production cycle of which is over 6 months;

Upon receipt of an advance payment by organizations and individual entrepreneurs exempt from fulfilling the duties of a taxpayer on the basis #M12293 7 901765862 0 0 0 0 0 0 0 206963291 Art. 145 Tax Code of the Russian Federation #S.

Please note that, in accordance with #M12293 8 901765862 0 0 0 0 0 0 0 295305919 clause 3 art. 168#S and #M12293 9 901765862 0 0 0 0 0 0 0 295305918 clause 3 art. 169 of the Tax Code of the Russian Federation #S when shipping goods (performing work, providing services) that are not subject to taxation (exempt from taxation) on the basis #M12293 10 901765862 0 0 0 0 0 0 0 249365132 Art. 149 of the Tax Code of the Russian Federation #S, as well as persons exempted from fulfilling the duties of a taxpayer on the basis #M12293 11 901765862 0 0 0 0 0 0 0 206963291 Art. 145 of the Tax Code of the Russian Federation #S, sellers are required to issue an invoice to the buyer without allocating VAT.

Changes in#M12293 0 901765862 0 0 0 0 0 0 0 295305918 clause 1 art. 169 Tax Code of the Russian Federation#S , contributed#M12291 902228216 Federal Law of July 27, 2010 N 229-FZ#S , from 09/02/2010, the possibility of exchanging electronic invoices was introduced with the mutual consent of the parties to the transaction and the availability of joint technical means and capabilities for receiving and processing such invoices.

Changes in #M12293 0 901765862 0 0 0 0 0 0 0 295305918 clause 1 art. 169 of the Tax Code of the Russian Federation #S, introduced #M12291 902228216 by Federal Law of July 27, 2010 N 229-ФЗ#S, from September 2, 2010, the possibility of exchanging electronic invoices was introduced with the mutual consent of the parties to the transaction and the availability of joint technical means and capabilities for receiving and processing such invoices. But taxpayers still cannot take advantage of this right due to the fact that although #M12291 902276442 by order of April 25, 2011 N 50н#S the Ministry of Finance of Russia established the Procedure for issuing and receiving invoices in electronic form via telecommunication channels using electronic - digital signature, there are still no formats for invoices, as well as a log of received and issued invoices, purchase books and sales books in electronic form, which, in accordance with clause 9 of Art. 169 of the Tax Code of the Russian Federation #S must be approved by the Federal Tax Service of Russia.

Issuing invoices for prepayment

Since a special form of invoices issued for advance payment (partial payment) has not been approved, sellers of goods (work, services, property rights) should issue the specified invoices in the form approved. #M12291 901776354 by Decree of the Government of the Russian Federation dated December 2, 2000 N 914#S, reflecting the indicators provided for in clause 5.1 of Art. 169 of the Code.

In the new clause 5.1, additionally introduced #M12291 902130296 by Federal Law of November 26, 2008 N 224-ФЗ#S in #M12293 0 901765862 0 0 0 0 0 0 0 295305918 Art. 169 of the Tax Code of the Russian Federation #S, lists the mandatory indicators that must be indicated in the prepayment invoice issued by the seller to the buyer:

Serial number and date of issue of the invoice;

Name, address and TIN of the seller;

Payment document number;

Name of goods supplied or transferred property rights, description of works, services;

Prepayment amount;

Tax rate;

The amount of tax determined taking into account the applicable tax rate.

For the buyer to accept for deduction the VAT amounts presented by the seller, the invoice must comply with the requirements #M12293 1 901765862 0 0 0 0 0 0 0 295305918 Art. 169 Tax Code of the Russian Federation #S. Taking into account arbitration practice, when the courts did not support the position of the financial and tax departments in refusing deductions applied by taxpayers on the basis of invoices filled out with technical errors, from 01/01/2010 #M12293 2 901765862 0 0 0 0 0 0 0 295305918 clause 2 art. 169 of the Tax Code of the Russian Federation #S additionally established that errors in invoices that do not prevent tax authorities from identifying the seller, buyer of goods (work, services), property rights, the name of goods (work, services), property rights, their value during a tax audit , as well as the tax rate and the amount of tax presented to the buyer, are not grounds for refusal to accept tax amounts for deduction.

At the same time, the Ministry of Finance of Russia, in a letter dated August 26, 2010 N 03-07-11/370, provided explanations according to which, due to the fact that the specified addition to #M12293 3 901765862 0 0 0 0 0 0 0 295305918 clause 2 art. 169 of the Tax Code of the Russian Federation #S came into force on 01/01/2010, invoices issued before the specified deadline in violation of the requirements of paragraphs. 5, 5.1 and 6 of this article cannot be the basis for accepting for deduction or reimbursement of tax amounts presented to the buyer.

As for the seller’s application at the time of shipment of goods (works, services, property rights) of deductions for previously calculated VAT from the prepayment amounts received based on the invoice he himself compiled and issued to the buyer, one should not lose sight of those indicated in the letter dated 09.04. 2009 N 03-07-11/103 clarifications of the Ministry of Finance of Russia, according to which the seller cannot be denied a deduction on the specified invoices, even if they were drawn up in violation of the procedure provided for #M12293 4 901765862 0 0 0 0 0 0 0 295305918 clause 5.1 art. 169 of the Tax Code of the Russian Federation #S, since this article does not provide for such a refusal to deduct a deduction to the seller.

When filling out an invoice for prepayment, taxpayers had the greatest number of questions regarding filling out column 1 “Name of goods (description of work performed, services provided), property rights” and column 7 “Tax rate”.

In #M12291 902147782 letter of the Ministry of Finance of Russia dated 03/06/2009 N 03-07-15/39#S, some issues of filling out invoices for prepayment are clarified. In particular, if the contract provides for a large list of supplied goods and it is impossible to determine for which goods the buyer made an advance payment, then the Ministry of Finance of Russia in the said letter explained that in invoices for advance payment it is not necessary to rewrite specific items of goods and it is enough to indicate their general name , but only if the contract specifies the general name of the goods supplied and their shipment is provided in accordance with the application (specification) completed after payment for the goods. In other cases, when the contract specifies the names of the goods supplied or the application (specification) for the shipment of goods is completed before payment, indicating the general name of the goods in the invoice for the advance payment is unacceptable, because contradicts the requirements of subparagraph. 4 clause 5.1 art. 169 Tax Code of the Russian Federation #S.

In addition, if the contract simultaneously with the delivery of goods provides for the performance of work (provision of services), then in one invoice for prepayment, both the name of the goods supplied and a description of the work performed (services provided) should be indicated.

When receiving an advance payment under contracts for the supply of goods subject to taxation at different rates (10 and 18%), in the specified letter dated March 6, 2009 N 03-07-15/39, the Ministry of Finance of Russia also proposed two options in the invoice: indicate the general name of the goods indicating the rate 18/118 or separating goods into separate positions based on the information contained in the contracts, indicating the corresponding tax rates.

Of course, when using the first option, the seller is obliged to pay VAT to the budget, calculated at the rate of 18/118, i.e. at a calculated rate determined based on the maximum tax rate, which will certainly lead to the diversion of the taxpayer’s working capital, but according to #M12293 6 901765862 0 0 0 0 0 0 0 295436991 clause 8 art. 171 of the Tax Code of the Russian Federation #S, the seller has the right to apply deductions for VAT calculated on advances, regardless of the fact that the invoices for prepayment and for the shipment of goods against this prepayment will indicate different tax rates, and, accordingly, different amounts of VAT.

It should be noted that in practice there have been cases of the taxpayer unjustifiably claiming for deduction the amount of VAT previously calculated on an advance payment received in an amount exceeding the amount of tax calculated on the cost of goods shipped in a given tax period (work performed, services rendered), which was sufficient evidence of violation of VAT legislation. It was quite easy for the tax authority to establish such a violation during a desk audit using control ratios of tax return indicators.

#M12291 902228216 Federal Law of July 27, 2010 N 229-FZ#S put into effect from 02.09.2010 additional#M12293 0 901765862 0 0 0 0 0 0 0 295305918 subp. 6.1 clause 5 and sub. 4.1 clause 5.1 art. 169 Tax Code of the Russian Federation#S , which provide for the indication in the invoice of a new detail “Name of currency”.

However, due to the introduction of the specified changes and additions to the tax legislation on VAT from 01.01.2009, the only exception to the specified control ratio became permissible, when when calculating VAT on advances received at the calculated rate of 18/118, shipment of goods can be made at a reduced rate of 10% , and, accordingly, the amount of VAT to be deducted, previously calculated on advances received, may exceed the amount of VAT calculated upon shipment.

As for the second option, in the comments of this letter from the Ministry of Finance of Russia that appeared in the media, erroneous explanations were given that the financial department allegedly allows the prepayment (partial payment) to be divided into two parts: the amount received for the upcoming shipment of goods taxed at a rate of 10%, and the amount , received for the upcoming shipment of goods taxed at a rate of 18%, and in the invoice issued by the seller, the prepayment amount can be filled in two lines indicating the corresponding generic name of groups of goods and tax rates. The Russian Ministry of Finance did not give such explanations, so these comments are too loose an interpretation of its position and can lead to a tax risk for the buyer when the tax authorities recognize an invoice with the general names of groups of goods taxed at different rates as defective.

It is unlikely that the contract will indicate a general name of the goods and that the goods will be clearly divided into two groups in accordance with taxation at rates of 10 and 18%.

This is possible when the contract or application (specification) drawn up before payment for the goods already determines the list of goods and their name, and in this case, as stated above, reflecting the general name of the goods in the invoice for prepayment is unacceptable.

Name of currency in invoices

#M12291 902228216 Federal Law of July 27, 2010 N 229-FZ#S entered into force on September 2, 2010 additional #M12293 0 901765862 0 0 0 0 0 0 0 295305918 subp. 6.1 clause 5 and sub. 4.1 clause 5.1 art. 169 of the Tax Code of the Russian Federation #S, which provide for the indication in the invoice of a new detail “Name of currency”.

Due to the fact that in the current #M12291 901776354 Decree of the Government of the Russian Federation dated December 2, 2000 N 914#S, which establishes the procedure for filling out invoices, the indicator “Name of currency” is absent, the Ministry of Finance of Russia by letter dated October 12, 2010 N 03-07-09 /46 explained that until the Government of the Russian Federation approves the invoice form providing for this indicator and the procedure for filling it out, the name of the currency is not required to be indicated in the invoices both for the prepayment received and for the goods shipped (works, services, property rights).

At the same time, this letter from the Russian Ministry of Finance notes that indicating additional information in invoices is not prohibited by norms #M12291 901714421 of the Tax Code of the Russian Federation #S. Therefore, indicating the name of the currency on invoices can be considered as providing additional information, which is not a reason for refusing to accept VAT amounts for deduction based on such invoices.

This position of the Russian Ministry of Finance is based on the fact that #M12293 1 901765862 0 0 0 0 0 0 0 295305918 clause 8 art. 169 Tax Code of the Russian Federation #S as amended #M12293 2 902228216 0 0 0 0 0 0 0 206504532 Law N 229-ФЗ#S establishes: the form of the invoice and the procedure for filling it out from 02.09.2010 are established by the Government of the Russian Federation. At the same time, according to #M12293 3 902228216 0 0 0 0 0 0 0 295109312 clause 4 art. 10 of Law N 229-FZ#S until the Government of the Russian Federation approves the documents provided for #M12293 4 901765862 0 0 0 0 0 0 0 295305918 clause 8 art. 169 of the Tax Code of the Russian Federation #S as amended by this law, invoices were drawn up taking into account the requirements established before the day it came into force, i.e. until 02.09.2010.

At the same time, the invoice form contained in #M12291 901776354 of the Government of the Russian Federation dated December 2, 2000 N 914#S, drawn up both upon receipt of an advance payment and upon shipment of goods (work, services, property rights), is standard, but not mandatory, which until now allows taxpayers to change its form without excluding the indicators provided for in it and violating their sequence. According to #M12293 5 901765862 0 0 0 0 0 0 0 295305918 clause 8 art. 169 of the Tax Code of the Russian Federation #S, the invoice form established by the Government of the Russian Federation after 09/02/2010 became mandatory. In addition, from this date, the Government of the Russian Federation approves not only the rules for maintaining a log of received and issued invoices, purchase books and sales books, but also their mandatory forms. To date, such forms have not been approved by the Government of the Russian Federation.

Contractual conditions for prepayment

The third document, the presence of which allows buyers to apply deductions for the advance payment transferred to sellers, is an agreement containing a condition for payment (partial payment) on account of upcoming deliveries of goods (performance of work, provision of services, transfer of property rights).

According to the clarifications of the Ministry of Finance of Russia specified in letter dated 03/06/2009 N 03-07-15/39, if there is no contract in the form of a single document or there is no provision in the contract for prepayment, the buyer does not have the right to apply deductions from the transferred prepayment.

In the same letter, the Russian Ministry of Finance states that if the contract provides for the transfer of an advance payment without specifying a specific amount, then the buyer has the right to deduct the amount of VAT indicated in the invoice issued by the seller for the amount of the advance payment.

At the same time, situations should be considered when the buyer makes an advance payment in an amount different from the amount specified in the contract. Based #M12293 0 901765862 0 0 0 0 0 0 0 295764675 clause 9 art. 172 of the Tax Code of the Russian Federation #S, in the event that the buyer transfers to the seller an advance payment in an amount exceeding the amount of the advance payment specified in the contract, based on an invoice issued by the seller, the buyer has the right to deduct VAT, calculated only within the amount of the advance payment determined by the contractual terms . At the same time, if the transferred payment (partial payment) is less than the amount of the advance payment provided for in the contract, then the buyer can deduct VAT from the transferred amount of the advance payment.

In #M12291 902169975 letter of the Ministry of Finance of Russia dated July 24, 2009 N 03-07-09/33#S, the buyer’s right to apply VAT deductions from advance payments transferred to the seller in installments, incl. when the contract contains a condition for 100% prepayment.

It is especially proposed to consider questions about the requirements provided for #M12293 1 901765862 0 0 0 0 0 0 0 294519479 subp. 3 p. 3 art. 170 of the Tax Code of the Russian Federation #S the buyer’s obligation to restore for payment to the budget the amounts of VAT accepted for deduction when paying (partial payment) on account of upcoming supplies of goods (work, services). The buyer is obliged to restore the tax previously declared for deduction on advance payments transferred to the seller in the tax period in which he has the right to deduct VAT on goods accepted for accounting (work, services, property rights) paid in advance payment. This requirement is established in connection with the use by the buyer of deductions for goods received (work performed, services rendered, property rights accepted) and, in turn, the supplier submits for deduction the previously calculated tax on the prepayment received.

In a letter dated January 28, 2009 N 03-07-11/20, the Ministry of Finance of Russia expressed the opinion that when goods are delivered in accordance with the terms of the contract in separate batches, the restoration of tax amounts accepted by the buyer for deduction on 100% prepayment should be made in the amount corresponding to the tax indicated in the invoices for the purchased goods.

Of course, in connection with the introduction of the buyer’s right to apply deductions for advance payments paid to the seller, the tax authorities have additional difficulties when checking the correct application of these deductions in conditions where there is no movement of goods, work or provision of services and the buyer is already at the stage of transferring funds receives the right to deduct or reimburse VAT amounts from the budget. After all, the pressing problem of the use of deductions and the illegal receipt of funds from the budget under the guise of a VAT refund, declared by taxpayers for transactions that were formally documented, but were not actually carried out, remains a pressing issue. But if for these transactions the tax authorities could carry out tax control measures on the basis of documents on the movement of goods (performance of work, provision of services), which contain information the content of which allows to substantiate the tax authorities’ arguments about the receipt by the taxpayer of an unjustified tax benefit in the form of the unlawful use of VAT deductions , then when presenting deductions for prepayment, the number of such documents required to justify the deductions is sharply reduced.

Let's consider one of the ways to optimize tax payments when the buyer recovers VAT in accordance with #M12293 2 901765862 0 0 0 0 0 0 0 294519479 subp. 3 p. 3 art. 170 Tax Code of the Russian Federation #S.

Various publications discuss the issue of the amount of recovery by the buyer of VAT previously claimed for deduction on the advance payment transferred to the seller, when the terms of contracts for the supply of goods (performance of work, provision of services) and additional agreements to them by the parties provided for the withholding (offset) of the transferred advance payment as a percentage of the cost actually shipped goods (work performed, services rendered).

Example

A long-term agreement was concluded between the buyer and seller in the amount of 1,899,800 rubles, the terms of which stipulate that the buyer, in payment for the upcoming delivery of materials, transfers to the supplier an advance in the amount of 30% of the contract amount - 569,940 rubles, but at the same time the parties established in the agreement that they deduct an advance payment monthly in the amount of 30% of the cost of materials shipped to the buyer.

In March, the buyer, in fulfillment of the terms of the agreement on advance delivery of materials, transferred an advance to the supplier in the amount of 569,940 rubles. and VAT in the amount of 86,940 rubles is claimed for deduction from the transferred prepayment. In April, the buyer accepted materials from the supplier in the amount of RUB 542,800, incl. VAT 82,800 rubles, but both parties counted the advance towards payment for shipped materials only 30% of their cost in the amount of 170,982 rubles. At the same time, the buyer, based on the materials accepted for accounting, claimed VAT in the amount of 82,800 rubles for deduction, and from the amount of the credited advance payment, restored VAT in the amount of 26,082 rubles for payment to the budget.

As a result, in April, the buyer has accounts payable to the supplier in the amount of 371,818 rubles in the corresponding subaccounts of account 60 “Settlements with suppliers” for purchased materials. and at the same time, for advances issued, the same supplier has accounts receivable in the amount of 398,958 rubles. In a similar manner, the supplier’s subaccounts of account 62 “Settlements with buyers, customers” reflect accounts payable for advances from the buyer in the amount of RUB 398,958. and accounts receivable for shipped materials in the amount of RUB 371,818.

Thus, in violation#M12293 3 901765862 0 0 0 0 0 0 0 294519479 subp. 3 p. 3 art. 170 of the Tax Code of the Russian Federation #S by the buyer, the restoration of the VAT previously accepted for deduction on prepayment was made not in the amount of tax presented by the supplier for the shipped goods, but within the limits of the advance offset against payment for the purchased goods.

Whereas, in accordance with the current tax legislation, the buyer should have restored VAT to the budget in the amount of 82,800 rubles, equivalent to the amount of VAT presented by the supplier in the invoice and primary accounting documents. As a result, for this transaction, the buyer unlawfully understated the VAT payable to the budget in the amount of RUB 56,718.

In the above example, the parties did not take into account the requirements of the current tax legislation, and, as a result, when restoring for payment to the budget the amounts of VAT previously declared for deduction on the advance payments listed by counterparties, the buyer, in order to artificially lower the VAT payable to the budget, committed a violation of tax legislation, which may entail the risk of additional VAT assessment with penalties and tax sanctions.

At the same time, the supplier, by virtue of recording transactions for offsetting advance payments in the manner prescribed by contractual terms, has the right to claim a VAT deduction only to the extent of the amount of the advance payment, thus offset against payment for shipped products. It is obvious that such contractual terms are unfavorable for the seller and are included in the content of the contract only at the insistence or demand of the buyer (customer), who, in turn, has the only goal - not to restore in full the VAT payable to the budget, previously declared for deduction from the prepayment , thereby reducing tax payments in a specific tax period.

In accordance with the explanations of the Ministry of Finance of Russia, set out in letter dated 07/01/2010 N 03-07-11/279, if on account of the advance payment (partial payment) transferred by the buyer, the seller ships goods (work is performed, service is provided), the cost of which is less than the amount specified prepayment, then when the buyer accepts these goods (works, services) for accounting, the restoration of the VAT amounts accepted by the buyer for deduction on the listed preliminary partial payment is made in the amount corresponding to the tax indicated in the invoices issued by the seller upon shipment of goods ( performance of work, provision of services).

Taking into account the above, the buyer must take into account that #M12291 901714421 Tax Code of the Russian Federation #S does not contain provisions making the restoration of VAT dependent on the terms of the agreement for offset of advance payments, and the amounts of VAT accepted for deduction when transferring an advance payment are subject to restoration in part of the amounts related to the corresponding supply of goods (performance of work, provision of services).

Since the condition included in the contract on the offset of the advance payment as a percentage of the cost of shipped products (work performed, services rendered) only complicates the accounting of settlements between the parties under the contract and has no economic feasibility, is not determined by business goals and has the only goal - to artificially reduce subject to VAT, there are signs that the buyer has received an unjustified tax benefit. In particular, paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 53 “On the assessment by arbitration courts of the validity of a taxpayer’s receipt of a tax benefit” states that in cases where, for tax purposes, transactions are taken into account not in accordance with their actual economic meaning or taken into account transactions that are not due to reasonable economic or other reasons (business purposes), the tax benefit may be considered unjustified.

Taxpayers should take into account that failure to include in the tax base the amount of prepayment, incl. returned in the period of its receipt, as well as the calculation of VAT on the balance (balance) of advance receipts, is a tax offense and may have negative consequences.

***

Refund of prepayment

In practice, there have been cases when, in order to obtain bank loans, taxpayers found nothing else to replenish working capital than to receive from their counterparties (usually interdependent persons) an advance payment for upcoming deliveries of goods on the basis of sales and purchase agreements concluded with them, which were terminated in the same period and the advances were returned. But at the same time, in violation of current requirements #M12293 0 901765862 0 0 0 0 0 0 0 206635606 Ch. 21 of the Tax Code of the Russian Federation #S, the amounts of the received prepayment were not included in the tax base, VAT was not calculated on them, and deductions, accordingly, were not applied.

Based #M12293 1 901765862 0 0 0 0 0 0 0 295436991 para. 2 clause 5 art. 171 of the Tax Code of the Russian Federation #S, the taxpayer-seller has the right to apply deductions for the amounts of VAT calculated and paid by him to the budget from the amounts of payment, partial payment on account of upcoming deliveries of goods (performance of work, services provided) in the event of a change in the conditions or termination of the relevant contract and the return of the corresponding amounts of advance payments.

Based on the literal content of this paragraph, previously the tax authorities believed that a deduction could be made not only if there was documentary evidence of the return of the prepayment received and the change in conditions or termination of the contract, but also after the calculation and payment of VAT on the received prepayment to the budget. According to the position of the tax department, the tax was considered calculated upon the fact of its reflection in the tax return, and paid - if it was paid as part of the VAT amount payable as a whole under this declaration, i.e. if according to this declaration there is no debt to the budget. Thus, a taxpayer who received advance payments and returned them in one tax period was obliged to calculate tax on the advance payment received, but could not submit it for deduction in the same tax period, since the declaration is submitted at the end of the tax period no later than the 20th day of the month, following the expired tax period ( #M12293 2 901765862 0 0 0 0 0 0 0 295699137 clause 5 art. 174 of the Tax Code of the Russian Federation #S), and the fact that there was no debt under this declaration could be confirmed no earlier than this period, i.e. no earlier than the next tax period. This meant that deductions for advances received and returned in one tax period could not be applied until the next tax period.

However, arbitration practice on this issue was not in favor of the tax authorities, because the courts recognized the right of the taxpayer to apply deductions for advances received and returned during the tax period, incl. even when the taxpayer did not calculate VAT on the prepayment received and returned during the same tax period.

Currently, the position of the tax department on this issue has changed. On May 24, 2010, the Federal Tax Service of Russia, in letter No. ShS-37-3/2447, agreed with the Ministry of Finance of Russia, explained that if the receipt and return of advance payments are made during the tax period, then the taxpayer must calculate and reflect in the tax return the amount of VAT on the received advance payment and in the same tax period, he has the right to deduct the corresponding amount of tax if there is documentary evidence of the return of the prepayment and subject to a change or termination of the contract. Thus, the financial and tax departments recognized the taxpayer’s right to apply deductions during the period of receiving and returning advances.

But at the same time, taxpayers should take into account that failure to include in the tax base the amount of prepayment, incl. returned in the period of its receipt, as well as the calculation of VAT on the balance (balance) of advance receipts, is a tax offense and may have negative consequences.

Separately, it is necessary to consider the issues of taxation of advance payments in cases where the taxpayer begins to apply the VAT exemption introduced by tax legislation.

By virtue of direct instructions #M12293 3 901765862 0 0 0 0 0 0 0 249365132 clause 8 art. 149 of the Tax Code of the Russian Federation #S procedure for exemption from taxation of transactions provided for #M12293 4 901765862 0 0 0 0 0 0 0 249365132 Art. 149 of the Tax Code of the Russian Federation #S, regardless of the date of payment, applies to operations for the shipment of goods, (work, services) from the date of entry into force of the benefit or from the date of application of the benefit by a taxpayer who previously refused to apply the exemption for transactions named in #M12293 5 901765862 0 0 0 0 0 0 0 249365132 clause 3 art. 149 Tax Code of the Russian Federation #S.

In this regard, according to the explanations of the Federal Tax Service of Russia, if, in accordance with concluded agreements for the upcoming shipment of preferential goods (performance of work, provision of services), the taxpayer received an advance payment before this date and paid VAT on it to the budget, then depending on Whatever changes are made to the contracts, the following tax consequences arise.

If, before the date of implementation of preferential transactions, changes are made to the contract, according to which the sales price is reduced by the amount of VAT, then the amount of tax calculated and paid upon receipt of the advance payment and returned to the buyer on the basis of changes to the contract is taken for deduction during the period of shipment of goods (performance of work , provision of services). This option of changing the contract price does not incur tax losses for the selling organization.

If changes are made to the contract before the date of shipment of preferential goods (work, services), according to which the new sales price of goods (work, services) without VAT corresponds to their previously established price with VAT, then the amount of tax calculated and paid upon receipt of advance payments, to deduction is not accepted. In this regard, this procedure entails tax losses. However, there is an opinion that such a position seems controversial, since the provisions #M12293 6 901765862 0 0 0 0 0 0 0 295436991 clause 8 art. 171#S and #M12293 7 901765862 0 0 0 0 0 0 0 295764675 clause 6 art. 172 of the Tax Code of the Russian Federation #S allows you to deduct VAT paid to the budget from the prepayment received after the shipment of goods (performance of work, provision of services), without establishing exceptions.

If no changes are made to the contract before the date of shipment of the above goods (work, services) and their price is indicated including VAT, then upon shipment of goods (work, services) exempt from taxation, this amount of tax is subject to transfer to the budget in accordance with #M12293 8 901765862 0 0 0 0 0 0 0 295109307 clause 5 art. 173 Tax Code of the Russian Federation #S.

In its letters dated 08/31/2010 N 03-07-10/11, 02/07/2011 N 03-07-14/06, 05/11/2011 N03-07-10/08, the Russian Ministry of Finance supports the explanations of the tax service, but the explanations of the financial department are more laconic: according to #M12293 9 901765862 0 0 0 0 0 0 0 295436991 clause 5 art. 171 of the Tax Code of the Russian Federation #S, the amounts of VAT calculated by sellers and paid by them to the budget from the amounts of payment (partial payment) on account of upcoming supplies of goods (work, services) are subject to deductions in the event of a change in the conditions and termination of the relevant agreement and the return of the corresponding tax amounts.

Based on the above, according to the opinion of the Ministry of Finance and the Federal Tax Service of Russia given in the above-mentioned letters, VAT calculated from the received advance payment for the upcoming supply of goods (work, services) subject to VAT exemption, the seller has the right to claim a deduction only subject to a change in the contract price and return excess amount of VAT received as an indirect tax to the buyer. This position is based on the provisions of the resolution of the Constitutional Court of the Russian Federation, according to which the indirect tax received in excess from the buyer must be paid by the supplier to the budget until it is returned to the buyer.

In conclusion, I would like to draw the attention of taxpayers to errors made when offsetting mutual claims and operations to adjust the cost of previously shipped goods (work performed, services provided), which lead to an understatement of the VAT taxable base.

Often, in order to avoid the need to pay VAT on the received advance payment, taxpayers transfer funds under the guise of loans and credits, which are not subsequently returned, but are counted against payment for counter-supplied goods (works, services). The Federal Tax Service of Russia reviewed this situation and provided clarifications, according to which the borrower who shipped the goods (performed work, provided services) to repay the loan is obliged to include the specified borrowed funds in the VAT tax base as an advance payment received at the time of signing an agreement with the lender on making non-monetary payments under a loan agreement.

In practice, there are also often cases when taxpayers in the current tax period, using reversal entries, adjust the cost of previously shipped goods (work performed, services rendered). The legality and consequences of such actions are not the topic of this article. In addition, from 01/01/2010 #M12293 10 901714421 0 0 0 0 0 0 0 296420040 clause 1 art. 54 of the Tax Code of the Russian Federation #S has been supplemented with a provision allowing for adjustments to the tax base of the reporting period in which errors or distortions relating to previous periods are identified, if the errors (distortions) led to an overpayment of tax.

But as a result of such adjustments in the taxpayer’s accounting in the accounts of settlements for shipped products (work performed, services rendered), accounts payable may arise to the buyer (customer). In other cases, as a result of reversal entries, the debit of subaccount 62.1 “Settlements with buyers, customers” reflects a negative balance, which should also be regarded as a debt of the taxpayer to the buyer (customer). However, taxpayers do not pay attention to the tax consequences of such debt.

For tax purposes, the presence in the seller's accounting of a debt to the buyer (customer) should be qualified as the presence of payment, partial payment towards settlements for the upcoming supply of goods (performance of work, provision of services), subject to inclusion in the VAT tax base on the basis #M12293 11 901765862 0 0 0 0 0 0 0 249496202 Art. 154 Tax Code of the Russian Federation#S. If the specified amount of prepayment, which is registered, is not included in the taxable base, then this is a violation of the requirements #M12293 12 901765862 0 0 0 0 0 0 0 206635606 Ch. 21 of the Tax Code of the Russian Federation #S and may entail a tax risk in the form of additional assessment of VAT by the tax authorities, bringing the taxpayer to tax liability.

Tax burden of an enterprise: analysis, calculation, management Elena Viktorovna Chipurenko

3.4.8. Deductions in the form of VAT amounts calculated from payment amounts, partial payment by the buyer on account of upcoming deliveries of goods (work, services)

Due to any circumstances, the buyer may refuse the upcoming delivery of goods (works, services), and, therefore, the seller will be forced to return the previously received payment, partial payment to the buyer. Subject to deductions are VAT amounts calculated by sellers and paid by them to the budget from amounts of payment, partial payment on account of upcoming deliveries of goods (performance of work, provision of services) sold on the territory of the Russian Federation, in the event of a change in conditions or termination of the relevant contract and the return of the corresponding amounts of payment , partial payment for goods (performance of work, provision of services).

In addition, from January 1, 2008, the right to apply this tax deduction has been extended to taxpayer buyers acting as a tax agent, registered with the tax authorities and purchasing goods (work, services) from foreign entities on the territory of the Russian Federation.

The second option assumes that goods are being delivered (work is being performed, services are being provided), that is, a sales operation is taking place for which payment or partial payment was previously received. In this case, deductions of VAT amounts are made from the date of shipment of the relevant goods (performance of work, provision of services) (clause 6 of Article 172 of the Tax Code of the Russian Federation).

Each scenario leads to the formation of a VAT tax deduction equal to the full amount (or only part of the amount) of the tax accrued at the time of receipt of payment or partial payment for goods (performance of work, provision of services). And when returning payment, partial payment to the buyer, and when shipping goods (performing work, providing services) on account of the received payment, partial payment, the accounting initially reflects the reverse operation of charging VAT on payment, partial payment for goods (performance of work, provision of services) :

D-t 68 K-t 62– for the amount of VAT previously accrued for payment to the budget from the amount of payment received (partial payment) for the upcoming shipment of goods (work, services).

The amount of this operation depends on the amount of the refunded or realized payment amount or partial payment. It is possible that the volume of delivery in accordance with the contract was reduced and the buyer demanded the return of only part of the payment, partial payment for goods (fulfillment of goods, provision of services):

D-t 62 K-t cash accounting accounts (50, 51)– for the amount of payment returned to the buyer, partial payment.

In the second scenario, it may happen that only a partial shipment occurs and only a portion of the received payment, partial payment, is realized. In this case, the following transactions are made:

D-t 62 K-t 90 (91)– for the amount of actual shipment of goods (work, services) at the selling price (including VAT);

Dt 90 (91) Kt 68– for the amount of VAT charged to the buyer on goods actually shipped (work performed, services provided).

The amount of the considered tax deduction can be applied subject to the following mandatory conditions. If we are talking about a tax deduction when returning the payment amount, partial payment, then:

– the amount of VAT on the payment received, partial payment must be accrued and paid seller to the budget;

– the conditions must be changed or the corresponding supply contract must be terminated, which involves the return of payment, partial payment for goods (performance of work, provision of services);

– tax deduction is made no later than one year from the date of termination of the contractual relationship.

In this case, in accordance with Decree of the Government of the Russian Federation dated December 2, 2000 No. 914, invoices issued and registered by sellers in the sales book upon receipt of payment amounts, partial payment, are registered in the purchase book after the corresponding transactions are reflected in the accounting records in connection with the buyer’s refusal.

To apply a tax deduction when shipping goods (performing work, providing services) on account of payment received or partial payment to an enterprise, it is necessary that:

- was accrued the amount of VAT on payment received from the buyer, partial payment;

– goods have been shipped (work performed, services provided) against payment received or partial payment.

Invoices issued and registered by sellers in the sales book upon receipt of payment, partial payment on account of upcoming deliveries of goods (performance of work, provision of services) are registered in the purchase book upon shipment of goods (performance of work, provision of services) on account of received payment, partial payment indicating the corresponding amount of VAT.

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