Controversial situations related to the restoration of VAT. On the rules for the restoration of VAT on acquired fixed assets and the invalidation of certain clarifications of the Ministry of Finance of the Russian Federation Restoration of VAT Article 170 Tax Code

The article in question describes a number of VAT actions with the formation of costs in the production and sale of products, provision of services and performance of work. In general, VAT included in the price of purchased goods is not included in expenses for calculating profit. Described in paragraph 2 Art. 170 Tax Code of the Russian Federation cases represent an exception.

Another rule applies here - accounting for VAT in the cost of goods, fixed assets and intangible assets. No refunds or deductions are made for it. Such cases include transactions for the purchase of goods:

  • not subject to VAT;
  • on territory not belonging to the Russian Federation;
  • free from VAT (Article 145 of the Tax Code of the Russian Federation).

In addition, in paragraph 2 of Art. 170 of the Tax Code of the Russian Federation includes operations that coincide with the requirements of paragraph 2 of Art. 146 of the Tax Code of the Russian Federation, as well as some banking transactions.

The list of cases of recovery of VAT accepted for deduction is described in paragraph 3 of Art. 170 Tax Code of the Russian Federation.

Clause 4 art. 170 of the Tax Code of the Russian Federation establishes the principles of separate accounting for taxable and exempt from VAT cases, when one part of the claimed VAT is used as a deduction, and the other goes to increase the cost of the goods. In such cases, the accounting policy includes the calculation of the proportion between these parts (paragraph 4, paragraph 4, article 170 of the Tax Code of the Russian Federation).

What was changed in Article 170 of the Tax Code of the Russian Federation in 2015 - 2017?

From 01/01/2015 according to the law “On amendments to the Tax Code of the Russian Federation” dated 11/24/14 No. 366-FZ:

  1. Canceled sub. 5 p. 3 Art. 170 Tax Code of the Russian Federation: the legislator considered it unnecessary to restore VAT on transactions with a 0% rate.
  2. When applying a patent, entrepreneurs need to recreate the VAT. This applies to tax, the deduction of which was made in the period (paragraph 5, subparagraph 2, paragraph 3, Article 170 of the Tax Code of the Russian Federation) preceding the transition of the individual entrepreneur to a patent. Previously, the wording of this paragraph included only the simplified tax system and UTII. The Ministry of Finance strongly recommends the restoration of VAT (letter dated May 12, 2014 No. 03-07-14/22144).

On January 1, 2016, the changes introduced by the Law “On Amendments...” dated November 28, 2015 No. 326-FZ came into force:

  1. In sub. 5, clause 4.1, a paragraph has been added, the text of which indicates additional types of transactions that are not taken into account when determining the value of securities.
  2. In clause 5, the text regarding application features is supplemented with a reference to the new clause 5.1.
  3. A new clause 5.1 has been introduced, dedicated to the specifics of attributing tax to expenses by clearing organizations performing operations to perform the functions of a central counterparty.

In 2016, the Law “On Amendments...” dated 07/03/2016 No. 242-FZ in sub. 2 and 3 clause 4.1, sub. 1 and 3 of clause 5.1, editorial changes were made related to the replacement of the definition of “financial instruments of futures transactions” with “derivative financial instruments”.

From 01.07.2017 to the Law “On Amendments...” of 30.11.2016 No. 401-FZ adjusted procedure for VAT restoration when receiving budget subsidies. See more details. .

In what cases is VAT restored (clause 3 of Article 170 of the Tax Code of the Russian Federation)?

It is possible to restore VAT accepted for deduction (clause 3 of Art. 170 Tax Code of the Russian Federation):

  1. When transferring property, intangible assets, rights to the authorized capital of companies or in the form of a share contribution to a cooperative. VAT on fixed assets and intangible assets is restored in proportion to their residual value on the balance sheet.
  2. For goods, fixed assets, intangible assets in transactions not subject to VAT. Recovered VAT is included in other expenses.
  3. If a company or individual entrepreneur switches from OSN to simplified tax system or UTII. When switching to Unified Agricultural Tax, VAT is not restored. Individual entrepreneurs also restore tax when switching to PSN.
  4. With partial prepayment of goods. Reinstatement is also carried out if there is a return of funds received due to a change in contractual provisions. See also .
  5. When the price of the delivered goods or its quantity decreases.
  6. If there are subsidies from the budget to reimburse the cost of the goods received. Moreover, until July 1, 2017, we are talking about subsidies only from the federal budget, and from 01.07.2017 - from a budget of any level.

How is VAT restored on real estate?

A special procedure for the restoration of VAT on real estate has existed since 01/01/2006. He assumes that during capital construction or the purchase of real estate, which is subsequently used in transactions not subject to VAT, the tax must be restored. This also applies to construction work when using these objects in similar operations. The exception is real estate that was put into operation 15 years ago or more. This rule also applies to facilities built and operated before 2006.

VAT is restored at the end of each year, starting from the year of initial depreciation of the property. The recoverable amount of VAT is determined at the rate of 1/10 of the amount accepted for deduction, in a certain proportion. It is calculated taking into account the ratio of the cost of goods not subject to VAT to the total cost of shipment for the year. The calculated VAT is included in other expenses to reduce income (profit).

IN Art. 170 NK the procedure for this restoration is not prescribed if the building is used in production, which is not subject to VAT, and depreciation has already been accrued (for example, 4 years). The most likely action here is the restoration of VAT over the next 6 years.

If there was a deduction for the objects, and then they began to be partially used in transactions not subject to VAT, then the tax must be restored (letter of the Ministry of Finance dated October 23, 2007 No. 03-07-08/308). Restoration is done during the period when the object begins to be used in VAT-free transactions, calculating the tax amount in proportion to the residual value and taking into account the restored amount as part of other expenses (paragraphs 3 and 4, subparagraph 2, paragraph 3, Article 170 of the Tax Code of the Russian Federation).

Read about the procedure for recovering VAT paid on a property that is immediately intended to be used in both taxable and non-taxable transactions.

What happens to VAT when a defect is detected (clause 3 of Article 170 of the Tax Code of the Russian Federation)?

Situations for detecting defects may be as follows:

  • The defect was detected during the acceptance of goods from the supplier. In this case, the return of the defective material is carried out without reflecting its receipt in accounting, and the question of VAT recovery does not arise.
  • The defect was discovered after the goods were posted, when VAT on it had already been deducted. The supplier agrees to replace it or return the money. Returning goods to the supplier is an operation formalized in the same way as sales, i.e. with a delivery note and invoice, in which VAT is allocated, although this is done at the cost of delivery. In this case, there is no need to restore VAT either.
  • The defect is identified after the goods have been posted and VAT has been deducted on it, but for any reason it is not returned to the supplier, but a decision is made to dispose of the defect. Art. 170 does not indicate such a situation as obliging the restoration of the tax. However, the Russian Ministry of Finance believes that it is necessary to restore the tax, since the write-off does not apply to transactions subject to VAT (letter dated March 19, 2015 No. 03-07-11/15015). The courts in such cases take the opposite position, pointing out that the Tax Code of the Russian Federation does not contain such an obligation (determinations of the Supreme Arbitration Court of the Russian Federation dated March 15, 2011 No. VAS-2416/11 and dated November 25, 2010 No. VAS-14097/10).

What to do with VAT when writing off raw materials at the end of their shelf life?

Let's say the shelf life of the raw materials from which medicines are made has expired. In this case, it must be written off and disposed of because it is no longer suitable for production. However, when purchasing raw materials, VAT was deducted. In connection with the destruction of raw materials, the conclusion arises that VAT cannot be recreated.

The list of cases when it is necessary to restore VAT is given in paragraph 3 of Art. 170 Tax Code of the Russian Federation. According to the courts, due to the fact that the operation to destroy raw materials is not included in clauses 2 and 3 of Art. 170 of the Tax Code of the Russian Federation, there is no need to restore VAT (resolution of the 9th Arbitration Court of Appeal dated October 24, 2012 No. 09AP-30416/2012). However, tax officials insist on the mandatory restoration of VAT.

Therefore, it is worth understanding that there may be disagreements with tax authorities on this issue. If the company has no desire to argue with the Federal Tax Service in an arbitration court, the restored VAT is included in other expenses (subclause 1, clause 1, article 264 of the Tax Code of the Russian Federation).

How is VAT restored when carrying out construction and installation works on fixed assets?

When carrying out construction and installation work (CEM) for the reconstruction of real estate, the initial cost changes. In this case, VAT on construction and installation costs and purchased materials for reconstruction is deductible. If a renovated building is used for non-taxable operations, VAT on construction and installation works and materials used should be restored (clause 2 of Article 170 of the Tax Code of the Russian Federation). This is possible if:

  • the building is not fully depreciated;
  • Less than 15 years have passed since the building was put into operation.

The company, similar to actions with real estate, must annually record in the declaration the amount of restored VAT for 10 years. When calculating, a share of 1/10 of the VAT amount accepted for deduction upon completion of construction is taken. It is determined based on the results of the year. The share is calculated by dividing the cost of goods shipped, not subject to VAT, by the total cost of property sold at the end of the year.

VAT recovery is not carried out if the OS:

  • transferred for use free of charge under an agreement;
  • by decision of the company's directors:
    • have been preserved for a period of more than 3 months;
    • reconstructed over 12 months.

In this case, the amount of restored VAT is determined by the formula:

VAT in - VAT to recovery;

VAT inc - VAT from the cost of construction and installation works, materials and services during reconstruction;

K1 - the number of years after which depreciation is not charged;

K2 - number of years remaining until 10;

D - share in the cost of goods not subject to VAT in relation to the total cost.

What to do with VAT when switching from OSNO to simplified tax system?

When a company uses general taxation and then transfers it to the simplified tax system, the procedure for collecting VAT changes. When switching to the simplified tax system, it is restored in the period preceding the transition (subclause 2, clause 3, article 170 of the Tax Code of the Russian Federation). The amount of tax coincides with the amount of VAT that was deducted when calculating it in that period. For fixed assets and intangible assets, it is proportional to their residual value on the balance sheet without revaluation (letter of the Ministry of Finance dated 04/01/10 No. 03-03-06/1/205). This value is reflected in account 91 “Other expenses”, which leads to a decrease in profit.

In the work in progress of such a company there may be materials used in the manufacture of products, but at the time of transition to the simplified tax system, they were not delivered to the customer. The VAT deduction is not tied to specific products sold; it is carried out upon receipt of goods and materials at the company’s warehouse. This means that the amount of VAT on inventories in unfinished products is not restored when switching to the simplified tax system. The tax on inventories in the warehouse is subject to restoration.

True, the Federal Tax Service has a different point of view on this issue. Thus, the letter of the Federal Tax Service dated November 24, 2005 No. MM-6-03/988@ (which the Ministry of Justice refused to register) states that it is necessary to restore VAT on purchased materials, both used and not used in production. Since the issue remains controversial, the company must make its own decision on this matter.

For information on how to restore VAT, see the article .

What happens to VAT when returning goods?

The return of purchased goods by the buyer raises the issue of VAT for the seller. If this product is not used in the future for sale due to detected defects, the Ministry of Finance believes that VAT should be restored and paid to the budget, and this should be done during the period when the returned product is accepted for accounting. However, when reading paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, we will see that it stipulates all possible cases of VAT recovery. This situation cannot be attributed to them. Therefore, arbitration courts believe that the company may not restore VAT.

What actions should the company's management take to maintain separate VAT accounting?

Art. 170 of the Tax Code of the Russian Federation does not decipher the methodology and list of measures for organizing separate accounting. Companies themselves must take care of their development and registration in accounting policies. All recommendations of the chief accountant should be communicated to employees. It is worth understanding that violating the accepted procedure can lead to problems and even fines.

There are several options for separate VAT accounting:

  • use of subaccounts to account 19;
  • posting of goods according to VAT taxation groups.

It is highly advisable to use subaccounts for VAT account 19, which can be used to reflect data on various VAT transactions, including those with different rates. The lack of high-quality accounting does not allow deducting and including VAT in expenses to calculate profits.

To distribute VAT on taxable and non-taxable transactions, the proportion is calculated based on the cost of goods shipped for the quarter or year. Usually the previous period is taken as a basis, since the current period may not have complete cost data.

The development of provisions for separate accounting in a company should be based on primary documents (for example, invoices), orders regarding the attribution of specific goods to one or another type of taxation (Resolution of the Federal Antimonopoly Service of the Ural District dated August 25, 2008 No. Ф09-5940/08-С2 ).

Read about the methodology for maintaining separate VAT accounting in the article .

What is said in paragraph 4 of Art. 170 of the Tax Code of the Russian Federation?

In paragraph 4 of Art. 170 of the Tax Code of the Russian Federation deals with the issues of assigning VAT to one or another category, which depends on the type of VAT taxation applied.

Thus, this norm provides for the following operations:

  • free from VAT - the tax is included in the price (clause 2 of Article 170 of the Tax Code of the Russian Federation);
  • subject to VAT - a deduction is applied (Article 172);
  • combined - VAT categories are used in proportion depending on the scheme recorded by the company in the accounting policy, which must take into account the provisions of clause 4.1.

A company will not be able to deduct tax and include it in expenses if it is not accounted for by taxation categories (letter of the Ministry of Finance dated November 11, 2009 No. 03-07-11/296). A company may not divide VAT into categories if transactions that do not include VAT amount to 5% of the total amount of its expenses (Letter of the Ministry of Finance dated December 29, 2008 No. 03-07-11/387). Then the entire tax is deductible (Article 172 of the Tax Code of the Russian Federation).

To ensure comparability of indicators, VAT should be excluded from them. The procedure for calculating expenses under the Tax Code of the Russian Federation is not given, so the company needs to include in its accounting policy a provision on assessing expenses and calculating 5%.

Read about separate accounting in the article .

How to calculate 5%?

The importance of 5% (clause 4 of Article 170 of the Tax Code of the Russian Federation) is characterized by the fact that in the presence of non-taxable transactions that do not exceed this value in the amount of total transactions, all input VAT in the company is subject to deduction (Article 172 of the Tax Code of the Russian Federation). There is no need to keep separate VAT records.

The 5% calculation should also be fixed in the company’s tax policy. According to the calculation procedure proposed in the letters of the Federal Tax Service (dated November 13, 2008 No. ShS-6-3/827/@) and the Ministry of Finance (dated December 29, 2008 No. 03-07-11/387), it is necessary to take into account the amount of all costs of the full cycle from production to sale goods. The proportion is determined taking into account the comparability of the results, i.e. without VAT. The ratio of the cost of expenses for VAT-free transactions to the total cost of expenses will give the desired value.

The judicial authorities believe that the 5% rule does not depend on the type of activity carried out by the taxpayer and, thus, applies to all taxpayers (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 21, 2012 No. 2676/12).

The Federal Tax Service considers the use of 5% incorrect when a company is engaged in production and trade (letter of the Federal Tax Service dated March 22, 2011 No. KE-4-3/4475). The decision in this case remains with the company and its ability to defend its case in court.

Example :

When checking a car dealer, Federal Tax Service inspectors excluded the costs of selling cars. As a result, the 5% target was significantly exceeded. But the inspectors did not take into account the following:

  1. The dealer is not only authorized to sell cars, but also performs warranty repairs and maintenance before selling them.
  2. In addition, he provides their maintenance (MOT) after the expiration of the warranty period.

The court, having assessed the specifics of the dealer’s work, considered it erroneous to exclude expenses included in the sale of cars (Resolution of the Federal Antimonopoly Service of the North-West District dated December 22, 2010 No. A56-29465/2010).

If you sell goods (work, services) abroad, we recommend that you read the material " ".

When does the Federal Tax Service require VAT restoration?

Such cases include transactions on property that cannot be used further or transferred to another organization. This includes operations such as:

  • shortage;
  • theft;
  • loss as a result of fire or natural disaster;
  • write-off of inventory or fixed assets as a result of:
    • defects found in the material or finished product;
    • loss of presentation;
    • completion of the depreciation period;
    • wear;
    • liquidation;
  • destruction after expiration date.

VAT restoration is carried out in the quarter when the above actions with the property occurred.

However, the practice of arbitration courts says that cases when this must be done are specified in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, and this list is final. If the Federal Tax Service demands restoration of VAT in the above situations, you can appeal its actions in court. The court with a high degree of probability may find them illegal.

The following court decisions can be cited:

  • for shortages and theft - decision of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 No. 10652/06;
  • on the destruction of MPZ due to fire - FAS Resolution No. KA-A41/2501-09;
  • on write-off of fixed assets - FAS resolution No. A33-8478/06-F02/375/07;
  • on writing off defects - FAS resolution KA-A41/1528-08 in case A55-11139/2008.

How to take into account VAT on OSN with UTII?

If a company uses these two tax regimes, it is necessary to keep separate VAT records. Incoming goods for both types of activities are accounted for differently. In this case, when developing an accounting policy, the company must take into account the need for a quarterly calculation of VAT with the determination of the proportion for each type of taxation, so that this calculation allows for reliable data on VAT deductions.

Let's consider several options for distributing inventory items by type of activity:

  1. Incoming goods may clearly relate to one of the activities due to the cyclical nature of procurement (for example, monthly). In this case, if materials are purchased for activities under the OSN, then the entire VAT on the received goods is deducted, and the invoice is recorded in the purchase book. If the purchased goods are intended for activities under UTII, then VAT is fully included in the cost of materials, and the invoice is not registered.
  2. When purchasing materials with their simultaneous use for 2 types of activities, part of the materials is subject to deduction, and part is subject to VAT restoration. Separate accounting is already needed here. If it is not maintained, then an updated VAT return must be submitted to the Federal Tax Service (letter of the Ministry of Finance dated December 6, 2006 No. 03-04-15/214). According to this clarification, VAT amounts accepted for deduction in a larger volume can be restored in the quarter when the goods were used for activities under UTII.
  3. If at the beginning of the period it is not possible to determine in what type of activity the material will be used, then it is necessary to determine its actual use at the end of the quarter. At the same time, the VAT amounts for each type of activity are determined.

What will happen to VAT for charity?

Any organization, including a commercial one, can engage in charity. The Ministry of Finance of the Russian Federation clarifies that the legislation does not impose a ban on private companies in terms of providing gratuitous assistance (letter of the Ministry of Finance of the Russian Federation dated June 30, 2004 No. 26-12/43525).

Input VAT on property that is transferred to charity or used to perform work (provide services) for charitable purposes is not deductible and is taken into account in the cost of the transferred property (work, services) (letter of the Ministry of Finance dated May 10, 2012 No. 03-07-07 /49).

Answer: When restoring VAT (clause 3 of Article 170 of the Tax Code of the Russian Federation), the three-year statute of limitations does not apply and the taxpayer is obliged to restore VAT, despite the fact that more than three years have passed since the VAT refund from the budget and the obligation to restore it arose.

Rationale: The taxpayer is obliged to restore for payment to the budget the “input” VAT previously accepted for deduction in the following cases (clause 3 of Article 170 of the Tax Code of the Russian Federation).

1. When transferring property, intangible assets, property rights as a contribution to the authorized (share) capital of business companies and partnerships, a contribution under an investment partnership agreement or share contributions to mutual funds of cooperatives, as well as the transfer of real estate to replenish the endowment capital of a non-profit organization in the procedure established by Federal Law No. 275-FZ of December 30, 2006 “On the procedure for the formation and use of endowment capital of non-profit organizations” (clause 1, clause 3, article 170 of the Tax Code of the Russian Federation).

2. With the further use of goods (works, services), including fixed assets and intangible assets, property rights for the operations specified in clause 2 of Art. 170 of the Tax Code of the Russian Federation, with some exceptions specifically indicated in paragraphs. 2 p. 3 art. 170 of the Tax Code of the Russian Federation (clause 2, clause 3, Article 170 of the Tax Code of the Russian Federation). It is necessary to restore the tax payable to the budget in the tax period in which goods (work, services), including fixed assets and intangible assets, and property rights were transferred or begin to be used for such operations (paragraph 4, paragraph 2, paragraph 3, Article 170 of the Tax Code of the Russian Federation). When switching to special regimes in the form of UTII or simplified tax system, VAT is restored in the tax period preceding such a transition (paragraph 5, paragraph 2, paragraph 3, article 170 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated June 10, 2009 N 03-11-06/2/ 99).

3. When the buyer transfers amounts of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights (clause 3, clause 3, article 170 of the Tax Code of the Russian Federation). Restoration of tax amounts is carried out by the buyer in the tax period in which the tax amounts on purchased goods (works, services), property rights are subject to deduction in the manner established by the Tax Code of the Russian Federation, or in the tax period in which there was a change in conditions or termination of the relevant agreement and return of the corresponding amounts of payment, partial payment received by the taxpayer on account of the upcoming supply of goods (performance of work, provision of services), transfer of property rights.

4. If the cost of shipped goods (work performed, services rendered), transferred property rights changes downwards, including in the event of a decrease in price (tariff) and (or) a decrease in the quantity (volume) of shipped goods (work performed, services rendered) , transferred property rights (clause 4, clause 3, article 170 of the Tax Code of the Russian Federation). Restoration of VAT amounts by the buyer is carried out by the buyer in the tax period in which the earliest of the following dates falls: the date the buyer receives primary documents for a change in the direction of reducing the cost of purchased goods (work performed, services rendered), acquired property rights, or the date the buyer receives an adjustment an invoice issued by the seller when there is a downward change in the cost of goods shipped (work performed, services rendered) or transferred property rights.

5. With the further use of goods (work, services), including fixed assets and intangible assets, and property rights for carrying out operations for the sale of goods (work, services), provided for in paragraph 1 of Art. 164 of the Tax Code of the Russian Federation (clause 5, clause 3, article 170 of the Tax Code of the Russian Federation). Restoration of tax amounts is carried out in the tax period in which the goods are shipped (work performed, services provided) provided for in paragraph 1 of Art. 164 Tax Code of the Russian Federation.

6. When a taxpayer receives, in accordance with the legislation of the Russian Federation, a subsidy from the federal budget for reimbursement of costs associated with payment for purchased goods (work, services), including VAT, as well as for reimbursement of costs for paying tax when importing goods into the territory of the Russian Federation and other territories under its jurisdiction (clause 6, clause 3, article 170 of the Tax Code of the Russian Federation). Reinstatement of tax amounts is carried out in the tax period in which the amounts of the provided subsidies were received.

The VAT amount is restored using the tax rates in effect during the period of application of tax deductions (Letters of the Ministry of Finance of Russia dated 02.08.2011 N 03-07-11/208, dated 20.05.2008 N 03-07-09/10). If VAT in connection with the acquisition of property was not deducted for any reason, the taxpayer does not have the obligation to restore it (Letter of the Ministry of Finance of Russia dated February 16, 2012 N 03-07-11/47).

By virtue of paragraph 2 of Art. 173 of the Tax Code of the Russian Federation, if the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with Art. 166 of the Tax Code of the Russian Federation and increased by the amount of tax restored in accordance with clause 3 of Art. 170 of the Tax Code of the Russian Federation, the positive difference between the amount of tax deductions and the amount of tax calculated for transactions recognized as an object of taxation in accordance with paragraphs. 1 and 2 paragraphs 1 art. 146 of the Tax Code of the Russian Federation, is subject to compensation to the taxpayer in the manner and under the conditions provided for in Art. Art. 176 and 176.1 of the Tax Code of the Russian Federation, with the exception of cases when a tax return is filed by the taxpayer three years after the end of the relevant tax period.

The Tax Code of the Russian Federation does not contain a direct answer to this question, so it is advisable to turn to arbitration practice.

As stated in the Resolution of the Ninth Arbitration Court of Appeal dated December 24, 2013 No. 09AP-43350/2013 in case No. A40-92978/13, the interests of the budget in this case are protected by the provisions of paragraph 3 of Art. 170 of the Tax Code of the Russian Federation and paragraphs similar in content. 4 paragraph 6 art. 171 of the Tax Code of the Russian Federation, which provides for a mechanism for restoring VAT amounts that were previously legally claimed for deduction, but must be restored due to a change (determination) in the nature of the use of previously purchased goods (works, services). In contrast to what is provided for in paragraph 2 of Art. 173 of the Tax Code of the Russian Federation, a three-year period for claiming a deduction, the period for VAT restoration is not limited to three years.

Thus, when restoring VAT (clause 3 of Article 170 of the Tax Code of the Russian Federation), the three-year period does not apply and the taxpayer is obliged to restore VAT, despite the fact that more than three years have passed since the VAT refund from the budget and the obligation to restore it arose.

L. V. Popova

ACG "Panacea PROF"

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1. Amounts of tax presented to the taxpayer upon the acquisition of goods (work, services), property rights, or actually paid by him when importing goods into the territory of the Russian Federation and other territories under its jurisdiction, unless otherwise established by the provisions of this chapter, are not included in expenses accepted for deduction when calculating corporate income tax (personal income tax), except for the cases provided for in paragraph 2 of this article (clause as amended, entered into force on January 1, 2002 by Federal Law of August 6, 2001 N 110- Federal Law; supplemented on January 1, 2006 by Federal Law of July 22, 2005 N 119-FZ; as amended by Federal Law of November 27, 2010 N 306-FZ.
2. Tax amounts presented to the buyer when purchasing goods (work, services), including fixed assets and intangible assets, or actually paid when importing goods, including fixed assets and intangible assets, into the territory of the Russian Federation are taken into account in the cost of such goods (works, services), including fixed assets and intangible assets, in the following cases:
1) acquisition (import) of goods (work, services), including fixed assets and intangible assets used for operations for the production and (or) sale (as well as transfer, performance, provision for one’s own needs) of goods (work, services) , not subject to taxation (exempt from taxation);
2) acquisition (import) of goods (work, services), including fixed assets and intangible assets used for operations for the production and (or) sale of goods (work, services), the place of sale of which is not recognized as the territory of the Russian Federation;
3) acquisition (import) of goods (work, services), including fixed assets and intangible assets, by persons who are not taxpayers of value added tax or are exempt from fulfilling taxpayer obligations for the calculation and payment of tax (subparagraph as amended from January 1, 2006 by Federal Law of July 22, 2005 N 119-FZ;
4) acquisition (import) of goods (work, services), including fixed assets and intangible assets, property rights, for the production and (or) sale (transfer) of goods (work, services), operations for the sale (transfer) of which are not are recognized as the sale of goods (work, services) in accordance with paragraph 2 of Article 146 of this Code, unless otherwise established by this chapter (subparagraph as amended, entered into force on January 1, 2006 by Federal Law of July 22, 2005 N 119-FZ;
5) acquisition by banks applying the tax accounting procedure provided for in paragraph 5 of this article of goods, including fixed assets and intangible assets, property rights, which are subsequently sold by banks before the start of use for banking operations, for leasing or before the introduction into operation (subparagraph additionally included from October 1, 2011 by Federal Law of July 19, 2011 N 245-FZ).

(Clause as amended, put into effect on June 30, 2002 by Federal Law of May 29, 2002 N 57-FZ; the effect applies to relations arising from January 1, 2002
3. Amounts of tax accepted for deduction by the taxpayer on goods (work, services), including fixed assets and intangible assets, property rights in the manner prescribed by this chapter, are subject to restoration by the taxpayer in the following cases:
1) transfer of property, intangible assets, property rights as a contribution to the authorized (share) capital of business companies and partnerships, a contribution under an investment partnership agreement or share contributions to mutual funds of cooperatives, as well as the transfer of real estate to replenish the endowment capital of a non-profit organization in the manner , established by Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of endowment capital of non-profit organizations."

(Paragraph as amended by Federal Law No. 328-FZ of November 21, 2011; as amended by Federal Law No. 336-FZ of November 28, 2011.

Tax amounts are subject to restoration in the amount previously accepted for deduction, and in relation to fixed assets and intangible assets - in the amount proportional to the residual (book) value without taking into account revaluation.

Tax amounts subject to restoration in accordance with this subparagraph are not included in the value of property, intangible assets and property rights and are subject to tax deduction from the receiving organization (including the party to the investment partnership agreement - the managing partner) in the manner established by this chapter. In this case, the amount of the restored tax is indicated in the documents that formalize the transfer of the specified property, intangible assets and property rights;
(Paragraph as amended, put into effect on January 1, 2012 by Federal Law of November 28, 2011 N 336-FZ.


The provisions of subparagraph 1 of paragraph 3 of this article (as amended by Federal Law No. 328-FZ of November 21, 2011) apply from January 1, 2012 - see paragraph 3 of Article 4 of Federal Law of November 21, 2011 No. 328-FZ.

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2) further use of such goods (works, services), including fixed assets and intangible assets, and property rights to carry out operations specified in paragraph 2 of this article, with the exception of: operations provided for in subparagraphs 9.1 and 9.2 of paragraph 2 of Article 146 of this Code; the operation provided for in subparagraph 1 of this paragraph; performance of work (provision of services) outside the territory of the Russian Federation by Russian aviation enterprises within the framework of peacekeeping activities and international cooperation in resolving international problems of a humanitarian nature within the framework of the United Nations (in relation to aircraft, engines and spare parts for them); transfer of fixed assets, intangible assets and (or) other property, property rights to the legal successor (legal successors) during the reorganization of legal entities; transfer of property to a participant in a simple partnership agreement (joint activity agreement), investment partnership agreement or his legal successor in the event of the separation of his share from the property that is in common ownership of the parties to the agreement, or the division of such property.

(Paragraph as amended by Federal Law of July 27, 2010 N 217-FZ; as amended by Federal Law of November 28, 2011 N 336-FZ; as amended by Federal Law of November 28, 2011 N 336-FZ; as amended by , put into effect on October 1, 2013 by Federal Law of July 23, 2013 N 216-FZ.

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The provisions of the paragraph of the first subparagraph 2 of paragraph 3 of this article (in relation to the operations provided for by subparagraphs 9.1 and 9.2 of paragraph 2 of Article 146 of this Code) (as amended by Federal Law No. 216-FZ of July 23, 2013) apply until January 1, 2017 - see. paragraph 3 of Article 3 of the Federal Law of July 23, 2013 N 216-FZ.

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Tax amounts are subject to restoration in the amount previously accepted for deduction, and in relation to fixed assets and intangible assets - in the amount proportional to the residual (book) value without taking into account revaluation.

Tax amounts subject to restoration in accordance with this subparagraph are not included in the cost of the specified goods (works, services), including fixed assets and intangible assets, property rights, but are taken into account as part of other expenses in accordance with Article 264 of this Code.

Restoration of tax amounts is carried out in the tax period in which goods (work, services), including fixed assets and intangible assets, and property rights were transferred or begin to be used by the taxpayer to carry out the operations specified in paragraph 2 of this article.

When a taxpayer switches to special tax regimes in accordance with Chapters 26.2, 26.3 and 26.5 of this Code, the amounts of tax accepted for deduction by the taxpayer for goods (works, services), including fixed assets and intangible assets, and property rights in the manner prescribed by this chapter are subject to restoration in the tax period preceding the transition to the specified regimes.

(Paragraph as amended, put into effect on January 1, 2015 by Federal Law of November 24, 2014 N 366-FZ.

The provisions of this paragraph do not apply to taxpayers switching to a special tax regime in accordance with Chapter 26.1 of this Code;
3) in case of transfer by the buyer of payment amounts, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

Restoration of tax amounts is carried out by the buyer in the tax period in which the tax amounts on purchased goods (works, services), property rights are subject to deduction in the manner established by this Code, or in the tax period in which there was a change in conditions or termination of the relevant contract and return of the corresponding amounts of payment, partial payment received by the taxpayer on account of the upcoming supply of goods (performance of work, provision of services), transfer of property rights.

Amounts of tax accepted for deduction in relation to payment, partial payment for future deliveries of goods (performance of work, provision of services), transfer of property rights, are subject to restoration in the amount of tax accepted by the taxpayer for deduction on goods purchased by him (work performed, services rendered) , transferred property rights, in payment for which the amount of previously transferred payment, partial payment in accordance with the terms of the agreement (if such conditions exist) are subject to offset;
(Paragraph as amended, put into effect on October 1, 2014 by Federal Law of July 21, 2014 N 238-FZ.

(The subparagraph was additionally included from January 1, 2009 by Federal Law of November 26, 2008 N 224-FZ)
4) changes in the cost of shipped goods (work performed, services rendered), transferred property rights downwards, including in the case of a decrease in price (tariff) and (or) a decrease in the quantity (volume) of shipped goods (work performed, services rendered), transferred property rights.

Tax amounts are subject to restoration in the amount of the difference between the tax amounts calculated on the basis of the cost of goods shipped (work performed, services rendered) and transferred property rights before and after such a reduction.

Reinstatement of tax amounts is carried out by the buyer in the tax period on which the earliest of the following dates falls:
the date of receipt by the buyer of primary documents for a change in the direction of reducing the cost of purchased goods (work performed, services rendered), acquired property rights;
the date the buyer receives an adjustment invoice issued by the seller when there is a downward change in the cost of goods shipped (work performed, services rendered) and transferred property rights;
(The subparagraph was additionally included from October 1, 2011 by Federal Law of July 19, 2011 N 245-FZ)
5) the subparagraph was additionally included from October 1, 2011 by Federal Law of July 19, 2011 N 245-FZ; no longer in force on January 1, 2015 - Federal Law of November 24, 2014 N 366-FZ;
6) if the taxpayer, in accordance with the legislation of the Russian Federation, receives subsidies from the federal budget for reimbursement of costs associated with payment for purchased goods (work, services), taking into account tax, as well as for reimbursement of costs for paying tax when importing goods into the territory of the Russian Federation and other territories under its jurisdiction.

Tax amounts are subject to restoration in the amount previously accepted for deduction.

Tax amounts subject to restoration in accordance with this subparagraph are not included in the cost of the specified goods (works, services), but are taken into account as part of other expenses in accordance with Article 264 of this Code.

Reinstatement of tax amounts is carried out in the tax period in which the amounts of the provided subsidies were received.

(The subparagraph was additionally included from October 1, 2011 by Federal Law of July 19, 2011 N 245-FZ)
(Clause as amended, put into effect on January 1, 2006 by Federal Law of July 22, 2005 N 119-FZ.

4. Tax amounts presented by sellers of goods (works, services), property rights to taxpayers carrying out both taxable and tax-exempt transactions:
are taken into account in the cost of such goods (work, services), property rights in accordance with paragraph 2 of this article - for goods (work, services), including fixed assets and intangible assets, property rights used to carry out transactions not subject to tax Additional cost;
are accepted for deduction in accordance with Article 172 of this Code - for goods (work, services), including fixed assets and intangible assets, property rights used to carry out transactions subject to value added tax;
are accepted for deduction or taken into account in their value in the proportion in which they are used for the production and (or) sale of goods (works, services), property rights, transactions for the sale of which are subject to taxation (exempt from taxation), - for goods (works , services), including fixed assets and intangible assets, property rights used to carry out both taxable and non-taxable (tax-exempt) transactions, in the manner established by the accounting policy adopted by the taxpayer for tax purposes, and taking into account features established by paragraph 4.1 of this article.

In this case, the taxpayer is obliged to keep separate records of tax amounts for purchased goods (works, services), including fixed assets and intangible assets, property rights used to carry out both taxable and non-taxable (tax-exempt) transactions. Separate accounting of tax amounts by taxpayers who have switched to paying a single tax on imputed income for certain types of activities is carried out similarly to the procedure provided for in paragraph one of clause 4.1 of this article.

The taxpayer has the right not to apply the provisions of this paragraph to those tax periods in which the share of total expenses for the acquisition, production and (or) sale of goods (work, services), property rights, transactions for the sale of which are not subject to taxation, does not exceed 5 percent of the total amount total expenses for the acquisition, production and (or) sale of goods (works, services), property rights. In this case, all tax amounts presented to such taxpayers by sellers of goods (works, services), property rights in the specified tax period are subject to deduction in accordance with the procedure provided for in Article 172 of this Code.

When calculating the proportion specified in paragraph four of this paragraph, issuers of Russian depositary receipts do not take into account transactions for the placement and (or) redemption of Russian depositary receipts, as well as transactions for the acquisition and sale of represented securities that are related to the placement and (or) redemption of Russian depositary receipts.

(Clause as amended, entered into force on April 1, 2014 by Federal Law of December 28, 2013 N 420-FZ.

4.1. The proportion specified in paragraph four of clause 4 of this article is determined based on the cost of goods shipped (work performed, services rendered), transferred property rights, transactions for the sale of which are subject to taxation (exempt from taxation), in the total cost of goods shipped (work performed, services provided), transferred property rights for the tax period. In this case, the determination of the proportion is carried out taking into account the following features:
1) for fixed assets and intangible assets accepted for accounting in the first or second month of the quarter, the taxpayer has the right to determine the proportion based on the cost of goods shipped in the corresponding month (work performed, services rendered), transferred property rights, transactions for the sale of which are subject to taxation (exempt from taxation), in the total cost of goods shipped per month (work performed, services rendered), transferred property rights;
2) for the purpose of calculating the proportion in relation to financial instruments of forward transactions as the cost of goods shipped (work performed, services rendered), transferred property rights for the tax period:
the cost of financial instruments of forward transactions involving the delivery of an underlying asset, determined according to the rules established by Article 154 of this Code, subject to the shipment (transfer) of the underlying asset of the corresponding financial instruments of forward transactions in the tax period (month);
the amount of net income received by a taxpayer in the current tax period (month) on financial instruments of futures transactions as a result of the execution (termination) of obligations not related to the sale of the underlying asset (including amounts of variation margin and premiums received under the contract), including amounts of cash , which must be received for such obligations in future tax periods, if the date of determination (emergence) of the corresponding right of claim on financial instruments of forward transactions took place in the current tax period (month).

In this case, the amount of net income is the difference between all income received that is not related to the sale of the underlying asset (including the amounts of variation margin and premiums received under the contract) for all financial instruments of futures transactions and all expenses incurred that are not related to the sale of the underlying asset ( including the paid amounts of variation margin and premiums under the contract), for all financial instruments of futures transactions, provided that such a difference is positive. If such difference is negative, it shall not be taken into account when calculating the proportion in accordance with this paragraph;
3) when calculating the proportion, the clearing organization does not take into account transactions with securities, financial instruments of futures transactions, other transactions to which such a clearing organization is a party for the purpose of clearing them, as well as transactions made by the clearing organization in order to ensure the fulfillment of obligations of clearing participants;
4) when determining the cost of services for providing a loan in cash or securities and for repo transactions, transactions for the implementation of which are exempt from taxation, the amount of income in the form of interest accrued by the taxpayer in the current tax period (month) is taken into account;
5) when determining the value of securities, transactions for the sale of which are exempt from taxation:
the amount of income from such sale is taken into account, defined as the total difference between the price of sold securities, determined taking into account the provisions of Article 280 of this Code, and the expenses for the acquisition and (or) sale of these securities, determined taking into account the provisions of Article 280 of this Code, provided that such a difference is positive. If the specified difference is negative, then it is not taken into account when determining the amount of net income;
operations to redeem depository receipts upon receipt of the represented securities and operations to transfer the represented securities when placing depositary receipts certifying the rights to the represented securities are not taken into account;
operations on the issuance and redemption of clearing participation certificates are not taken into account.

(Paragraph additionally included from January 1, 2016 by Federal Law of November 28, 2015 N 326-FZ)
(Clause 4.1 was additionally included from April 1, 2014 by Federal Law of December 28, 2013 N 420-FZ)
5. Banks, insurers, non-state pension funds, trade organizers (including stock exchanges), clearing organizations (taking into account the specifics established by paragraph 5.1 of this article), professional participants in the securities market, management companies of investment funds, mutual funds and non-state pension funds funds, an organization that carries out activities to insure export loans and investments against business and (or) political risks in accordance with Federal Law of May 17, 2007 N 82-FZ “On the Development Bank”, have the right to include in the costs accepted for deduction when calculation of corporate income tax, the amount of tax paid to suppliers on purchased goods (works, services). In this case, the entire amount of tax received by them on transactions subject to taxation is subject to payment to the budget.
(Paragraph as amended by Federal Law of December 29, 2000 N 166-FZ; as amended by Federal Law of August 6, 2001 N 110-FZ; as amended by Federal Law of August 6, 2001 N 110-FZ; as amended by , put into effect on December 31, 2012 by Federal Law of December 30, 2012 N 294-FZ; as amended by Federal Law of June 7, 2013 N 131-FZ; as amended by Federal Law of June 7, 2013 N 131-FZ; as amended by from April 1, 2014 by Federal Law of December 28, 2013 N 420-FZ; as amended by Federal Law of November 28, 2015 N 326-FZ.

A participant in an investment partnership agreement - a managing partner responsible for maintaining tax accounting - has the right to include tax amounts in the costs accepted for deduction when determining for the reporting (tax) period profit (loss) from activities within the investment partnership in accordance with Article 278.2 of this Code , paid to suppliers for purchased goods (works, services). In this case, the entire amount of tax received by the investment partnership on transactions subject to taxation is subject to payment to the budget.

(The paragraph was additionally included from January 1, 2012 by Federal Law of November 28, 2011 N 336-FZ)
5.1. The allocation of tax amounts to the costs of production and sale of goods (work, services) by clearing organizations when they carry out operations to perform the functions of a central counterparty and (or) operator of commodity supplies, as well as when fulfilling and (or) ensuring the fulfillment of obligations admitted to clearing is carried out with taking into account the following features:
1) clearing organizations have the right to accept for deduction in the manner established by Article 172 of this Code:
tax amounts presented by sellers of goods (including those that are the underlying asset of financial instruments of futures transactions) purchased by clearing organizations for the purpose of performing the functions of a central counterparty, as well as for the fulfillment and (or) ensuring the fulfillment of obligations admitted to clearing;
tax amounts presented by sellers of services purchased by clearing organizations for the purpose of performing the functions of a commodity supply operator;
2) deductions of the tax amounts specified in subparagraph 1 of this paragraph are made in the case of the acquisition of goods (services) by the specified clearing organizations only for the implementation of transactions for the sale of goods (services) subject to taxation;
3) the moment of determining the tax base for the sale of goods (including those that are the underlying asset of financial instruments of futures transactions) and (or) services specified in subparagraph 1 of this paragraph is determined by clearing organizations that have exercised the right provided for in subparagraph 1 of this paragraph in the manner provided for in paragraph 1 of Article 167 of this Code;
4) tax amounts paid to sellers of other goods (works, services) not specified in subparagraph 1 of this paragraph are included in the costs accepted for deduction when calculating corporate income tax. In this case, the entire amount of tax received on transactions not related to the clearing organization’s activities for the sale of goods (works, services) specified in subclause 1 of this clause is subject to payment to the budget;
5) clearing organizations that have exercised the right provided for in subparagraph 1 of this paragraph are required to maintain separate records:
the amounts of tax specified in paragraph two of subparagraph 1 of this paragraph;
the amounts of tax specified in paragraph three of subclause 1 of this clause;
tax amounts presented by sellers of other goods (works, services) purchased by clearing organizations;
tax amounts presented by clearing organizations when selling goods specified in paragraph two of subclause 1 of this clause;
amounts of tax presented by clearing organizations when selling services specified in paragraph three of subclause 1 of this clause;
tax amounts presented by clearing organizations when selling other goods (works, services);
6) clearing organizations that have decided to exercise the right provided for in subparagraph 1 of this paragraph reflect this decision in the organization’s accounting policy for tax purposes, approved in accordance with paragraph 12 of Article 167 of this Code, and do not have the right to refuse to use this right within four tax periods periods, counting from the tax period of the beginning of the use of this right;
7) the provisions of paragraphs 4, 4.1 and 5 of this article do not apply to clearing organizations that have exercised the right provided for in subparagraph 1 of this paragraph.

(Clause 5.1 was additionally included from January 1, 2016 by Federal Law of November 28, 2015 N 326-FZ)
6. The clause was deleted from June 30, 2002 by Federal Law of May 29, 2002 N 57-FZ, the effect applies to relations arising from January 1, 2002.

7. Organizations that are not taxpayers or are exempt from fulfilling the duties of a taxpayer, and individual entrepreneurs have the right to include in expenses accepted for deduction in accordance with Chapters 25, 26.1 and 26.2 of this Code the amounts of tax that were calculated and paid by them to the budget in the performance of their duties tax agent in accordance with paragraph 2 of Article 161 of this Code, in cases of return of goods to the seller (including during the warranty period), refusal of them, changes in conditions or termination of relevant contracts and return of advance payments.

(The clause was additionally included from January 1, 2008 by Federal Law of May 17, 2007 N 85-FZ)

Commentary on Article 170 of the Tax Code of the Russian Federation

Amounts of VAT that are presented to the taxpayer when purchasing goods (work, services), property rights or actually paid by him when importing goods into the customs territory of the Russian Federation are not included in the expenses accepted for deduction when calculating corporate income tax (personal income tax ). An exception is the operations listed in paragraph 2 of Article 170 of the Tax Code of the Russian Federation.

Paragraph 2 of Article 170 of the Tax Code of the Russian Federation provides an exhaustive list of cases when the amounts of VAT charged to the buyer when purchasing goods (work, services) are not subject to deduction and reimbursement, but are taken into account in the cost of such goods (work, services). This:
1) operations for the production and sale (as well as transfer, execution, provision for one’s own needs) of goods (work, services) that are not subject to taxation (exempt from taxation);
2) operations for the production and sale of goods (work, services), the place of sale of which is not recognized as the territory of the Russian Federation;
3) transactions exempt from VAT under Art. 145 of the Tax Code of the Russian Federation;
4) operations that are not recognized as the sale of goods (work, services) in accordance with clause 2 of Art. 146 of the Tax Code of the Russian Federation (except for the transfer of property, intangible assets, property rights in the form of a contribution to the authorized capital of another company).

VAT recovery
Paragraph 3 of Article 170 of the Tax Code of the Russian Federation as amended by Federal Law No. 119-FZ of July 22, 2005 states that VAT amounts accepted for deduction on goods (work, services), including fixed assets and intangible assets, property rights , are subject to restoration in the following cases.

1. When transferring property, intangible assets and property rights as a contribution to the authorized (share) capital of business companies and partnerships or share contributions to mutual funds of cooperatives. At the same time, tax amounts for fixed assets and intangible assets should be restored in an amount proportional to their residual (book) value without taking into account revaluation. The receiving organization has the right to deduct the restored VAT. The amount of the restored tax is indicated in the documents that formalize the transfer of the specified property, intangible assets and property rights.

2. When using goods (works, services), including fixed assets and intangible assets, and property rights in transactions that are not subject to VAT. The only exception is the transfer of property and property rights to legal successors during the reorganization of legal entities. It is necessary to restore the amount of VAT that was previously accepted for deduction. However, in relation to fixed assets and intangible assets, the tax is restored, proportional to their residual (book) value without taking into account revaluation. Recovered VAT is taken into account as part of other expenses, which reduce income when calculating income tax. The tax is restored in the tax period in which goods (work, services) and property rights were transferred or begin to be used by the taxpayer to carry out transactions not subject to VAT.

3. When a taxpayer switches to a simplified taxation system or to payment of a single tax on imputed income, the amounts of VAT accepted for deduction are subject to restoration in the tax period preceding the transition to the specified regimes.

Please note that upon transition to payment of a single agricultural tax, VAT is not restored. Federal Law No. 119-FZ of July 22, 2005 does not contain special transitional provisions regarding the restoration of VAT. At the same time, even before the advent of this Law, tax authorities demanded the restoration of VAT in such cases. In doing so, they referred to subparagraph 3 of paragraph 2 of Article 170 of the Tax Code of the Russian Federation. However, the wording of this subclause, which was in force until January 1, 2006, referred to the property that the organization acquired, no longer being a VAT payer. Tax on such property cannot be deducted. But VAT on goods, materials and fixed assets acquired before the transition to a simplified taxation system or the payment of a single tax on imputed income, Chapter 21 of the Tax Code of the Russian Federation did not contain any special clauses. That is why in court proceedings on the problem of VAT restoration, in the vast majority of cases, taxpayers won. As a typical example, let us cite the Resolution of the Federal Antimonopoly Service of the Ural District dated September 22, 2005 N F09-4209/05-S2.

Since January 1, 2006, there has been a special procedure for restoring deductible VAT, which was presented when contractors carried out capital construction of real estate objects, when purchasing real estate (with the exception of aircraft, sea vessels and inland navigation vessels, as well as space objects). It is also necessary to restore the tax calculated when performing construction and installation work for one’s own consumption if the constructed facilities begin to be used for operations not subject to VAT. An exception is made for fixed assets that are fully depreciated or that at least 15 years have passed since the moment they were put into operation for a given taxpayer. VAT is not reinstated on them.

This innovation provides for the restoration of VAT for those buildings that were commissioned before 2006. Therefore, a taxpayer who, from January 1, 2006, begins to use his property in activities not subject to VAT, will have to restore VAT at the beginning of the year.

VAT in this case should be restored at the end of each year for ten years, starting from the year in which the object began to be depreciated.

The amount of VAT subject to restoration is calculated based on 1/10 of the amount of tax accepted for deduction in the corresponding share. This share is determined based on the cost of goods shipped (work performed, services rendered), transferred property rights, not subject to VAT, in the total cost of goods (work, services), property rights shipped (transferred) for the calendar year. The amount of VAT is taken into account as part of other expenses that reduce income when calculating income tax.

It is worth paying attention to the fact that the procedure for VAT recovery in this case is not clearly spelled out. Thus, it is not entirely clear whether the taxpayer should recover VAT for the first few years of depreciation if the building began to be used in an activity not subject to VAT several years after this event. If you answer this question positively, the taxpayer will have to submit updated returns for previous years to the tax office, and in addition, pay penalties on the restored tax.

A different interpretation of the rule on the restoration of VAT on the work of contractors, as well as on construction and installation work performed for one’s own consumption, would be more fair. Let’s say that five years have passed from the moment depreciation on the building began until the organization received a VAT benefit. The total restoration period is 10 years. This means that VAT must be restored within the remaining 5 years of this period. The amount of tax that must be restored in the last tax period of each year is equal to the total amount of VAT on the building, divided by 10, multiplied by the ratio of the cost of goods shipped for the current year (works, services and property rights), which are not subject to VAT, to the cost of all goods (works, services, property rights) shipped during the current year.

It is also not entirely clear from the new norm of the Tax Code of the Russian Federation what value of goods (work, services, property rights) should be taken into account. There are two options. This can be either the book value of goods (the cost of producing work or performing services) or their selling price excluding VAT. The second option seems more correct. Indeed, in Article 154 of the Tax Code of the Russian Federation, the term “cost” is used precisely in the meaning of the selling price.

Separate accounting
The procedure for maintaining separate accounting is set out in Article 170 of the Tax Code of the Russian Federation, according to which the amounts of tax presented by sellers of goods (work, services), property rights to taxpayers carrying out both taxable and tax-exempt transactions:
- are taken into account in the cost of such goods (work, services) in accordance with paragraph 2 of Article 170 of the Tax Code of the Russian Federation - for goods (work, services), including fixed assets and intangible assets, property rights used to carry out transactions not subject to VAT ;
- are accepted for deduction in accordance with Article 172 of the Tax Code of the Russian Federation - for goods (work, services), including fixed assets and intangible assets, property rights used to carry out transactions subject to VAT;
- are accepted for deduction or taken into account in their value in the proportion in which they are used for the production and (or) sale of goods (work, services), property rights, transactions for the sale of which are subject to taxation (exempt from taxation), - for goods ( works, services), including fixed assets and intangible assets, property rights used to carry out both taxable and non-taxable (tax-exempt) transactions.

The specified proportion is determined based on the cost of shipped goods (work, services), property rights, transactions for the sale of which are subject to taxation (exempt from taxation), in the total cost of goods (work, services), property rights for the tax period.

As you can see, the Tax Code of the Russian Federation provides only the most general recommendations on the procedure for maintaining separate accounting.

The organization will have to develop a specific method for organizing separate accounting independently. The developed procedure for maintaining separate accounting of VAT amounts must be enshrined in the order on accounting policies for tax accounting purposes. If this procedure is not fixed by order, the tax authorities may blame you for the lack of separate accounting and recalculate your tax obligations to benefit the budget.

The organization of separate accounting must take into account the specific features of each type of activity of the organization. However, we can also recommend a general procedure for organizing separate accounting using accounting accounts.

For this purpose, the following subaccounts are opened to account 19 “Value added tax on acquired material assets”:
- 19-1 “VAT on goods, works, services used for transactions taxed at rates of 10 and 18%”;
- 19-2 “VAT on goods, works, services used for tax-free transactions”;
- 19-3 “VAT on goods, works, services used for transactions, both taxable and non-taxable.”

Article 170 of the Tax Code of the Russian Federation defines the basis for the distribution of VAT on goods, works, and services that cannot be directly distributed between taxable and non-taxable transactions. The distribution base is taken as the cost of shipped goods (work, services) (both taxable and non-taxable) for the tax period. However, the Tax Code of the Russian Federation does not specify for which tax period it is necessary to take the total cost of shipped goods. Therefore, this point also needs to be established independently and stated in the order on accounting policies.

For the distribution base, you can select the total cost of goods shipped for the previous or current tax period. It is not always convenient to take the current tax period as a base, for example, when a fixed asset used in an activity, both taxable and not subject to VAT, is put into operation, and the commissioning is carried out in the middle of the current tax period, and the total cost of goods shipped ( works, services) in the middle of the month is unknown.

In a similar manner, separate accounting of tax amounts is maintained by taxpayers transferred to pay a single tax on imputed income for certain types of activities.

If the taxpayer does not have separate accounting, the amount of tax on purchased goods (work, services), including fixed assets and intangible assets, property rights, is not subject to deduction and is included in expenses accepted for deduction when calculating corporate income tax (personal income tax). persons) is not included.

The taxpayer has the right not to apply these provisions to those tax periods in which the share of total costs for the production of goods (work, services), property rights, transactions for the sale of which are not subject to taxation, does not exceed 5% of the total total costs of production. In this case, all tax amounts presented to such taxpayers by sellers of goods (work, services) used in the production, property rights in the specified tax period are subject to deduction in accordance with the procedure provided for in Article 172 of the Tax Code of the Russian Federation.

Banks, insurance organizations, non-state pension funds have the right to include in the costs accepted for deduction when calculating corporate income tax the amount of tax paid to suppliers for purchased goods (works, services). In this case, the entire amount of tax received by them on transactions subject to taxation is subject to payment to the budget.

Consultations and comments from lawyers on Article 170 of the Tax Code of the Russian Federation

If you still have questions regarding Article 170 of the Tax Code of the Russian Federation and you want to be sure of the relevance of the information provided, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are held free of charge from 9:00 to 21:00 daily Moscow time. Questions received between 21:00 and 9:00 will be processed the next day.

According to paragraph 4 of Article 170, the Taxpayer has the right not to apply the provisions of this paragraph to those tax periods in which the share of total expenses for the acquisition, production and (or) sale of goods (work, services), property rights, operations for the sale of which are not subject to taxation, does not exceed 5 percent of the total aggregate expenses for the acquisition, production and (or) sale of goods (work, services), property rights. Question: the total amount of total expenses for the acquisition, production and (or) sale of goods are all expenses in the debit of accounts 20 and 44?

To determine the amount of total expenses for acquisition, production or sales for the quarter, you can take into account the turnover for the quarter in accounts 20, 23, 25, 26, 29, 44.

The rationale for this position is given below in the materials of the Glavbukh System vip version

Exemption from separate accounting

It is possible not to distribute “input” VAT only in one case: if during the quarter the share of expenses for the acquisition, production or sale of goods (work, services, property rights), the sale of which is exempt from VAT, does not exceed 5 percent. Then the entire amount of “input” VAT presented by suppliers in this quarter can be deducted. This is stated in paragraph 9 of paragraph 4 of Article 170 of the Tax Code of the Russian Federation. For more information about the need to maintain separate accounting in certain situations, see How to organize separate accounting of transactions subject to and not subject to VAT.

Calculate the share of expenses for the acquisition, production or sale of goods (work, services, property rights), the sale of which is exempt from VAT, using the formula:
Share of expenses for the acquisition, production or sale of goods (work, services, property rights), the sale of which is exempt from VAT = Expenses for the acquisition, production or sale of goods (work, services, property rights), the sale of which is exempt from VAT, for the quarter? 100%

The legislation does not contain a clear answer to this question. Therefore, an organization can develop its own procedure for determining the amount of total expenses and consolidate it in its accounting policies for tax purposes.*

Calculate the share of expenses for the acquisition, production or sale of goods (work, services, property rights) exempt from VAT using the formula:
Share of expenses for the acquisition, production or sale of goods (work, services, property rights) exempt from VAT = Expenses for the acquisition, production or sale of goods (work, services, property rights) exempt from VAT for the quarter? 100%
Total acquisition, production or distribution expenses for the quarter

This is stated in paragraph 9 of paragraph 4 of Article 170 of the Tax Code of the Russian Federation.

Typically, to calculate total expenses, as well as to determine the share of expenses for the acquisition, production or sale of goods (work, services, property rights) exempt from VAT, organizations use accounting data. The legitimacy of this approach is confirmed by the letter of the Ministry of Finance of Russia dated April 1, 2009 No. 03-07-07/26 and arbitration practice (see, for example, the resolution of the FAS of the East Siberian District dated June 7, 2005 No. A74-3752/04-K2 -F02-2489/05-S1).

When using accounting data, determine the share of expenses for the acquisition, production or sale of goods (work, services, property rights) exempt from VAT, taking into account paragraph 7 of PBU 10/99. That is, the calculation must include not only direct, but also indirect costs. This follows from letters of the Ministry of Finance of Russia dated April 22, 2011 No. 03-07-11/106, dated April 1, 2009 No. 03-07-07/26 and the Federal Tax Service of Russia dated November 13, 2008 No. ShS-6-3 /827.*

An example of determining the share of expenses for the acquisition, production and sale of goods (work, services, property rights) exempt from VAT, according to accounting data. The organization is a VAT payer and carries out VAT-taxable and non-VAT-taxable transactions

CJSC Alfa produces and sells medical equipment. Among the goods produced are medical equipment included in the list approved by Decree of the Government of the Russian Federation of January 17, 2002 No. 19. The sale of such medical goods is not subject to VAT (subclause 1, clause 2, article 149 of the Tax Code of the Russian Federation).

To determine whether input VAT can be deducted in full, Alpha’s accountant calculated the share of expenses for the production and sale of goods exempt from VAT in the total amount of expenses.

Alpha’s accounting policy for tax purposes stipulates:

The share of expenses for the production and sale of goods (work, services, property rights) exempt from VAT is determined according to accounting data;
costs for the production and sale of goods (work, services, property rights) exempt from VAT, as well as total costs for production and sale are determined taking into account direct, general and general production expenses;*
If it is impossible to attribute general and general production expenses to a specific type of activity (taxable or exempt from VAT), the amount of general and general production expenses related to the production and sale of products exempt from VAT is determined by the formula:

General and general production expenses related to the production and sale of products exempt from VAT = General and general production expenses that cannot be attributed to a specific type of activity? Direct expenses related to the production or sale of products exempt from VAT: Total amount of direct expenses

To allocate costs for the production and sale of medical equipment, not subject to VAT, corresponding subaccounts have been opened to accounts 20, 23, 29, 44.

For the quarter, the amount of direct expenses amounted to RUB 680,000. (500,000 rubles – for the production and sale of products exempt from VAT, 180,000 rubles – for the production and sale of products subject to VAT).

The amount of overhead costs amounted to 170,000 rubles. These expenses cannot be attributed to a specific type of activity. They are distributed according to the methodology approved in the accounting policy:
170,000 rub. ? 500,000 rub. : 680,000 rub. = 125,000 rub.

The amount of general business expenses amounted to 130,000 rubles. These expenses cannot be attributed to a specific type of activity. They are distributed according to the methodology approved in the accounting policy:
130,000 rub. ? 500,000 rub. : 680,000 rub. = 95,588 rub.

The total cost of production and sales for the quarter amounted to RUB 980,000. (turnovers for the quarter according to accounts 20, 23, 25, 26, 29, 44).*

The share of costs for the production of medical equipment not subject to VAT was:
(400,000 rub. + 100,000 rub. + 125,000 rub. + 95,588 rub.): 980,000 rub. ? 100% = 74%.

Since the share of expenses on transactions not subject to VAT is more than 5 percent, “input” VAT on expenses must be distributed.

Olga Tsibizova, head of the indirect taxes department of the department of tax and customs tariff policy of the Ministry of Finance of Russia

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