Paragraph 13 article 167 of the Tax Code of the Russian Federation. Long-term production: determining the tax base for VAT

This article is the earliest of the following dates:

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

2) day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

Information about changes:

3. In cases where the goods are not shipped or transported, but there is a transfer of ownership of these goods, such a transfer of ownership for the purposes of this chapter is equated to its shipment, except for the case provided for in paragraph 16 this article.

7. When a taxpayer sells goods transferred to him for storage under an agreement warehousing with the issuance of a warehouse certificate, the moment of determining the tax base for the specified goods is determined as the day of realization of the warehouse certificate.

8. When transferring property rights in the case provided for by paragraph 2 of Article 155 of this Code, the moment of determining the tax base is determined as the day of assignment of the monetary claim or the day of termination of the corresponding obligation, in the cases provided for by paragraphs 3 and 4 of Article 155 of this Code - as the day of assignment (subsequent assignment) of the claim or the day of fulfillment of the obligation by the debtor, and in the case provided for by paragraph 5 of Article 155 of this Code - as the day of transfer of property rights.

9. When selling goods (works, services) provided for in subparagraphs 1, 2.1 - 2.8, 2.10, , 3.1, , 9.1 and 12 of paragraph 1 of Article 164 of this Code, the moment of determining the tax base for these goods (works, services) is the last the number of the quarter in which the full package of documents provided for by Article 165 of this Code is collected.

If the full package of documents provided for in Article 165 of this Code is not collected within the time limits specified in paragraph 9 of Article 165 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this Code. article, unless otherwise provided by this paragraph. In the event that the full package of documents provided for in paragraph 5 of Article 165 of this Code is not collected on the 181st calendar day from the date of affixing the mark of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export, re-export or customs transit, the moment of determination the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (date state registration each newly established organization, and in case of reorganization in the form of affiliation - the date of inclusion in a single State Register legal entities records of the termination of activities of each affiliated organization).

In the event of importation into the port special economic zone of Russian goods placed outside the port special economic zone under the customs procedure of export (re-export), or when exporting supplies, the deadline for submission of documents, established by paragraph 9 of Article 165 of this Code, is determined from the date of placement of these goods under the customs procedure of export (re-export) or from the date of declaration of supplies (and for taxpayers who sell supplies for which customs declaration is not provided for by the customs legislation of the Customs Union - from the date of registration of transport, shipping or other documents confirming the export of supplies outside the territory Russian Federation air and sea vessels, ships of mixed (river - sea) navigation).

13. In the event that a taxpayer - manufacturer of goods (works, services) receives payment, partial payment against the forthcoming deliveries of goods (performance of works, rendering of services), the duration of the production cycle of which is more than six months (according to the list determined by the Government of the Russian Federation), the taxpayer that is the manufacturer of the said goods (works, services) has the right to determine the moment of determining the tax base as the day of shipment (transfer) of the said goods (performance of works, rendering of services) if there is a separate accounting of the operations performed and the amounts of tax on the goods (works, services) acquired, in including fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations.

Upon receipt of payment, partial payment by the taxpayer - the manufacturer of goods (works, services) in tax authorities at the same time with tax return a contract with the buyer is submitted (a copy of such a contract certified by the signature of the head and chief accountant), as well as a document confirming the duration of the production cycle of goods (works, services), indicating their name, production time, name of the manufacturer, issued to the specified taxpayer-manufacturer federal agency executive power, carrying out the functions of developing public policy and regulatory legal regulation in the field of industrial, military-industrial and fuel and energy complexes, signed by an authorized person and certified by the seal of this body.

For value added tax

16. When implemented real estate the date of shipment for the purposes of this chapter is the day of transfer of immovable property to the buyer of this property by deed of transfer or other document on the transfer of immovable property.

Official text:

Article 167. The moment of determining the tax base

1. For the purposes of this chapter, the moment of determining the tax base, unless otherwise provided by paragraphs 3, 7 - 11, 13 - 15 of this article, is the earliest of the following dates:

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

2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

2. Has expired. - the federal law dated July 22, 2005 N 119-FZ.

3. In cases where the goods are not shipped or transported, but there is a transfer of ownership of these goods, such a transfer of ownership for the purposes of this chapter shall be equated to its shipment, except for the case provided for by paragraph 16 of this article.

4 - 6. Lost their power. - Federal Law of July 22, 2005 N 119-FZ.

7. When a taxpayer sells goods transferred by him for storage under a warehouse storage agreement with the issuance of a warehouse certificate, the moment of determining the tax base for these goods is determined as the day of realization of the warehouse certificate.

9. When selling goods (works, services) provided for in subparagraphs 1, 2.1 - 2.8, 2.10, 3, 3.1, 8, 9, 9.1 and 12 of paragraph 1 of Article 164 of this Code, the moment of determining the tax base for these goods (works, services ) is the last day of the quarter in which the complete package of documents provided for by Article 165 of this Code is collected.

If the full package of documents provided for in Article 165 of this Code is not collected within the time limits specified in paragraph 9 of Article 165 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this Code. article, unless otherwise provided by this paragraph. In the event that the full package of documents provided for by paragraph 5 of Article 165 of this Code is not collected on the 181st calendar day from the date of affixing the mark of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export or the customs procedure for customs transit when transporting foreign goods from the customs authority at the place of arrival on the territory of the Russian Federation to the customs authority at the place of departure from the territory of the Russian Federation or indicating the placement of processed products exported from the territory of the Russian Federation and other territories under its jurisdiction under the procedure of internal customs transit, the moment of determining the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (the date of state registration of each newly established organization, and in the case of reorganization in the form accession - the date of making an entry in the unified state register of legal entities on the termination of the activities of each affiliated organization).

In the event of importation into the port special economic zone of Russian goods placed outside the port special economic zone under the export customs procedure, or when supplies are exported, the deadline for submission of documents established by paragraph 9 of Article 165 of this Code is determined from the date of placement of these goods under the export customs procedure or from the date of declaration of supplies (and for taxpayers who sell supplies for which customs declaration is not provided for by the customs legislation of the Customs Union - from the date of execution of transport, shipping or other documents confirming the export of supplies outside the territory of the Russian Federation by aircraft and sea vessels, ships mixed (river - sea) swimming).

9.1. In the event that within forty-five calendar days from the moment of transfer of ownership of the vessel from the taxpayer to the customer, the registration of the vessel in the Russian International Register of Ships has not been carried out, the moment of determining the tax base by the tax agent is established in accordance with subparagraph 1 of paragraph 1 of this article.

9.2. For the purposes of this chapter, the moment of determining the tax base for the sale of services provided for in subparagraph 9.2 of paragraph 1 of Article 164 of this Code is the last day of each tax period.

10. For the purposes of this chapter, the moment of determining the tax base for the performance of construction and installation works for own consumption is the last day of each tax period.

11. For the purposes of this Chapter, the moment of determining the tax base for the transfer of goods (performance of work, provision of services) for own needs, recognized as an object of taxation in accordance with this Chapter, is determined as the day of the said transfer of goods (performance of work, provision of services).

12. The accounting policy adopted by the organization for taxation purposes is approved by the relevant orders, orders of the head of the organization.

Accounting policy for taxation purposes, it is applied from January 1 of the year following the year of its approval by the relevant order, order of the head of the organization.

The accounting policy for tax purposes adopted by the organization is mandatory for all separate subdivisions organizations.

The accounting policy for taxation purposes adopted by the newly created organization is approved no later than the end of the first tax period. An accounting policy for taxation purposes adopted by a newly created organization is considered applicable from the day the organization was established.

Paragraphs five - six have lost their force. - Federal Law of July 22, 2005 N 119-FZ.

13. If a taxpayer - a manufacturer of goods (works, services) receives payment, partial payment against the upcoming deliveries of goods (works, services), the duration of the production cycle of which is more than six months (according to the list determined by the Government of the Russian Federation), the taxpayer that is the manufacturer of the said goods (works, services) has the right to determine the moment of determining the tax base as the day of shipment (transfer) of the said goods (performance of works, rendering of services) if there is a separate accounting of the operations performed and the amounts of tax on the goods (works, services) acquired, in including for fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations.

Upon receipt of payment, partial payment by the taxpayer - the manufacturer of goods (works, services), a contract with the buyer (a copy of such a contract certified by the signature of the manager and chief accountant) is submitted to the tax authorities simultaneously with the tax declaration, as well as a document confirming the duration of the production cycle of goods (works) , services), indicating their name, production time, name of the manufacturer, issued to the specified taxpayer-manufacturer by the federal executive body responsible for developing state policy and legal regulation in the field of industrial, military-industrial and fuel and energy complexes signed by an authorized person and certified by the seal of this authority.

14. If the moment of determining the tax base is the day of payment, partial payment for the upcoming supply of goods (performance of work, provision of services) or the day of transfer of property rights, then on the day of shipment of goods (performance of work, provision of services) or on the day of transfer of property rights on account of the payment received earlier, partial payment, the moment of determining the tax base also arises.

15. For tax agents specified in paragraphs 4 and 5 of Article 161 of this Code, the moment of determining the tax base is determined in the manner established by paragraph 1 of this article.

16. When real estate is sold, the date of shipment for the purposes of this chapter is the day of transfer of real estate to the buyer of this property under a deed of transfer or other document on the transfer of real estate.

Lawyer's comment:

In accordance with this article, the moment of determining the tax base depends on the accounting policy adopted by the taxpayer. In accordance with the Regulations on accounting "Accounting policy of the organization" PBU 1/98, the accounting policy of the organization is understood as the set of methods of conducting accounting- primary observation, value measurement, current grouping and final generalization of facts economic activity. PBU 1/98 applies: in terms of the formation of accounting policies - to organizations, regardless of organizational and legal forms; in terms of disclosure of accounting policies - to organizations that publish their financial statements in whole or in part in accordance with the legislation of the Russian Federation, constituent documents or on their own initiative. Branches and representative offices of foreign organizations located in the territory of the Russian Federation can form an accounting policy based on the rules established in the country of location foreign organization if they do not contradict international standards financial reporting. The accounting policy is formed by the chief accountant (accountant) of the organization on the basis of PBU 1/98 and is approved by the head of the organization. The accounting policy for accounting purposes should not be identified with the accounting policy within the meaning of Article 167. The accounting policy for taxation purposes determines the moment when a tax liability arises either as the settlement documents are shipped and presented to the buyer, or as they are received Money.

Article 167 defines the concept of payment for goods (works, services) as the termination of the counter obligation of the purchaser of the specified goods (works, services) to the taxpayer, which is directly related to the supply (transfer) of these goods (performance of works, provision of services). As an exception, the termination of the counter obligation by issuing the buyer-drawer of his own bill is given. The buyer's obligation to pay the price also includes his taking such steps and compliance with such formalities as may be required by contract or law to enable payment to be made (opening stipulated by the agreement letter of credit, provision bank guarantee etc.). The legal consequences of non-fulfillment or improper fulfillment by the buyer of the obligation to pay for the goods sold to him are, according to the Civil Code, that the seller acquires the right to demand from the buyer not only payment for the goods, but also payment of interest for the use of other people's funds accrued on the amount of debt for the entire period of delay payment for goods (). If the goods are not paid for by the buyer due to an unreasonable refusal to accept them, the seller has the right, at his choice, either to demand payment for the goods, or to refuse to perform the contract.

The limitation period is the period for the forced protection of the violated right by filing a lawsuit in court (). Appointment term limitation period is to provide the victim with a strictly defined, but quite sufficient period for the protection of his rights. After the expiration of the limitation period, the victim is deprived of the possibility of compulsory (judicial) protection of his right, but the violated right itself remains. General statute of limitations covering most of the claims of entities civil law, set to three years (). For individual claims, the law may establish special limitation periods - both shortened and longer than the general period (). Thus, in accordance with Article 181 of the Civil Code, a claim for invalidation of a voidable transaction can be brought only within a year from the date of the emergence of the right to claim, and a 10-year limitation period is provided for claims for the application of the consequences of the invalidity of a void transaction. Special (reduced) limitation periods are provided for by transport legislation ().

Article 167 does not determine the moment when the limitation period begins to run, however, based on the provisions of Article 11 of the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other branches of the legislation of the Russian Federation used in the Tax Code are applied in the sense in which they are used in these areas of law. Consequently, the taxpayer, when calculating the limitation periods, has the right to be guided by the provisions of the Civil Code, in particular, Article 200, according to which the moment the limitation period begins to run is determined by the day when the victim found out or should have found out about the violation of his right. It is from this moment that he has the right to sue both in the material and in the procedural sense. In a number of cases, the law directly determines the moment when the limitation period begins to run. For example, for obligations with exactly certain period execution, the limitation period begins to run from the moment this period expires, since both parties are aware of it in advance. The law itself determines the moment of commencement of the shortened limitation periods, in particular in transport obligations.

The limitation period is interrupted, as a rule, by two circumstances: the presentation of a claim in in due course or the commission by the obligated person of actions indicating his recognition of his debt (). In addition, it should be noted that it allows the possibility of restoring the missed limitation period (does not apply to organizations). By virtue of Article 207 of the Civil Code, simultaneously with the expiration of the limitation period, the main claim is automatically considered expired prescription for additional requirements that provide the main thing (pledge, guarantee, etc.). The debtor, who at the same time retained the property of the authorized person, may become its owner in accordance with the rules of acquisitive prescription. It should be noted that the Civil Code prohibits donation transactions (free transfer) between any commercial organizations, unless we are talking about gifts of insignificant value (). The emergence of gratuitous property relations between organizations that have the goal of their activities to make a profit is an exception; from the standpoint of civil law, the resolution of such relations can be used to the detriment of the interests of creditors and public interests.

Paragraph 7 of Article 167 determines the date of sale of goods transferred for storage under a warehouse storage agreement with the issuance of a warehouse certificate. According to the Civil Code this species storage differs in the specifics of the execution of the contract. Warehouse receipts in accordance with Civil Code subdivided into double and simple; they are securities that allow the owners of these documents to carry out the circulation of rights to the goods without moving the goods, which continue to be in the warehouse. A double warehouse receipt is security, consisting of two documents, each of which is also recognized as a security: the warehouse certificate itself and the pledge certificate. A double warehouse certificate is drawn up in compliance with required details and is issued by a specialized organization (warehouse) as evidence of the fact of acceptance for storage of a certain product and the right of the holder of this security to receive the transferred goods personally or to transfer this right to another person with the help of endorsement inscription ().

A simple warehouse certificate is a bearer security, a document of title, which, unlike a double certificate, is a unitary paper carrier certifying the unitary right of the goods owner, the pledge right of the goods owner's creditor and the obligation warehouse. With regard to the moment of determining the tax base for transactions involving the sale by a financial agent of financing services against the assignment of a monetary claim, it should be borne in mind that the monetary claim of the client to the debtor assigned to the financial agent may already exist (when the due date, for example, for shipped goods) or future (when the obligation to pay for the goods has not yet come). When a future claim is assigned, it is considered transferred to the financial agent only after the right to receive specific funds from the debtor arises without any additional registration (). Federal Law No. 57-FZ dated May 29, 2002 introduced very significant changes to paragraph 9 of Article 167 in the part that establishes the moment for determining the tax base for the sale of goods under the customs regime for export, works and services directly related to the production and sale of these goods, as well as works (services) directly related to the transportation (transportation) of goods placed under the customs regime of transit through the territory of the Russian Federation.

If earlier, in case of failure to submit a full package of documents provided for in Article 165 of the Tax Code of the Russian Federation, the date of sale of goods (works, services) was considered the 181st day from the date of placement of goods under the customs regime of export, now the moment of determining the tax base is the day of shipment (transfer) goods (works, services). Paragraphs 1-4 of clause 12 of article 167 establish the procedure for approving and applying accounting policies by organizations. By general rule, the organization must approve the accounting policy before the start of the next calendar year. If this period is missed, the legislator prescribes the application of the accounting policy "on shipment", and this procedure cannot be changed by the organization even if the first in the new calendar year the tax period (month or quarter) has not ended yet. As an exception, a newly created organization is granted the right to approve an accounting policy for the purposes of calculating VAT before the end of the first tax period since the creation of the organization, and this accounting policy is applied from the moment the organization is created.

1. For the purposes of this chapter, the moment of determining the tax base, unless otherwise provided by paragraphs , - , - of this article, is the earliest of the following dates:

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

2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

2. Has expired. - Federal Law of July 22, 2005 N 119-FZ.

4 - 6. Lost their power. - Federal Law of July 22, 2005 N 119-FZ.

8. When transferring property rights in the case provided for in paragraph 2 of this Code, the moment of determining the tax base is determined as the day of assignment of the monetary claim or the day of termination of the corresponding obligation, in the cases provided for in paragraphs 3 and 4 of this Code, as the day of assignment (subsequent assignment) claim or the day of fulfillment of the obligation by the debtor, and in the case provided for by paragraph 5 of this Code - as the day of transfer of property rights.

9. When selling goods (works, services) provided for in subparagraphs 1, 2.1 - 2.8, 2.10, 3, 3.1, 8, 9, 9.1 and 12 of paragraph 1 of this Code, the moment of determining the tax base for these goods (works, services) is the last day of the quarter in which the complete package of documents provided for by this Code is collected.

If the full package of documents provided for by this Code is not collected within the time limits specified in paragraph 9 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this article, unless otherwise provided for in this paragraph. If the full package of documents provided for in paragraph 5 of this Code is not collected on the 181st calendar day from the date of affixing the marks of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export, re-export or customs transit, the moment of determining the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (the date of state registration of each newly established organization, and in the case of reorganization in the form accession - the date of making an entry in the unified state register of legal entities on the termination of the activities of each affiliated organization).

In the event of importation into the port special economic zone of Russian goods placed outside the port special economic zone under the customs procedure for export (re-export), or when exporting supplies, the deadline for submission of documents established by paragraph 9 of this Code is determined from the date of placement of these goods under the customs procedure for export (re-export) or from the date of declaring supplies (and for taxpayers who sell supplies for which customs declaration is not provided for by the customs legislation of the Customs Union - from the date of registration of transport, shipping or other documents confirming the export of supplies outside the territory of the Russian Federation by air and sea vessels, ships of mixed (river - sea) navigation).

9.1. In the cases provided for by paragraphs 6, 6.1 and 6.2 of this Code, the moment of determining the tax base by a tax agent is established in accordance with subparagraph 1 of paragraph 1 of this article.

9.2. For the purposes of this chapter, the moment of determining the tax base for the sale of services provided for in subparagraph 9.2 of paragraph 1 of this Code is the last day of each tax period.

10. For the purposes of this chapter, the moment of determining the tax base for the performance of construction and installation works for own consumption is the last day of each tax period.

12. The accounting policy adopted by the organization for taxation purposes is approved by the relevant orders, orders of the head of the organization.

The accounting policy for taxation purposes is applied from January 1 of the year following the year of its approval by the relevant order, order of the head of the organization.

The accounting policy for taxation purposes adopted by the organization is mandatory for all separate divisions of the organization.

Paragraphs five - six have lost their force. - Federal Law of July 22, 2005 N 119-FZ.

15. For the tax agents specified in paragraphs 4, 5, 5.1 and 8 of this Code, the moment of determining the tax base is determined in the manner prescribed by paragraph of this article.

The provisions of Article 167 of the Tax Code of the Russian Federation are used in the following articles:

The tax base
3. When determining the tax base, the revenue (expenses) of the taxpayer in foreign currency converted into rubles at the exchange rate Central Bank Russian Federation, respectively, on the date corresponding to the moment of determining the tax base for the sale (transfer) of goods (works, services), property rights, established by Article 167 of the Tax Code of the Russian Federation, or on the date of actual expenditure. At the same time, the tax base for the sale of goods (works, services) provided for by paragraph 1 of Article 164 of the Tax Code of the Russian Federation, in the case of settlements for such transactions in foreign currency, is determined in rubles at the rate of the Central Bank of the Russian Federation on the date of shipment (transfer) of goods (performance of work, provision of services).
The procedure for determining the tax base for the sale of goods (works, services)
the duration of the production cycle of manufacturing of which is more than six months, when the taxpayer determines the tax base as such goods are shipped (transferred) (work is performed, services are rendered) in accordance with the provisions of paragraph 13 of Article 167 of the Tax Code of the Russian Federation;
Features of taxation during the reorganization of organizations
6. For the purposes of this chapter, the transfer by a taxpayer of the right to claim to an assignee (successors) upon reorganization of an organization shall not be recognized as payment for goods (works, services). When the right to claim is transferred from the reorganized (reorganized) organization to the successor (successors), the tax base is determined by the successor (successors) receiving (receiving) the right to claim, at the time of determining the tax base in accordance with the procedure established by Article 167 of the Tax Code of the Russian Federation, subject to the provisions provided for in subparagraphs 2 - 4 of paragraph 1 and paragraph 2 of Article 162 of the Tax Code of the Russian Federation.
Tax calculation procedure
4. The total amount of tax is calculated based on the results of each tax period in relation to all transactions recognized as an object of taxation in accordance with subparagraphs 1 - 3 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, the moment of determining the tax base of which, established by Article 167 of the Tax Code of the Russian Federation, refers to the corresponding tax period , taking into account all changes, increasing or decreasing tax base in the corresponding tax period, unless otherwise provided by this chapter.
The procedure for attributing tax amounts to the costs of production and sale of goods (works, services)
3) the moment of determining the tax base for the sale of goods (including those that are underlying asset derivatives financial instruments) and (or) services specified in subparagraph 1 of this paragraph is determined by the clearing organizations that exercised the right provided for in subparagraph 1 of this paragraph in the manner prescribed by paragraph 1 of Article 167 of the Tax Code of the Russian Federation;
Application procedure tax deductions
3. Deductions of the tax amounts provided for in paragraphs 1-8 of Article 171 of the Tax Code of the Russian Federation in relation to transactions for the sale of goods (works, services) specified in paragraph 1 of Article 164 of the Tax Code of the Russian Federation are made in the manner established by this article, at the time of determining the tax base established by Article 167 of the Tax Code of the Russian Federation.

As a general rule, an “advance” VAT must be charged on the prepayment of upcoming deliveries (clause 2, clause 1, article 167 of the Tax Code of the Russian Federation). The seller will issue an invoice and reflect it in the sales book. In the future, on the date of shipment, he will again accrue (now "shipping") tax, at the same time he will receive the right to deduct "advance" VAT (clause 14, article 167, clause 8, article 171, clause 6, article 172 of the Tax Code of the Russian Federation ).

But if we are talking on the sale of goods (performance of work, provision of services), the manufacture of which takes more than six months (long production cycle), a different procedure for determining the VAT base is possible. Which? We will tell you in a consultation, focusing on the nuances of the designated topic. Let's not forget about the other side of the contract.

Special procedure for determining the tax base…

…for special products

Taxpayers - manufacturers goods (works, services), the production of which takes a long (more than six months) period of time, has the right not to pay VAT on the advance payment received. This follows from the norms of paragraph 1 of Art. 154 of the Tax Code of the Russian Federation and par. 1 p. 13 Art. 167 of the Tax Code of the Russian Federation. In this case, an “advance” invoice is not issued and the corresponding entries in the sales book are not made (clauses 1, 2, article 169 of the Tax Code of the Russian Federation, paragraph 3, clause 17 of the Rules for maintaining the sales book). Therefore, the buyer will not be able to claim a VAT deduction from the listed prepayment of the forthcoming delivery.

But we are talking about special products - the list of "long-term" goods (works, services) is defined by the Government of the Russian Federation in Decree No. services (clause 2). For example, solid waste disposal and treatment activities are mentioned here; construction of ships, ships and floating structures, recreational and sports boats; production:

nuclear installations and their components, including for Vehicle;

weapons and ammunition;

radio and television transmitting equipment;

navigational, meteorological, geodetic, geophysical and similar instruments, apparatus and instruments;

tools, equipment and devices used for medical purposes, etc.

Note: in May current year the list has been updated (see Decree of the Government of the Russian Federation of 05.05.2017 No. 527): instead of codes for the now canceled All-Russian Classifier of Products OK 005-93, the names of goods (works, services) are correlated with codes of the All-Russian classifier products by type economic activity(OKPD 2) OK 034-2014 (KPES 2008) and the All-Russian Classification of Economic Activities (OKVED 2) OK 029-2014 (NACE Rev. 2).

The government list, as we see, includes very specific types of work and production. Therefore, most organizations, when receiving an advance payment from a customer under a long-term contract, are required to accrue VAT on this amount, issue an invoice and reflect it in the sales book (clause 2, clause 1, article 167 of the Tax Code of the Russian Federation).

…subject to special conditions

It is possible to apply a special procedure for calculating the tax base only if certain conditions are met. The taxpayer needs (clause 13 of article 167 of the Tax Code of the Russian Federation):

organize separate accounting of ongoing operations and tax amounts on purchased goods (works, services), including fixed assets and intangible assets, property rights used to carry out operations for the production of goods (works, services) of a long production cycle and other operations (para. one);

simultaneously with the tax return submit (paragraph 2):

contract with the buyer (a copy of the contract certified by the signature of the head and chief accountant);

a document confirming the duration of the production cycle of goods (works, services) with an indication of their name, production time, name of the manufacturer, issued to the taxpayer-manufacturer by the federal executive body responsible for developing state policy and legal regulation in the field of industrial, defense - industrial and fuel and energy complexes, signed by an authorized person and certified by the seal of this body.

The Ministry of Industry and Trade of Russia (Minpromtorg) is the same federal executive body.

Thus, in the above regulatory provisions, paragraph 13 of Art. 167 of the Tax Code of the Russian Federation, we are talking about a taxpayer manufacturer who has a document confirming the duration of the production cycle of goods (works, services) (Letter of the Federal Tax Service of Russia dated 12.01.2011 No. KE-4-3 / [email protected]). The document is issued by the Ministry of Industry and Trade in accordance with paragraph 1 of the Regulations and paragraph 10 of the Administrative Regulations.

Tax on prepayment is not accrued - wait with the deduction of "input" and "advance" VAT

So, in order to take advantage of the preference (on the basis of clause 1, article 154 of the Tax Code of the Russian Federation, do not include prepayment for upcoming deliveries of “long-term” products in the tax base), you need to submit the documents specified in clause 13 of Art. 167 of the Tax Code of the Russian Federation.

Note: the validity period of the contract for the application of the preferential procedure for “advance” VAT does not matter (Letter of the Federal Tax Service of Russia dated February 20, 2017 No. SD-4-3 / [email protected]).

But the deduction of "input" VAT on goods (works, services) purchased for the manufacture of such products must be "delayed": it can be declared on the date of shipment or compilation primary document issued to the buyer (carrier), that is, at the time of determining the tax base for VAT. Reason - paragraph 7 of Art. 172 of the Tax Code of the Russian Federation.

Note: taxpayers - manufacturers of "durable" products make VAT deductions in the tax period in which the tax base for the goods (works, services) sold is determined, including after the expiration of three years calculated from the moment the acquisition is taken into account (Letter of the Ministry of Finance of Russia dated June 15, 2015 No. 03-07-11 / 34361).

It is also necessary to reason in relation to the presented by suppliers "advance" VAT. In Letter No. 03-07-11/26333 dated 06.05.2016, specialists of the financial department, referring to the conclusions of the Supreme Court of the Russian Federation (determinations No. 306-KG15-15782 dated 04.02.2016 and No. 301-KG15-16574 dated 20.02.2016), concluded: from a systematic interpretation of the provisions of paragraph 13 of Art. 167 of the Tax Code of the Russian Federation and paragraph 7 of Art. 172 of the Tax Code of the Russian Federation it follows that these norms do not establish any specific types of deductions, the list of which is given in Art. 171 of the Tax Code of the Russian Federation, and also do not provide for various legal regime in respect of VAT paid on the transfer of advances on account of future deliveries of goods used in the manufacture of goods with a long production cycle, and VAT paid on the purchase of such goods (works, services). Taking into account the above, the amounts of VAT on the listed amounts of advance payment (partial payment) of goods (works, services) used by the taxpayer to carry out operations for the production of products with a long production cycle are subject to deduction from the taxpayer applying the norm of clause 13 of Art. 167 of the Tax Code of the Russian Federation, in the manner prescribed by paragraph 7 of Art. 172 of the Tax Code of the Russian Federation, that is, at the time of determining the tax base.

Here is another example - Resolution No. Ф06-15835/2016 dated 21.12.2016 in case No. А12-10935/2016, in which AS PO supported its colleagues: the right to apply for VAT deduction both for purchased goods (works, services) and for advances transferred to the supplier for the purchase of goods intended for use in production with a long production cycle, the taxpayer did not have any in the audited period. The possibility of applying disputed tax deductions, including advances, can only arise in the manner prescribed by paragraph 7 of Art. 172 of the Tax Code of the Russian Federation, namely at the time of shipment of the goods.

Example 1

The organization is engaged in the construction of yachts and motor boats (OKVED code 2 - 30.12 "Construction of pleasure and sports boats").

In January, she received an order in the amount of 30,000,000 rubles; an advance payment of 50% (15,000,000 rubles) was received on the organization's settlement account. The contract sets the deadlines for the completion of works - August of the current year.

To fulfill this contract, the organization purchased goods (works, services), the “input” VAT on which (accumulated on account 19.5.2) amounted to 762,000 rubles. In addition, part of the goods was paid in advance - the organization was presented with an "advance" VAT in the amount of 230,000 rubles.

Accounting policy for the purposes of calculating VAT, the use of the norm of clause 13 of Art. 167 of the Tax Code of the Russian Federation.

The organization does not pay VAT on the received advance, and does not draw up an “advance” invoice.

Based on the results of the first quarter, in the VAT return, the amount received (15,000,000 rubles) will be reflected in line 010 of section. 7 (clause 44.6 of the Procedure for filling out the declaration). Simultaneously with the VAT declaration, the organization will submit:

contract with the buyer (or a copy certified by the signature of the manager and chief accountant);

a document confirming the duration of the production cycle of goods (works, services).

The VAT base in relation to the situation under consideration will arise only on the date of completion of the contract (when signing the work acceptance certificate), that is, in August. Then (in the declaration for the third quarter) the organization will have the right to deduct "input" (762,000 rubles) and "advance" (230,000 rubles) VAT on goods, works, services purchased to fulfill the order. The corresponding invoices are registered in the sales book for the specified .

(Note that VAT deductions for goods, works, services intended for other (if any) activities, the organization, with separate accounting, has the right to apply in a general manner.)

If, according to the declaration, payment of tax is expected, transfers to the budget will be made in equal installments by October 25, November 25, December 25 (clause 1, article 174 of the Tax Code of the Russian Federation).

The advance payment has been received, but there is no document confirming the duration of the production cycle!

In practice, a situation may arise when, at the time of receiving the advance, the seller does not have an opinion from the Ministry of Industry and Trade on the duration of the production cycle due to a delay in its issuance.

In this case, the Federal Tax Service explains, the seller must determine the tax base and charge "advance" VAT (Letter dated 12.01.2011 No. KE-4-3 / [email protected]).

In case of non-compliance with the conditions established by paragraph 13 of Art. 167 of the Tax Code of the Russian Federation, the tax base for VAT is determined based on the amount of the prepayment received, taking into account the tax in accordance with the generally established procedure (Letter of the Ministry of Finance of Russia dated August 30, 2017 No. 03-07-11 / 55511).

Subsequently (upon receiving the conclusion of the Ministry of Industry and Trade), the manufacturer will not be able to adjust the calculated tax by submitting an updated declaration, as reported by the Federal Tax Service in Letter No. ED-4-3 dated 11.10.2011 [email protected]

However, examples judgments cast doubt on the conclusions tax service. Here are some proofs.

Resolution of the AC DO dated July 29, 2016 No. F03-3503/2016 in case No. A04-9371/2015.

The company concluded a state contract with the Ministry of Defense (dated 06/08/2011) for the manufacture and supply of a diving boat for the needs of the ministry, according to which an advance payment of 70,000,000 rubles was received on the organization's settlement account (06/23/2011). On the same day, the company issued an "advance" invoice for the specified amount, including VAT - 10,677,966 rubles. The sales book for the II quarter of 2011 reflects the receipt of prepayment; calculated VAT is included in sect. 3 VAT returns.

The conclusion of the Ministry of Industry and Trade on the duration of the production cycle for the manufacture of goods (works, services) was received on 31.08.2011. In connection with the availability of the relevant document, on 09.10.2011 the company submitted an updated VAT return for the 2nd quarter of 2011, in which it reduced the tax base of the received prepayment for future deliveries by 70,000,000 rubles, as a result of which the amount of VAT payable to the budget was reduced by 10 RUB 677,966

The inspection considered that the company used the right to apply general order the moment of determining the tax base, and the invoice in accordance with the provisions of Ch. 21 of the Tax Code of the Russian Federation is not subject to revocation.

The society went to court and found support there. The court pointed out that when field check the inspection had information about the existing conclusion of the Ministry of Industry and Trade on the duration of the production cycle for the manufacture of goods, the position of the tax authority does not comply with Art. 81, 154, Tax Code of the Russian Federation and in fact deprives the taxpayer of the right to apply a certain procedure for calculating tax. The court declared illegal the contested decision of the inspectorate regarding the additional charge of VAT for the 2nd quarter of 2011, penalties and reduction of the VAT calculated in an overestimated amount for the 3rd quarter of 2011.

Decree of the FAS SZO dated 01/13/2011 in case No. A56-15567 / 2010.

Since the company documented that the duration of the production cycle for manufacturing products sold by it under state contracts dated 01/31/2006 and 02/02/2006 exceeds six months, and documents confirming this circumstance could not be submitted in 2006 to the tax authority for reasons beyond the control of the company , the courts rightfully recognized the decision of the Federal Tax Service Inspectorate on accruing tax penalties to the company as invalid and ordered the tax authorities to return the overcharged amount to the taxpayer.

How to be a buyer?

The buyer will be able to find out what procedure for calculating VAT the seller uses only if the first one has notified him of the presence of the conclusion of the Ministry of Industry and Trade. And if such a notification was received “after…” (in the tax period following the transfer of the advance payment for the forthcoming supply)? Is the buyer, having an "advance" invoice, entitled to claim a VAT deduction?

The answer is positive - yes, it is right.

But then, when a notice is received of the seller's right to apply the exemption from taxation of these advance payments, the tax will have to be restored. In any case, such an indication (with the due date - the tax period in which the notification was received) was given by the Ministry of Finance in Letter No. 03-07-07 / 43 of June 28, 2010.

However, the above recommendation (issued a year earlier) does not fit well with the approach developed (in October 2011) by the Federal Tax Service that the seller (in the described situation) does not have the opportunity to adjust the VAT tax base (Letter No. ED-4-3 / [email protected]).

This is an essential point, since the VAT is built on the principle of mirroring, which (in case of disputes) the judges will pay attention to. Let's fix it in the table.

Salesman	Buyer
In the absence of the conclusion of the Ministry of Industry and Trade
Include the received advance in the tax base, charge "advance" VAT, issue an "advance" invoice	Declares "advance" VAT deductible
When the conclusion of the Ministry of Industry and Trade was received
	There is no obligation to recover VAT
Taking into account the positive judicial practice, corrects (reduces) the tax base	There is an obligation to restore VAT, which was emphasized by the Ministry of Finance (Letter No. 03-07-07 / 43)

However, situations can be different, and the judges' conclusions can be unpredictable. As an example, let us turn to case No. A71-14944/2016. The essence of the dispute is this.

The taxpayer (buyer) transferred an advance payment for the forthcoming delivery and, having received an “advance” invoice, took advantage of the VAT deduction. However, in the next tax period (Q1 2016), he was notified by counterparties (two organizations) that they had received conclusions on the duration of the production cycle for manufacturing goods. One asked to return the “advance” invoice (dated 10/30/2015) without execution, the second - to consider the advance invoice (dated 12/28/2015) invalid.

What did the buyer do? After receiving letters from counterparties about the withdrawal and cancellation of invoices, he did not make the relevant changes to the tax return for the fourth quarter of 2015. The updated one, in which the VAT previously accepted for deduction was restored by making entries in the sales book, was handed over to him for the 1st quarter of 2016.

What conclusion did the court come to? First Instance (Decision Arbitration Court of the Udmurt Republic dated 01/20/2017), referring to the actions of the sellers (it follows from the materials of the case that they were not reflected in the sales books, VAT was not calculated on advances, they were not paid to the budget; erroneously issued advance invoices were withdrawn from the buyer; on the basis of paragraph 13 of article 167 of the Tax Code of the Russian Federation exercised the right to exemption from taxation of advance payments until the date of submission of the tax return for the fourth quarter of 2015), considered that the buyer had an obligation to adjust its tax liabilities for the IV quarter of 2015 by submitting an "update" for the specified period. Thus, the inspectorate's conclusions about the unlawful application of the tax deduction for the fourth quarter are justified.

There are no claims to invoices - they are issued in compliance with the requirements of Art. 169 of the Tax Code of the Russian Federation. But in the presence of letters from sellers about the withdrawal (cancellation) of invoices, this circumstance has no legal significance. And a canceled invoice cannot be a document that serves as the basis for accepting VAT for deduction.

The buyer's arguments (with reference to Letter No. 03-07-07/43 of the Ministry of Finance of Russia dated June 28, 2010) that there were circumstances excluding his liability were rejected by the court. These clarifications are given for other reasons (the seller of the goods upon receipt of the advance payment paid VAT to the budget), therefore, such a letter is not applicable to the situation in question and is not a circumstance excluding the buyer's fault.

As a result, the tax authority issued a decision (dated June 30, 2016) to hold the buyer liable for committing tax offense in the form of additional VAT charges (in the amount of more than 144 million rubles), accrual of interest on tax (more than 4 million rubles) and collection of a fine (10,000 rubles) (taking into account the existing separate lines overpayment and mitigating circumstances).

But the appellate instance (Resolution of the Seventeenth Arbitration Court of Appeal dated 04/19/2017), and later on the cassation (Resolution of the AC UO dated 09/04/2017 No. Ф09-4610/17) took a different position.

The judges came to the following conclusions: the taxpayer had all the documents provided for by the Tax Code of the Russian Federation for the application of tax deductions for the IV quarter on the transferred advance payments; the circumstances of the case, the actions of counterparties (including the facts of non-calculation and non-payment of "advance" VAT for the specified period) do not indicate that the taxpayer has made an error in calculating the tax base and that there are grounds for additional charge of VAT, penalties and fines for this period.

The court did not support the argument of the Federal Tax Service on the groundlessness of the court's reference to the Letter of the Federal Tax Service of Russia No. ED-4-3 / [email protected](Meanwhile, this reflects the situation according to which the seller, on account of the forthcoming delivery of goods with a long production cycle calculated VAT in accordance with the generally established procedure).

As a result, based on the norms of the Tax Code of the Russian Federation (clauses 1 and 3 of Article 168 of the Tax Code of the Russian Federation, clause 1 of Article 169 of the Tax Code of the Russian Federation, clause 12 of Article 171 of the Tax Code of the Russian Federation, clause 9 of Article 172 of the Tax Code of the Russian Federation and clause 13 167 of the Tax Code of the Russian Federation), the court declared the additional charges illegal, and left the IFTS cassation appeal unsatisfied.

Instead of a conclusion

We considered VAT issues related to the sale of products with a long production cycle included in the government list, to which a preferential procedure for determining the tax base can be applied - once on the date of shipment.

However, tax code gives the taxpayer - the manufacturer of "durable" products the right to choose: he can determine the tax base traditionally, that is, according to the earliest of the dates: the day of shipment or the day of prepayment against the upcoming shipment. Having refused the preference, upon receipt of an advance payment, an “advance” VAT is charged, and the deductions of the “input” tax are made in the generally established manner (Letter of the Ministry of Finance of Russia dated 09/01/2016 No. 03-07-11 / 50991).

And one moment. The Tax Code does not contain a ban on changing the already chosen procedure for the moment of determining the tax base in subsequent tax periods (Letter of the Federal Tax Service of Russia dated August 14, 2015 No. GD-4-3 / [email protected]).

If established during tax audit cases of acceptance for VAT deduction by a taxpayer who has taken advantage of the preference provided for in paragraph 13 of Art. 167 of the Tax Code of the Russian Federation, the circumstances that led to the change in procedure must be determined. If it is revealed that this has not been changed, the VAT presented by suppliers is deductible in accordance with the norm of clause 7 of Art. 172 of the Tax Code of the Russian Federation (that is, at the time of determining the tax base).

Otherwise (when a change in the procedure is established), the taxpayer is obliged to pay VAT and penalties for the period in which he exercised the above right.

1. For the purposes of this chapter, the moment of determining the tax base, unless otherwise provided by paragraphs 3, 7 - 11, 13 - 15 of this article, is the earliest of the following dates:

1) the day of shipment (transfer) of goods (works, services), property rights;
2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

2. Has expired. - Federal Law of July 22, 2005 N 119-FZ.

4 - 6. Lost their power. - Federal Law of July 22, 2005 N 119-FZ.

If the full package of documents provided for in Article 165 of this Code is not collected within the time limits specified in paragraph 9 of Article 165 of this Code, the moment of determining the tax base for the specified goods (work, services) is determined in accordance with subparagraph 1 of paragraph 1 of this Code. article, unless otherwise provided by this paragraph. In the event that the full package of documents provided for by paragraph 5 of Article 165 of this Code is not collected on the 181st calendar day from the date of affixing the mark of the customs authorities on the transportation documents, indicating the placement of goods under the customs procedure for export or the customs procedure for customs transit when transporting foreign goods from the customs authority at the place of arrival on the territory of the Russian Federation to the customs authority at the place of departure from the territory of the Russian Federation or indicating the placement of processed products exported from the territory of the Russian Federation and other territories under its jurisdiction under the procedure of internal customs transit, the moment of determining the tax base for the specified works, services is determined in accordance with subparagraph 1 of paragraph 1 of this article. In case of reorganization of an organization, if the 181st calendar day coincides with the date of completion of the reorganization or comes after the specified date, the moment of determining the tax base is determined by the successor (successors) as the date of completion of the reorganization (the date of state registration of each newly established organization, and in the case of reorganization in the form accession - the date of making an entry in the unified state register of legal entities on the termination of the activities of each affiliated organization).

9.1. If, within forty-five calendar days from the date of transfer of ownership of the ship from the taxpayer to the customer, the registration of the ship in the Russian International Register of Ships is not carried out, the moment of determining the tax base by the tax agent is established in accordance with subparagraph 1 of paragraph 1 of this article.

10. For the purposes of this chapter, the moment of determining the tax base for the performance of construction and installation works for own consumption is the last day of each tax period.

12. The accounting policy adopted by the organization for taxation purposes is approved by the relevant orders, orders of the head of the organization.

The accounting policy for taxation purposes is applied from January 1 of the year following the year of its approval by the relevant order, order of the head of the organization.

The accounting policy for taxation purposes adopted by the organization is mandatory for all separate divisions of the organization.

Paragraphs five - six have lost their force. - Federal Law of July 22, 2005 N 119-FZ.

15. For the tax agents specified in paragraphs 4 and 5 of Article 161 of this Code, the moment of determining the tax base is determined in the manner prescribed by paragraph 1 of this article.