The supplier under the contract presents VAT. Under what conditions can input VAT be deductible?

In relation to the payment of VAT, business entities can be payers and non-payers. Suppliers-payers of VAT are obliged to issue invoices, in the presence of which buyers-payers of VAT can accept the amount of input VAT for deduction. Invoices are reflected in the VAT tax accounting registers (Journal of received and issued invoices and the Book of purchases). If the supplier of valuables is not a VAT payer and does not issue invoices, then the buyer-payer of VAT receives these valuables at the rate "Without VAT", and no entries are made in the VAT registers.

In the program, you can specify that the supplier allocates the VAT amount and issues invoices. To do this, use the checkbox "Supplier under the contract presents VAT".

If the checkbox is unchecked, then upon receipt of valuables under this agreement, the rate “Without VAT” will be automatically entered in the receipt documents.

Such deliveries are not reflected in the VAT registers, and the reports “Availability of invoices”, “Analysis of the state of tax accounting for VAT”, “Express check of accounting” do not control the presence of invoices from suppliers.

Note

For suppliers exempt from VAT under Art. 145 of the Tax Code of the Russian Federation and those who issue invoices in accordance with paragraph 5 of Art. 168 of the Tax Code of the Russian Federation, it is recommended to check the box "The supplier under the contract submits VAT." In this case, the amounts at the rate "Without VAT" will be included in the purchase book, and the availability of invoices will be controlled. At the same time, it should be noted that in the receipt document, by default, the VAT rate from the stock list reference book will be set.

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Consultations on working with the 1C program

Suppliers often work under contracts that last for several years. First, the buyer pays an advance, the supplier delivers the goods on schedule, and after a while receives full payment. In this case, according to the law, the supplier needs to do the following with VAT:

• charge VAT on the amount of the advance;
• after the delivery of the goods, charge VAT on the full amount of the contract, together with the advance payment;
• refund VAT from the advance from the state.

Let's take an example. There will be many numbers, but otherwise it does not work.

In March 2017, Karl Marx LLC signed a contract for the supply of pumps to Chistaya Voda LLC.

Contract amount 118,000 rubles: 100,000 rubles and VAT 18,000 rubles.

Pure Water paid an advance payment of 11,800 rubles.

From the advance, Karl Marx must pay VAT: 11,800 * 18/118 = 1,800 rubles.

In February 2018, Chistaya Voda pays for the pumps, paying the remaining 106,200 rubles.

Karl Marx pays VAT on the total amount of the contract: 118,000*18/118 = 18,000 rubles.

From the budget, "Karl Marx" reimburses 1800 rubles, which he paid from the advance.

It turns out that he paid VAT: 18,000 + 1,800 = 19,800 rubles. And then he returned 2124 rubles.

As a result, the company receives 118,000 - 18,000 = 100,000 rubles. This amount was in the contract without VAT.

Everything is clear if the VAT rate has not changed. But from January 1, 2019, it will be 20%. The picture will be like this:

In March 2018, Karl Marx signed an agreement for 18,000 rubles: 100,000 rubles and VAT 18,000 rubles.

In April, Pure Water paid an advance payment of 11,800 rubles.

From the advance "Karl Marx" pays VAT 1800 rubles.

In February 2019, the VAT rate is already 20%. But the amount of the contract remained the same - 118,000 rubles. Pure Water pays the remaining 106,200 rubles.

Karl Marx pays VAT on the total amount of the contract already with the new VAT: 118,000 * 20/120 = 19,666 rubles.

He reimburses from the state 1800 rubles, which he paid from the advance.

Karl Marx receives 118,000 − 19,666 rubles = 98,334 rubles from the deal. This is less than he planned.

It turns out that a company can lose money on a change in the rate if it has entered into an agreement with an advance payment. With the right wording in the contract, this can be avoided.

Incorrect wording in the contract

Companies prescribe the value with VAT in the contract in different ways. I know at least eight variants of wording. The most dangerous is “the cost of 118,000 rubles, including VAT.”

Formulation means:

at 18% VAT → “100,000 rubles for goods and 18,000 rubles for VAT”;

at 20% VAT → "98,330 rubles + 19,670 rubles VAT". True, some lawyers argue and say what should be “100,000 rubles for goods and 20,000 rubles for VAT.”

That is, with an increase in the rate, the company will receive less for the goods.

But it is unlikely to solve the problem, and in court it will be invalid.

Safe wording in a contract

In an ideal world, when the VAT rate changes, the amount in the contract should be automatically recalculated, and buyers should agree with it and immediately sign the contract with the changes. In real life, this almost never happens.

You can come to the buyer, explain the situation and say that the amount in the contract will change. It was 118,00 rubles, and now it will be 120,000 rubles. But not the fact that the buyer will agree with this. He can say: “There are 118,000 rubles in the contract, I will pay that much.” Lawyers are still debating whether such claims would be legitimate.

“The cost is 100,000 rubles. This cost does not include VAT, which is additionally presented by the seller to the buyer in accordance with the requirements of the Tax Code of the Russian Federation at the rate on the date of the invoice.

In this case, there is no indication at what rate the buyer must pay VAT. Will change - must pay according to the one that will be valid at the time of payment under the contract.

Buyer side

Buyers on the general taxation system will most likely not be affected if the amount of VAT in the contract increases. They can deduct this VAT and reduce theirs.

Chistaya Voda signed an agreement for the purchase of pumps. The amount under the contract is 100,000 rubles and VAT. In 2018, this is 118,000 rubles.

He pays for the pumps in 2019, when the VAT rate is already 20%. He must pay 120,000 rubles: 100,000 rubles for pumps and 20,000 rubles for VAT.

For 20,000 rubles, Chistaya Voda declares a VAT deduction and reduces the tax. The company has nothing to lose.

The problem arises when a supplier sells goods to a customer on a simplified basis or on UTII.

"Arkady and sons" buys pumps. According to the contract, this is 100,000 rubles for pumps and VAT.

At the old rate, he would have to pay 118,000 rubles, and at the new rate, 120,000 rubles.

He works on the simplistic. For him, 2000 rubles is just an increase in the cost of the goods he buys.

In the example, the amounts are small, but contracts can be in the millions. Then the additional costs of the company will also be significant.

Erroneous entries litter the database and are stored in intermediate tables of accumulation register totals. This slows down the database.

Often this situation occurs when the “Supplier under the contract submits VAT” flag is set in the reference book “Counterparties Agreements” (it is set by default, and even hidden in a collapsed group of elements), and the invoice for receipt is not entered into the database (for example , if the receipt was without VAT or the supplier was on a simplified basis). This flag can be set in agreements with the type "With suppliers", "With a committent (principal) for sale" and "With a commission agent (agent) for purchase".

The first thing that needs to be done in order to prevent any more movements in the register is to remove the flag “The supplier under the contract presents VAT in the contract, but the program will not allow this if the documents have already been registered under the contract. It is necessary either to cancel the posting of all documents "Receipt of goods and services" under the contract, which can be difficult if the documents are in a closed period, or to bypass the verification mechanism. In the attached processing, the verification mechanism is bypassed.

The next step is to adjust the balances in the accumulation register "VAT Claimed". This can be done by receiving the balances in the “Universal Report” report according to the “VAT Submitted” register with selections by supplier and contract and grouping by invoices. Next, you need to create an "Operation" document and make corrective movements in it. In the attached processing, the adjustment of movements is also implemented.

The processing is presented as an example of a solution to eliminate the cause of the appearance of erroneous entries in the accumulation register "VAT Claimed" and to correct the register balances. However, it is fully functional and can be used to fix the error on production bases.

Fields on the processing form:

Organization- the organization for which you need to make an adjustment.

counterparty- counterparty for which adjustments will be made.

Treaty- the contract of the counterparty, in which the flag "Supplier under the contract submits VAT" is set.

Adjustment date- the date on which the register is checked for errors and on which corrective information will be entered.

Button "Fill in the table according to the register data"- filling in the tabular part with corrective movements.

Button "Clear the flag "Supplier under the contract submits VAT" in the contract"- clears the flag in the contract, even if the contract has already been used in documents.

Case Correction button- writes corrective movements to the register and creates the document "Operation manually".

How to use:

Fill in the fields Organization, Counterparty, Agreement and Adjustment date;

Press the button "Uncheck the box "Supplier submits VAT under the contract" in the contract". A message will be displayed on successful completion. Can be used regardless of case adjustment;

Click the "Fill in the table according to the register" button to view corrective entries;

Press the "Register Correction" button;

To check the result of the adjustment, you can fill out the adjustment table again.

NEW!!!

Added a report that checks availability

The report is designed to search for counterparty agreements with the "Supplier under the agreement submits VAT" flag set, if there are entries in the accumulation register "VAT Submitted" with the VAT rate "Without VAT".

Fields on the form:

Organization- the organization for which the report is being built.

date- the date on which the search for incorrect records is performed.

"Trade: accounting and taxation", 2010, N 2

The VAT payer is obliged to present to the buyer of the goods, in addition to the price, the amount of VAT calculated as a share of such price corresponding to the tax rate. This is the rule from ch. 21 of the Tax Code of the Russian Federation is understandable and well known to everyone without exception. But its application also causes difficulties in a situation where the price of the goods is set in the contract without specifying the inclusion of VAT in it. In the article, read about the tax consequences for counterparties in a situation where the seller was still obliged to charge VAT, but did not do it in a timely manner.

According to paragraphs 1 and 2 of Art. 424 of the Civil Code of the Russian Federation, the execution of the contract is paid at a price established by agreement of the parties, the change of which after the conclusion of the contract is allowed only in cases and on the conditions provided for by the contract, by law or in the manner prescribed by law. The provisions of Ch. 21 of the Tax Code of the Russian Federation require a VAT payer when selling goods in addition to the price of goods being sold, present the appropriate amount of tax for payment to the buyer of these goods (clause 1, article 168 of the Tax Code of the Russian Federation). The above provision of tax legislation is mandatory for the parties to the contract, therefore, the contract itself must comply with it (clause 1, article 422 of the Civil Code of the Russian Federation). Therefore, the seller, who is a VAT payer, is obliged to indicate in the contract for the collection of the amount of VAT from the buyer along with the price of the goods (Resolution of the FAS SKO dated 14.01.2010 N A32-12191 / 2009). In this situation, no disagreements will arise: the buyer knows exactly what amounts he will be charged and that the price of the goods increases by the amount of VAT.

Additional tax charge

In some cases, the price in the contract is set with the clause "excluding VAT". Obviously, the intentional inclusion in the contract of a condition on the price without VAT is supported by certain considerations of the seller, for example, he is exempt from paying VAT under Art. 145 of the Tax Code of the Russian Federation or carries out transactions that are not subject to taxation on the basis of Art. 149 of the Tax Code of the Russian Federation. Also, "simplified" suppliers often resort to this wording in the contract. If the procedure for taxing the seller does not change, there are no problems. However, often after a tax audit it turns out that the seller unreasonably did not charge VAT and did not pay it to the budget. In this situation, the inspectors charge the seller an additional amount of tax in addition to the price of the goods and do not accept his arguments about the application of the estimated rate.

Note! The VAT payer must:

1. calculate tax and pay it to the budget;
2. present the tax payable to the buyer.

The fact is that the list of cases where the VAT rate is determined by calculation is closed and is not subject to broad interpretation (clause 4, article 164 of the Tax Code of the Russian Federation). The obligation to pay VAT is not limited to the transfer to the budget of tax amounts received from buyers (or presented to them). Taxpayers who violated the established Art. 168 of the Tax Code of the Russian Federation, the obligation to present the amount of tax payable to the buyer is not exempt from paying tax to the budget (Resolution of the FAS VVO dated 06.29.2009 N A17-3381 / 2008). They are not entitled to change the tax rate established by the Code or replace it with the estimated rate. The presence or absence in contracts of conditions on the inclusion of VAT in the total price of goods, by virtue of the provisions of the Tax Code of the Russian Federation, does not affect the taxpayer's obligation to calculate the amount of tax from the proceeds received from the sale of these goods (Resolutions of the FAS PO dated 07.05. dated 04.09.2008 N KA-A40 / 8324-08, FAS ZSO dated 02.05.2007 N F04-2062/2007 (33287-A27-14)). VAT, like any other tax, is paid at the expense of the taxpayer's own funds (see clause 1, article 8 of the Tax Code of the Russian Federation, Definition of the Constitutional Court of the Russian Federation of May 12, 2005 N 167-O). Only by proving that the tax was included in the contract price, the seller is entitled to claim the application of the estimated rate. This statement is true, in particular, for the sale of goods to the population at retail prices (clause 6 of article 168 of the Tax Code of the Russian Federation, Decree of the Federal Antimonopoly Service of the Central Organ of August 26, 2008 N A48-5068 / 07-18). When goods are sold under a supply contract, invoices are the only proof of the inclusion of VAT in the price of the contract.

Thus, if the price of the goods is set without VAT in the contract and the tax was not presented to the buyer, and later it turned out that the sale of the goods should be taxed, then the seller is obliged to charge VAT on the price of the goods sold.

Source of VAT calculation

So, you can't argue with the duty of the taxpayer to charge tax and pay it to the budget. It remains only to find the source of the tax. We offer three options to choose from:

• change the price of the contract, keeping the total amount of the buyer's payment;
• collect VAT from the buyer in excess of the price established by the contract;
• pay taxes with their own funds.

Let's consider these options in more detail.

Changing the terms of the contract

Some experts give sellers the following advice: offer the buyer to amend the already executed contract in terms of price adjustment, namely, reduce the price and additionally indicate VAT. Thus, the buyer will not have to pay anything extra, and the seller will not have to transfer tax to the budget at his own expense. However, this option should not be considered unequivocally beneficial for both parties to the transaction. Indeed, civil law allows the parties to change the terms of the contract (clause 1, article 450 of the Civil Code of the Russian Federation), without limiting the moment of making changes (before the fulfillment of the obligation or after its termination). However, a change in the price of goods entails negative consequences and certain inconveniences for both the buyer and the seller. Changing the terms of the contract means the need to make changes to primary documents (waybills, invoices), as well as to accounting and tax reporting. For the seller, this means a decrease in income from sales (and a possible loss), but since the mistake made led to the excessive payment of income tax, its correction is allowed in the current period (paragraph 3, clause 1, article 54 of the Tax Code of the Russian Federation as amended by the current since 2010). At the same time, the seller will have to answer to the fullest extent for VAT arrears. In turn, for the buyer, a price reduction and the appearance of an "input" tax on purchased goods mean the need to reduce the costs taken into account when calculating income tax earlier, therefore, there is an obligation to pay arrears to the budget, pay penalties, and submit an updated declaration. The deduction of the "input" tax on the corrected invoice can be applied in the period of receipt of the corrected invoice<1>. Therefore, it is obvious that the buyer is unlikely to voluntarily agree to a change in the price of the goods. Most likely, a counterparty who is not a VAT payer, including the "input" tax in expenses, can go to the "transaction".

<1>See the article by E.V. Ermolaeva "The right to deduct VAT depends on the supplier", N 12, 2009.

Example 1. The organization applies the traditional taxation system and carries out both taxable and non-taxable transactions for the sale of goods. In January 2010, the sales manager mistakenly entered into an agreement and processed the shipment of a consignment of goods, the sale of which is subject to VAT in the general manner, excluding tax. In the same month, the goods were shipped and paid for. The total cost of the goods amounted to 400,000 rubles. excluding VAT, cost price - 310,000 rubles. In April, when compiling the tax return for the 1st quarter of 2010, the accountant discovered an error.

The sales manager turned to the buyer with a proposal to revise the terms of the contract (the price is 400,000 rubles, including VAT - 61,017 rubles). The buyer using the USNO agreed and received new copies of the contract and primary documents.

In the accounting of the seller, the following entries will be made:

Collection of tax from the buyer

Meanwhile, an analysis of the established arbitration practice allows the seller to be encouraged: he has the right to recover from the buyer the amount of VAT in addition to the price of the goods, even if there was no mention of the tax in the contract and the VAT amount was not presented to the buyer initially.

So, in paragraph 15 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.24.2000 N 51 "Review of the practice of resolving disputes under a construction contract" it is indicated: value added tax is collected in excess of the price of work, if it was not included in the calculation of this price. This conclusion was made during the period of validity of the Law of the Russian Federation of 06.12.1991 N 1992-1 "On value added tax", in accordance with paragraph 1 of Art. 7 of which the sale of goods to enterprises is carried out at prices (tariffs) increased by the amount of VAT. A similar provision was contained in paragraph 9 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 10.12.1996 N 9 "Review of judicial practice in the application of legislation on value added tax", but in relation to the sales contract. However, this item was excluded from the Information Letter due to changes in legislation. Meanwhile, and during the period of action of Ch. 21 of the Tax Code of the Russian Federation (according to which VAT is presented for payment in addition to the price), the arbitrators are guided by the position of the Supreme Arbitration Court set out in the Information Letter of 01.24.2000 N 51 (Resolutions of the FAS UO of 09.10. .2008 N F10-2015/08, FAS ZSO dated 15.04.2008 N F04-2091/2008 (2579-A75-16)). Despite the fact that the jurisprudence mainly concerns the relationship between the contractor and the customer, it can be fully extended to other contracts, in particular to the supply contract (Resolution of the Federal Antimonopoly Service of the Far East of July 17, 2009 N F03-3247 / 2009).

Special opinion. The author has only one example at his disposal, when the arbitrators refused the contractor to claim the amount of VAT from the customer in excess of the contractual price of the work (Resolution of the FAS VVO dated 06.29.2009 N A17-3381 / 2008). According to the court, it is possible to recover VAT only if the contractor was originally a VAT payer and intended to receive the VAT amount from the buyer. In a disputable situation, at the time of the conclusion of the contract, the organization paid a single tax, and on the date of acceptance of the work, it lost the right to apply the simplified taxation system.

The conclusions of the arbitrators, presented in the motivational parts of the judicial acts, do not allow one to unambiguously qualify the amount of VAT to be paid in addition to the price of the goods. On the one side, the obligation of the buyer to pay VAT arises on the basis of the norms of tax legislation, the amounts of VAT are not recognized as an integral part of the price of goods. Thus, the courts collect VAT amounts in excess of the price, even from customers under a state contract. And as you know, the price of a state contract is an essential condition of the contract, is firm and cannot be changed (clause 4.1 of article 9 of the Federal Law of July 21, 2005 N 94-FZ). The arbitrators note that the requirement to recover the amount of VAT from the customer is not a requirement to increase the price of the work itself (Resolution of the FAS SKO dated 14.01.2010 N A32-12191 / 2009). The collected amount of VAT is not recognized as the cost of work, but is subject to collection from the customer by virtue of a direct indication of tax legislation (Resolutions of the FAS SZO dated November 30, 2009 N A05-3740 / 2009, FAS SKO dated October 21, 2008 N F08-5599 / 2008, dated 08.10. 2008 N Ф08-5595/2008). The amount of VAT is presented to the buyer precisely in addition to the price of the goods, therefore, no overpricing in this case occurs (Resolution of the Federal Antimonopoly Service of the Moscow Region dated 04.09.2008 N KA-A40 / 8324-08).

On the other side, the obligation of the buyer to pay for the goods at the price increased by VAT is civil law, arises from the buyer to the seller on the basis of a sales contract. This was clearly indicated by the Presidium of the Supreme Arbitration Court in the Decree of September 22, 2009 N 5451/09<2>: the inclusion by the seller in the price of the sold goods payable by the buyer of the amount of VAT follows from the provisions of paragraph 1 of Art. 168 of the Tax Code of the Russian Federation, which are binding on the parties to the agreement by virtue of paragraph 1 of Art. 422 of the Civil Code of the Russian Federation, and reflects the nature of the named tax as indirect. Therefore, presented to the buyer for payment the amount of VAT is part of the price for the company payable to the seller under the contract. The buyer does not enter into relations with the state as a subject of public law tax relations, therefore the conclusion of the courts about the public law nature of VAT as part of the price of goods sold cannot be considered justified. In the Decree of the Federal Antimonopoly Service of the SZO dated February 24, 2009 N A21-2586 / 2008, it was concluded that the customer's refusal to pay the amount of VAT presented by the contractor for payment in addition to the price is the basis for withholding the result of the work (Articles 359, 360, 712 of the Civil Code of the Russian Federation ). In addition, the supplier has the right to recover from the buyer the VAT amounts that were not initially presented only within the general limitation period (Resolution of the FAS GUS of August 25, 2009 N A78-282 / 09).

<2>For more details, see the article by E.V. Sholomova "We consider the penalty for late payment", N 1, 2010.

According to the author, the buyer's obligation to pay VAT is an integral part of the obligation to fulfill the obligation properly, that is, to pay for the goods (clause 1, article 486 of the Civil Code of the Russian Federation). In the contract, the price can be specified both including VAT and without it. Moreover, in the latter case, it is understood that, due to the imperative requirements of tax legislation, the seller-taxpayer will charge VAT on top and present another amount for payment to the buyer. However, this cannot be qualified as a change in the price of the contract, since by default any price must be increased by the amount of VAT (regardless of the presence of a special clause in the contract). This can be seen especially clearly when comparing the price under the supply contract and the retail price. So, if in the general case VAT is presented for payment in addition to the price of the goods (clause 1 of article 168 of the Tax Code of the Russian Federation), then when goods are sold to the population at retail prices, the amount of VAT is included in the indicated prices (clause 6 of article 168 of the Tax Code of the Russian Federation). As explained by the FTS employees in the Information letter dated 05.06.2009 N NB-3768/12 "On the inclusion of VAT in the payment for technological connection", the cost of services for organizations, individual entrepreneurs and citizens will be the same, and the procedure for presenting the amount of VAT to these buyers for payment will be different . In other words, in retail trade all prices include VAT, and in wholesale trade they can be defined in two ways (excluding VAT and including VAT). However, the norms of civil law do not separate the price for the population and the price for organizations; such a distinction exists only in tax law. Therefore, having discovered the price of the goods without VAT in the supply contract, the buyer must be prepared to pay additional VAT in excess of the price for another three years.

Guide to action.

• If the supplier indicated the price without VAT in the draft contract, it is advisable to clarify the reason and obtain documentary evidence of the absence of VAT in the cost of goods.
• If the reason is the supplier's application of a tax benefit, you should independently assess the legality of its application.
• You must always be ready to pay extra VAT on top of the price (within three years from the date of shipment).

Example 2. Let's use the conditions of example 1. Suppose that the management of the organization has decided to demand from the buyer the amount of VAT in excess of the price of the goods.

The supplier organization will issue business transactions as follows:

Tax from own funds

It is possible that the seller, for some reason, does not present VAT to be paid to the buyer in addition to the price of the goods specified in the contract without taking into account the tax (for example, he does not want to harm his reputation, he values ​​cooperation with a specific buyer). In this case, the amounts of accrued VAT form the taxpayer's own expenses, but only in accounting. For the purposes of taxation of profits, it will not be possible to take into account such costs. The fact is that paragraph 19 of Art. 270 of the Tax Code of the Russian Federation prohibits including in the calculation of the tax base the amount of taxes presented in accordance with the Tax Code of the Russian Federation by the taxpayer to the buyer (acquirer) of goods (works, services, property rights), unless otherwise provided by the Tax Code. The considered amounts of VAT should have been presented to buyers (clause 1, article 168 of the Tax Code of the Russian Federation). The fact that the seller did not actually present the additional tax amounts to the buyers of the goods does not mean that they are not subject to the provisions of paragraph 19 of Art. 270 of the Tax Code of the Russian Federation (Resolution of the FAS MO dated May 21, 2009 N KA-A40 / 4466-09-2). The Decree of the FAS SZO of 09.04.2009 N A66-7165/2008 also concluded that when calculating profits, not only the VAT paid by the taxpayer to the supplier when purchasing the goods, but also the VAT paid by the taxpayer at his own expense is not taken into account instead of the buyer's funds.

In turn, the Ministry of Finance indicated that an exhaustive list of grounds on which VAT amounts can be included in expenses is presented in Art. 170 of the Tax Code of the Russian Federation. The expenses of the organization for the payment to the budget of VAT on the work performed, not presented by organizations to buyers (customers) and, accordingly, not paid by buyers (customers) to organizations for the work performed by them, are not provided for in the mentioned norm. In this regard, these expenses are not taken into account when calculating taxable income (Letter dated 07.06.2008 N 03-07-11/222).

Example 3. Let's use the conditions of example 1. Suppose that it was decided not to contact the buyer, but to pay VAT to the budget at the expense of the organization's own funds.

The company's accounting entries will be as follows:

* * *

Let's summarize. An organization that is a VAT payer and carries out taxable transactions is obliged to accrue VAT and pay it to the budget. The indication in the supply contract of the price of the goods excluding tax, while the seller has an obligation to pay VAT, creates difficulties not only for the accounting department, but also for the sales service. Sales managers will have to determine the tactics of interaction with the buyer: change the terms of the contract on the price by extracting the amount of VAT from it, present the buyer with an additional VAT invoice for payment, or pay the tax at their own expense. Based on the information received, the accountant will have to make entries in the accounting, but it will be necessary to pay VAT to the budget in any case.

E.V.Emelyanova

Journal Expert

"Trade:

Accounting

and taxation"

Purchases from those who apply the "simplification" or are exempt from VAT often cost more than the contract price. After shipment, the seller may lose the right to special treatment or exemption, or find that he used them illegally. Then he will be obliged to pay VAT on the goods delivered to you and, which is very likely, will try to present it to you for payment and even collect it through the courts. A special clause in the contract will relieve you of such claims.

VAT that was not

VAT is a tax that can be collected from a company not only by tax authorities, but also by its counterparties. The thing is that the legislation prescribes that it be presented to the buyer for payment in addition to the transaction price (clause 1, article 168 of the Tax Code). And if the seller did not immediately do this, and later found out that he had to add tax to the price, he will try to collect additional VAT from the buyer.

This is possible if, at the time of shipment, the supplier incorrectly determined the amount of VAT presented to you as a buyer, mistakenly considered himself a non-payer of this tax, or really had the right not to pay it, but soon lost this right.
You can check the calculation of the tax presented to you by the seller - VAT payer. But to find out whether your supplier actually has the right to the special regime applied by him (or whether he has an exemption from VAT), the buyer is not able to. Meanwhile, regarding the existence of this right, he can simply be mistaken. Sooner or later, the tax inspectorate will check with him and charge him additional VAT, including on your transaction with him. Here, sellers usually immediately remember that VAT is an indirect tax, and try to recover its amount from the buyer.

However, this often happens without any error on the part of the seller. The situation when he legally uses the special regime, and eventually discovers that he has been a payer of "general" taxes for quite a long time, is directly laid down in the Tax Code.

The seller will lose the right to pay a single tax, for example, if he opens a branch, if his revenue or the value of fixed assets and intangible assets exceed the limits established for "simplification", if, as a result of the sale of a share of the authorized capital, the participation of organizations in it will be more than 25 percent, etc. d. (clauses 3 and 4 of article 346.12 and clause 3 of article 346.14 of the Tax Code). The law obliges those who have lost the right to apply the "simplified tax" to switch to general taxes not at the moment of violation of the conditions for applying the special regime, but from the beginning of the quarter in which this happened (clause 4.1 of article 346.13 of the Tax Code). If a firm operating under a simplified system, for example, opens a branch in March, it will be required to pay general taxes on all its shipments starting in January. Those who have long ago settled with such a company for the January shipments will receive a demand from it to pay an additional 18 percent to the contract price.

The same risk is laid down by the Tax Code, and providing exemption from VAT under Article 145. The right to exemption is considered lost from the beginning of the month in which the proceeds exceeded the maximum volume, or if there was a sale of any of the excisable goods (p. 5 article 145 of the Tax Code).

The supplier may also be mistaken about his right to the 10% VAT rate. Of course, it is often in the power of the buyer to dispel this misconception by looking at the Tax Code. However, sometimes it is not so easy to determine whether or not the shipped product (work performed, service) is covered by the preferential rate. In addition, the tax authorities may have their own opinion on this issue.

In the situation under consideration, the seller will want to receive additional tax from the buyer, which, in general, is logical. Otherwise, VAT will turn for the supplier from an indirect tax into a turnover tax. But the buyer is not to blame for the fact that the counterparty made a mistake or lost the right to a special regime. The offer to pay an additional 18 percent is an unpleasant surprise, despite the possibility to claim this amount for deduction. Indeed, when deciding on the purchase of goods, the buyer expected to pay the amount specified in the contract, and no more, and proceeded, among other things, from certain tax consequences for himself. However, if the buyer decides to argue, the court is unlikely to support him - arbitration practice develops in favor of unlucky suppliers.

Pay what is due

The essence of litigation on the collection of VAT by suppliers from buyers boils down to resolving two issues. First, what is the seller's VAT - part of the contract price or tax? Secondly, what is the obligation of the buyer to pay the amount of VAT presented to him - civil law or tax (public, as lawyers say)?

If we assume that this obligation is from the sphere of civil legal relations, and VAT is part of the contract price, we come to the conclusion that the buyer is not obliged to pay the seller extra VAT that was not originally specified in the contract. After all, otherwise it would mean a unilateral change in the price agreed upon by the parties, and this is unacceptable (clause 2 of article 424, 450 of the Civil Code).

Having accepted the second point of view, we get that the relationship between the parties regarding VAT is fully regulated by the Tax Code, and the terms of the contract that contradict it are invalid (Articles 422, 168 and 180 of the Civil Code). Therefore, the buyer is obliged to pay VAT, which the seller presented, albeit belatedly, but legally. The fact that one party misled the other when concluding the contract does not matter. After all, the wording of the agreement concerning the tax is not important - the tax legislation has priority over them. And VAT is not part of the contractual value of the goods and must be paid to the seller by virtue of a direct indication of the law.
Opponents of this position argue that tax legal relations arise only between the taxpayer and the state, and between two taxpayers they are impossible. And VAT in relations between the buyer and the seller is not a tax (as Art. 8 of the Tax Code defines it), since it can only be a tax for its payer - the seller. However, these arguments usually do not find support in the courts.

The arbitration practice of recent years more often recognizes: when the Tax Code obliges the supplier to present VAT to the buyer, the latter must pay it, even if the tax was not initially specified in the contract, including due to the seller's use of "simplification" (see, for example, the decisions of the FAS of the East Siberian District of September 17, 2004 N A33-2354 / 04-S1-F02-3741 / 04-S2 and of March 15, 2007 N A58-3666 / 06-F02-1228 / 07, North-Western District dated September 12, 2007 A05-11366 / 2006-28 and dated November 30, 2009 N A05-3740 / 2009, Volga-Vyatka district dated August 14, 2008 N A28-2940 / 2008-121 / 4, North Caucasian District of October 8, 2008 N F08-5595 / 2008, West Siberian District of April 15, 2008 N F04-2091 / 2008 (2579-A75-16)).

The courts recognize the right of the seller to recover the "discovered" VAT from the buyers even if the inspectorate charges it additionally during the check, for example, recalculates transaction prices at market prices (Decrees of the Federal Antimonopoly Service of the Moscow District dated May 21, 2009 N KA-A40 / 4466-09 -2, North-Western District of April 23, 2007 N A05-10962 / 2006-28).

Some consolation to the buyer will be the fact that by paying the supplier of VAT, you can deduct its amount. However, invoices in this case will be issued later than five days after shipment, which is fraught with tax claims for deduction. True, the courts several times pointed out the legitimacy of the deduction (decisions of the FAS of the North-Western District of September 12, 2007 N A05-11366 / 2006-28 and of April 23, 2007 N A05-10962 / 2006-28, FAS of the East Siberian district dated September 17, 2004 N A33-2354 / 04-C1-F02-3741 / 04-C2). However, if your company is not a VAT payer, then it does not need a deduction - except to write off the tax presented as expenses.

Sometimes you can’t even count on a consolation deduction. It happens that suppliers catch on and present a tax to the buyer only after more than three years after shipment. This usually happens when VAT is additionally charged to the supplier by the inspectorate based on the results of an on-site inspection for the last three years. Then the seller spends a lot of time on unsuccessful trials with inspectors, and only then does he begin to collect VAT from the buyer. Meanwhile, the statute of limitations for the return of overpayments on taxes, and hence for the application of newly discovered deductions, is three years (clause 7, article 78 of the Tax Code).

Price with switch

Once and for all, you can protect yourself from such claims on the part of the supplier by formulating the price clause in contracts with those who use special regimes and exemption from VAT in a special way. Usually, in contracts with such suppliers, this tax is not mentioned at all, or they indicate: "Without VAT" or "VAT is not subject to tax." If later it turns out that according to the law the seller was obliged to present VAT, then the courts consider such provisions of the contract null and void as contrary to the law (Articles 422, 168 and 180 of the Civil Code). It costs nothing for the supplier to prove that the buyer is obliged to pay additional VAT to the price specified in the contract.

Therefore, the condition on the price should be formulated in such a way that in which case it turns out that it already includes a possible VAT. This can be done by specifying in the contract that if the seller loses the right to "simplified" or exemption from VAT, the price is automatically reduced to 84.75 percent of the original. The remaining 15.25 percent is converted into VAT. Such a condition in the contract, without changing the amount due from the buyer, will automatically add VAT to it if the seller suddenly finds out that at the time of delivery he was a payer of this tax. As a result, it turns out that the buyer has already paid the tax presented and does not owe the seller anything more.

To do so allows paragraph 2 of Article 424 of the Civil Code. It allows changes in the price of the contract after its conclusion in cases stipulated, among other things, by the contract itself.
By the same principle, you can make a condition on the price in cases where you are not sure that the seller is legally charging VAT at a preferential 10% rate, or there are suspicions that he is illegally using the VAT exemption. If, as a result of a tax audit, it turns out that he was wrong, it will turn out that you have already paid him VAT at the full rate.

For the supplier, the introduction of such a condition into the contract will be quite fair, because the change in his status from a non-payer of VAT to the opposite one occurs through his fault: it is he who can exceed the maximum revenue allowed for "simplification", open a branch, or be mistaken about having the right not to pay VAT. Moreover, such a condition is even beneficial for the seller: being forced to "retroactively" charge VAT, he will do it with a lower cost of goods, which means that the amount of tax payable will be less.

2. Contract price.

2.1. The price per unit of goods is 100 rubles. VAT is not charged due to the seller's application of the simplified taxation system in accordance with Chapter 26.2 of the Tax Code (the seller's use of the VAT exemption in accordance with Article 145 of the Tax Code).

2.2. The parties agreed that if the seller, who was not recognized as a VAT taxpayer (exempted from VAT in accordance with Article 145 of the Tax Code) at the time of the conclusion of this agreement, subsequently has a basis for presenting VAT to the buyer in accordance with paragraph 1 of Article 168 of the Tax Code or for collection of the amount of VAT from the buyer, then:
1) the price of goods (works, services) sold, property rights transferred, specified in this contract, is reduced to 84.75 rubles. per unit of goods excluding VAT. VAT at the rate of 18 percent per unit of goods is 15.25 rubles;
2) the seller is not entitled to require the buyer to pay the amount of VAT in excess of that specified in the contract, and the buyer is not obliged to pay the amount of VAT in excess of that specified in the contract;
3) the seller is obliged, within 5 days from the moment of the occurrence of the circumstances specified in the first paragraph of paragraph 2.2 of this agreement, to draw up in accordance with the requirements of Article 169 of the Tax Code and transfer to the buyer an invoice for all goods delivered under this agreement. For violation of this obligation, the seller is obliged to pay the buyer a fine of 15.25 rubles. from each item delivered.

Unexpected deduction

By converting part of the contract price paid to the seller into VAT in this way, you will be able to freely claim the deduction. This requires the seller to notify you of the changes in his tax status, and also to draw up and send you an invoice with VAT allocated. It is unlikely that he will do this of his own free will, so such a duty should be included in the contract. It is also not bad to provide for a fine for non-compliance with this condition, since the authors of the Tax Code forgot to do this.

However, first it is worth assessing the tax consequences of an unexpected deduction. It is possible that it will be more profitable to remain in the "ignorance" about the seller's obligation to pay VAT on the goods delivered to you, and ignore the deduction. After all, obtaining an invoice with VAT will require accounting adjustments and recalculation of income tax, since the input tax was previously written off as expenses as part of the cost of purchased goods. As a result, there may be an income tax arrears, for which penalties will have to be paid.

Even if the deduction "covers" the increase in income tax and penalties, as well as the cost of correcting accounting, it is not yet a fact that the tax authorities will so easily allow them to be used. They are convinced that a seller who has "flown" from a "simplified" system should not issue invoices for his sales from the beginning of the current quarter (letter of the Federal Tax Service dated February 8, 2007 N MM-6-03 / [email protected]).

The tax authorities refer to the fact that the invoice must be issued within five days from the date of shipment (clause 3 of article 168 of the Tax Code), and later, they say, this cannot be done. However, the Tax Code does not contain such a prohibition. In addition, this year, a clarification appeared in paragraph 2 of Article 169 of the Tax Code: errors in invoices that do not prevent tax authorities from identifying the seller, buyer, rate and amount of tax cannot be grounds for refusing to deduct errors in invoices. Obviously, violation of the five-day period does not interfere with any of the above. The same paragraph states that the refusal to deduct will entail only those defects in the invoice that are associated with failure to comply with the requirements of paragraphs 5 and 6 of this article. And the rule of "five days" is established by a completely different article - the 168th. As you can see, the Tax Code does not prevent an unexpected deduction, but you may have to get it through the courts. Taxpayers have managed to do this more than once (see, for example, the resolutions of the FAS of the East Siberian District of February 28, 2006 N A19-12094 / 05-33-Ф02-618 / 06-С1, of the North-Western District of January 13 2006 N A56-31806/04).

Note. Tax from the past
What to do if a contract without a price reduction clause has already been concluded and executed, and the supplier suddenly requires you to pay an additional 18 percent in the form of VAT? Try to challenge his claims in court. And although, as already mentioned, the courts often take the side of the sellers, sometimes the buyers still manage to win the dispute.

So, the Federal Arbitration Court of the Volga-Vyatka District once decided: a supplier who illegally applied the "simplified tax" and therefore did not include VAT in the cost of goods supplied, must pay it at his own expense and is not entitled to recover from the buyer. The judges pointed out that the seller can collect VAT only if initially, at the time of the transaction, he was a VAT payer and intended to receive tax from the buyer (Decree of June 29, 2009 N A17-3381 / 2008). This case had a peculiarity: at the conclusion of the transaction, the supplier justified the high price of the contract precisely by the fact that he applies the "simplification" and cannot deduct input VAT.

The Federal Arbitration Court of the Far Eastern District also somehow refused to collect VAT from the buyer to the seller who did not present the tax during the execution of the transaction, because he mistakenly believed that he was exempt from paying it, (decree dated March 21, 2007 N F03-A04 / 06-2 /5386). The seller himself is partly to blame for this outcome of this dispute ... He demanded that the buyer not pay VAT, but compensate for the amount of loss caused to him by non-payment of the tax presented. However, damages can only be recovered in the event of the debtor's unlawful behavior and there is a causal relationship between the violation and the damages.

In addition, recently, buyers have an additional argument in the form of a decision of the Supreme Arbitration Court dated September 22, 2009 N 5451/09. It concerns a different dispute (about how to calculate the penalty - from the price of the goods, including VAT, or from the price, "cleared" from it), but contains one important general conclusion. According to the highest judges, VAT is part of the contract price. In other words, a supplier who discovers that he had to pay VAT on a transaction with you has already received it - as part of the contract price. He is not entitled to present you with any amounts in excess of the price originally set in the contract. Therefore, insist that the transaction price already included VAT, since it later turned out that the seller was his payer.

Another way to protect the interests of the buyer opens article 451 of the Civil Code. She calls the grounds for revising the contract a significant change in the circumstances from which the parties proceeded when concluding it. This article applies when circumstances have changed to such an extent that, if the parties could have foreseen this, they would have concluded the contract on different terms or would have refused to deal altogether. Agree, an increase in the monetary obligation to the seller by 18 percent compared to the contractual terms is a "significant change in circumstances." If the buyer had known that such a "surprise" was waiting for him, he would have completely refused the contract. Therefore, he has the right to insist on revising the contract and reducing the price to 84.75 percent of the original. A supplier who does not wish to reduce the price can be forced by the court to obey the law (paragraph 2 of article 451 of the Civil Code).

E. Pustynina
Magazine "Calculation"