Buy VAT to optimize taxation. Optimization of VAT payment: interesting schemes for implementation. Among the tax incentives are

Separate accounting for VAT calculation: tax risks

Tax risks associated with possible undesirable financial consequences for the organization due to errors made in the calculation of VAT require increased attention and careful management. The complexity of managing these risks is caused, in particular, by the lack of clear and unambiguous legal regulation in relation to this tax. For example, ch. 21 "Value Added Tax" of the Tax Code of the Russian Federation, taxpayers are required to maintain separate accounting. Let us consider the practical aspects of organizing this accounting and the tax risks that arise in this case for an organization that simultaneously carries out operations both subject to VAT taxation and not subject to taxation (exempted from taxation).

Place of sale of services in the VAT calculation system

There are two models of VAT collection in the world: European and Canadian. The European model is used by the vast majority of countries in the world, while the Canadian one (sometimes called the New Zealand one) operates only in a few states. In addition to Canada and New Zealand, it is used in Singapore, Australia, South Korea and South Africa. The European model of VAT collection provides for determining the place of provision of services depending on the nature of the service provided. For some services, this may be the location of the customer or supplier, for others it may be the physical location of the service. The Canadian VAT model is based on different principles. The provisions of the VAT legislation of countries using this model are less detailed than those of the 112th Directive of the European Community. But we must remember that Canada has a federal structure.

VAT: Compliance with deadlines when exercising the right to a tax refund

The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 2217/10 dated 15.06.2010 emphasized: "an indispensable condition for the application of a tax deduction and the corresponding reimbursement of value added tax amounts is compliance with the three-year period established by paragraph 2 of Article 173 of the Tax Code of the Russian Federation." The Presidium of the Supreme Arbitration Court of the Russian Federation in this Resolution indicated that the taxpayer's failure to comply with the deadline established by paragraph 2 of Art.

VAT optimization

173 of the Tax Code of the Russian Federation, excludes VAT refunds. At the same time, based on the emerging judicial practice, the right to a VAT refund can be exercised by a taxpayer in any tax period within the period established by paragraph 2 of Art. 173 of the Tax Code of the Russian Federation. The main condition for applying the VAT tax deduction is compliance with the three-year period within which the right to apply the deduction can be exercised, which is calculated starting from the end date of the relevant tax period and until the moment the declaration itself (primary or revised) is filed, in which the VAT deduction is declared .

Advance VAT deduction

The procedure for applying the advance VAT deduction is established by paragraph 9 of Art. 172 of the Tax Code of the Russian Federation. Tax deductions are made on the basis of: invoices issued by sellers upon receipt of payment, partial payment against future deliveries of goods (performance of work, provision of services), transfer of property rights; documents confirming the actual transfer of payment amounts, partial payment on account of the forthcoming deliveries of goods - if there is a condition in the contract providing for such a transfer.

Exemption from VAT: how to work in the general regime without paying VAT

Do you work as an accountant in an organization (for an entrepreneur) that applies the general taxation regime, the turnover of the company is small (up to 2 million rubles per quarter), and among counterparties mostly special regimes? But at the same time, for some reason, you cannot switch to a simplified system, for example, because the share of participation of other companies in your organization is more than 25%? You have a completely legal way to get rid of VAT for at least a year - to get exemption from it. Many people know about this possibility, but when it comes to applying the exemption, various questions inevitably arise.

Methods to reduce the VAT burden for organizations engaged in production or work

Since we are talking about tax savings, it is easiest to explain what benefits certain optimization methods will bring in numbers. Suppose a company under the general taxation regime performs some work, including for customers who do not need VAT deductions, for example, for government agencies. The company's revenue is 236 million rubles. per year (including VAT). 20% of the proceeds — 47.2 million rubles — are accounted for by the execution of work commissioned by government agencies. Costs for the purchase of materials - 118 million rubles. VAT included. Salary and insurance premiums from it - 80 million rubles. The company has no other costs. First of all, let's recall the main condition for legal VAT optimization - you have buyers who do not need VAT invoices, or you can reach such buyers using intermediary contracts.

VAT optimization methods and conditions for their application

Recall that the amount of VAT that needs to be paid to the budget is the difference between the VAT accrued on the sale of goods and the deductions, that is, the VAT presented by suppliers. This means that in order to reduce VAT payable, you must either increase the deductions or reduce the amount accrued upon sale. But saving by increasing deductions is almost impossible. After all, by increasing deductions, you pay less to the budget, but more to suppliers. And you can get a deduction without buying anything only with the help of “one-day” firms, but you shouldn’t even talk about it - the illegality of such methods is known to everyone. But it is possible to reduce the VAT charged on the sale of goods, and to reduce it radically, to zero. We will now talk about how to do this.

VAT optimization scheme by selling goods through a simplified consignor

The main idea of ​​the scheme is that a VAT payer sells goods as a commission agent under an agreement with a consignor - a VAT non-payer, who, as a rule, uses simplified taxation. Most of the profit from the transaction remains with the committent, the commission agent receives only a small remuneration. Only this amount is subject to VAT. At the same time, the commission agent issues VAT invoices to buyers for the entire cost of goods. Yes, for the entire cost of goods. How he justifies this, we will tell further. As a result, buyers do not lose VAT deductions, which would be impossible if the seller himself switched to simplification or if the committent sold goods directly to buyers. For example, a company used to buy goods from a supplier for 118,000 rubles. with VAT and sold for 177,000 rubles. also with VAT. She had to pay VAT in the amount of 9,000 rubles to the budget.

Advances in intermediary contracts

In the arsenal of "tax circuit engineers" there is a method by which it is possible to postpone the payment of VAT on received advances until the goods are shipped (performance of work, provision of services). The essence of this method is as follows: the principal (committent) concludes an intermediary agreement with an agent (commission agent) on the sale of goods (works, services), which provides for the conclusion of contracts by the intermediary and the receipt of advances from buyers (customers). If the principal (committent) himself received these advances, then at the time of their receipt he would be obliged to calculate VAT (clause 2, clause 1, article 167 of the Tax Code of the Russian Federation). And if an intermediary receives advances, then he calculates VAT either only from his intermediary remuneration (Article 156 of the Tax Code of the Russian Federation), or does not calculate at all (Article 145 of the Tax Code of the Russian Federation or Chapter 26.2 of the Tax Code of the Russian Federation). The principal (principal) can calculate VAT only when he receives information from the intermediary - this is the basis of the scheme that allows you to postpone the payment of VAT until the desired moment (but no later than the date of shipment - subclause 1 clause 1 article 167 of the Tax Code of the Russian Federation).

Value Added Tax Optimization

In other words, value added tax is an indirect tax that is levied on almost all types of goods and falls on the shoulders of the final consumer. The amount of VAT calculated by deducting from the amount of tax calculated on all goods (works, services) sold and the amount paid to suppliers of goods (works, services) is subject to the budget. If the selling price of the goods is less than or equal to the purchase price, then no value added tax will have to be paid, since it is the value added in this case that will be absent. In addition, according to Art. 176 of the Tax Code of the Russian Federation, if the amount of tax deductions exceeds the total value of the accrued tax, then the amount received is subject to reimbursement from the budget. Thus, the main feature of the value added tax is that the tax is charged by the seller and the tax deduction by the buyer for the same amount occurs in the same time period.

VAT optimization consists in trying to reduce the “output” VAT and increase the “input” VAT based on the specifics of the calculation of this indirect tax.

VAT payable to the budget= Output VAT – Input VAT

"Output" VAT is calculated on all transactions that are objects of taxation in accordance with Art. 146 of the Tax Code of the Russian Federation, and the "input" VAT is subject to tax deduction in accordance with Articles 171-172 of the Tax Code of the Russian Federation, provided that:

the acquired resources are used in transactions subject to VAT (production and sale of goods, performance of work and provision of services subject to VAT);

the acquired resources are taken into account (goods are credited, works are accepted, services are rendered), which is confirmed by the relevant primary documents (invoices, acts);

purchased resources are paid;

invoices are available for purchased resources.

Optimization of VAT does not at all consist in exempting from VAT in cases permitted by the Tax Code of the Russian Federation, i.e., reducing the “output” VAT to zero, since in this case the “input” VAT is not reimbursed from the budget, but is included in the costs of production and distribution thus reducing the profit of the organization. Moreover, not being able to charge buyers (customers) with “output” VAT, an organization exempt from VAT deprives them of the right to make a tax deduction for “input” VAT, which simply does not exist.

The VAT optimization process depends on:

whether the enterprise is the final one in the chain of production and sale of products and it is advisable for it to use the VAT exemption,

whether others are consuming the product and therefore it is not appropriate to use exemptions, i.e.

to. the benefits are "imaginary" in nature.

The condition for obtaining this exemption is the amount of proceeds, if for 3 previous consecutive calendar months the amount of proceeds from the sale of goods (works, services) of these organizations or individual entrepreneurs, excluding VAT, did not exceed 2 million rubles in aggregate. At the same time, the amount of proceeds from the sale of goods (works, services) is determined on the basis of all turnovers for the sale of goods (works, services), both taxable and not subject to VAT.

It should be noted that a number of small businesses are not required to obtain a special exemption from VAT, since they are already exempt from this obligation:

organizations that have switched to a simplified taxation system are not VAT payers (except for cases when organizations fulfill the obligation to withhold tax at the source of payments and pay it to the budget, that is, they perform the duties of a tax agent).

organizations and individual entrepreneurs who have switched to paying a single tax on imputed income for certain types of activities are not VAT payers (except for cases when organizations and individual entrepreneurs fulfill the obligation to withhold tax at the source of payments and pay it to the budget, that is, they fulfill the duties of a tax agent).

At the same time, it should be emphasized that organizations and individual entrepreneurs carrying out activities that are not subject to taxation by a single tax on imputed income are VAT payers for these types of activities in accordance with the generally established procedure.

However, the exemption of organizations and individual entrepreneurs from fulfilling the obligations of a VAT taxpayer does not apply to obligations arising in connection with the importation of goods into the customs territory of the Russian Federation subject to VAT taxation (subclause 4, clause

How to optimize VAT - schemes and ways to reduce tax

1 st. 146 of the Tax Code of the Russian Federation).

Nevertheless, having received an exemption, taxpayers must track their revenue on a monthly basis and compare its actual amount with the established conditions (Article 145 of the Tax Code of the Russian Federation). If during the period in which organizations and individual entrepreneurs were exempted from taxpayer obligations, the proceeds from the sale of goods (works, services) exceed the established limit (i.e., for three consecutive calendar months, the amount of proceeds from the sale of goods (works, services) without accounting for VAT exceeded 2 million rubles in total), then taxpayers, starting from the 1st day of the month in which such an excess occurred, and until the end of the exemption period, lose the right to exemption and pay VAT on a general basis (paragraph 4 of article 145 Tax Code of the Russian Federation). The amount of VAT for the month in which the excess occurred is subject to recovery and payment to the budget in the prescribed manner.

Article 145 of the Tax Code of the Russian Federation also establishes two more cases in which taxpayers (even if the actual amount of revenue is less than 2 million rubles for three consecutive calendar months) lose their right to exemption from VAT:

in case of failure by the taxpayer to submit the documents required to obtain a VAT exemption (or submission of documents containing false information);

in case of sale by taxpayers of excisable goods and excisable mineral raw materials.

Consider, on a conditional example, the issue of VAT optimization through tax exemption.

There are 3 suppliers of the same (interchangeable) production resource (raw materials, materials, works, services) with the following conditions: supplier A offers the resource at a price of 1000 rubles, including VAT 180 rubles; supplier B offers a resource at a price of 1100 rubles, excluding VAT (has received a tax exemption); Supplier C offers the resource at a price of 1000 rubles, excluding VAT.

Question: from whom is it more profitable to purchase a resource if the buyer company is a VAT payer and uses the resource in processing? The added value of the enterprise-buyer is 3000 rubles. per unit of production.

From this example, it is clear that the acquisition of inputs at lower prices, but without VAT, leads to an increase in selling prices and loss of competitiveness. Among other things, the amount of VAT received from buyers as part of the proceeds is fully transferred to the budget, since there is nothing to claim for reimbursement.

However, if there is a third supplier supplying a production resource at a price of 1000 rubles. without VAT, then this option has the same effect as option A. Under option C, the manufacturer transfers the amount of VAT in the amount of 720 rubles to the budget, but the selling price is the same as under option A.

Thus, we can conclude that VAT exemptions are ineffective in cases where tax-exempt goods (works, services) are transferred to the next production cycle, participating in intermediate consumption. In this case, an organization that purchases VAT-exempt production resources for the production process of other goods (works, services) that are subject to VAT in accordance with the generally established procedure actually pays VAT both for itself and for the one who was exempted from VAT at the previous stage. economic cycle of production, while the amount of VAT is included in the selling price. It turns out that the VAT not paid in one cycle of the production process is shifted to the next cycle.

By receiving exemption from VAT, taxpayers in these cases ease their tax position, thereby worsening the tax position of buyers, customers of the goods (works, services) they sell and making their goods (works, services) uncompetitive in price.

VAT exemption becomes beneficial when buyers (customers) do not allocate "input" VAT and do not present it for tax deduction from their VAT tax liabilities.

For example, when the final consumers of these goods (works, services) are individuals who purchase them not for production purposes, but for the purposes of their personal consumption, that is, for final consumption.

We should especially dwell on the use of a reduced rate of 10%: an organization that produces (sells) goods, subjecting them to “output” VAT at a rate of 10%, acquires production resources with an “input” VAT of 20%. As a result, the amount of VAT payable to the budget is either a small amount, or the budget's receivables to this organization are generally formed, since the amount of "input" VAT exceeds the amount of "output" VAT. In practice, the application of a rate of 10% becomes even more profitable than a full exemption from VAT:

in the case of full exemption from VAT, the amounts of "input" VAT from the budget are not reimbursed, but are included in the cost, thereby reducing the profit of the organization (as well as income tax);

if the amount of "output" VAT at a rate of 10% is less than the amount of "input" VAT at a rate of 20%, then the budget for the resulting difference actually finances this organization; at the same time, the costs of production and circulation of this organization are not affected, and the VAT taxation regime does not affect the amount of profit.

Thus, exemption from VAT is economically beneficial only in two cases:

if goods (works, services) sold without VAT are consumed in intermediate consumption by taxpayers exempt from VAT (both in accordance with Article 145 of the Tax Code of the Russian Federation - depending on the amount of revenue, and in accordance with Article 149 of the Tax Code of the Russian Federation - when carrying out operations, exempted from VAT);

if goods (works, services) sold without VAT are consumed in final consumption by individuals.

How to reduce VAT payable?

Payments by the enterprise of value added tax are made in accordance with Chapter 21 of the Tax Code of the Russian Federation. When calculating the amount of tax, the tax rate, income, expenses and the product of deductions of the enterprise for the period for which the report is made are taken into account. How to reduce VAT payable? You can reduce the value of VAT by minimizing the tax base, using reduced rates or increasing the amount of the tax deduction.

Steps leading to reduced VAT payments

1. Exemption of the organization from VAT payments. Article 145 of the Tax Code sets out the conditions allowing for the exemption of an enterprise from taxes. The disadvantage of this method of reducing VAT is the impossibility of providing an invoice suitable for acceptance for the purpose of deduction to counterparties.
2. Transition to taxation under a simplified scheme. In this case, it is necessary to restore the amounts of taxes previously accepted for deduction. Carrying out reorganization by allocation will make it possible to do without a procedure of this kind. Having created a new enterprise, transfer it to simplified taxation, freeing it from the VAT recovery procedure.
3. The conclusion of an agreement with another enterprise with the prescription of strict conditions for its execution. Provide for penalties, as well as their payment in case of violations. Sometimes it is possible to deliberately rig the violation of these sanctions, using it to pay for goods or services. In such a case, the tax charge will not be made, facilitating the acceptance of expenses through the buyer's tax accounting.

   11 Legal Ways to Reduce VAT

   This method cannot be used frequently, so as not to provoke an on-site tax audit.

4. Draw up a loan agreement for the advance payment received, since according to Article 149 of the Tax Code, this operation is not subject to VAT. This contract should then be translated as an innovation to pay for goods or services.

The procedure for making VAT payments to the budget

1. Determination of the total amount of VAT presented to the enterprise for the current reporting period on invoices issued.
2. Calculation of VAT deductions for an enterprise on invoices presented to the organization for payment for goods or services for a given tax period.
3. Identification of VAT amounts of the enterprise that are subject to recovery. If the enterprise has the right to offset VAT, it is necessary to write to the tax service an application for the formation of an overpayment of VAT.
4. Calculate the amount of VAT by filling out a tax return by subtracting the amount of the recovered amount from the total amount of tax and deducting from the tax.
5. In order to avoid penalties and penalties, VAT must be paid by the 20th day of the month following the end of the reporting period.
6. The VAT values ​​indicated in the calculation must be confirmed by the provision of invoices and records in the purchase and sales documentation.

   If this requirement is not met, an on-site tax audit and penalties may be carried out.

1. Ways to optimize VAT

Financial Executive School
Evgeny Timin
editor-in-chief of the magazine "Practical
tax planning"

2. Features of the formation of the tax base for VAT

The amount of tax payable is the difference between
charges and deductions;
reflect VAT charges - obligation
taxpayer;
to declare deductions is his right;
as a result, the calculation method is applicable
only for charges.

3. Principle of VAT optimization

A reduction in the amount of tax payable is achieved
either a reduction in the amount of charges, or
increase in the amount of deductions;
if the amount of charges decreases, then
the amount of deductions from the counterparty is also reduced;
if the amount of deductions increases,
increases and the amount of charges
counterparty.

4. Legal and illegal ways to optimize VAT

Disappearance of the tax base (ephemeral);
manipulation with the contract price
(transfer pricing);
use friendly
non-payers of VAT (split);
use of features of civil law contracts (non-taxable
operations).

5. Benefits and dangers of using ephemera

One of the simplest ways
tax optimization that does not require
performer of high professionalism;
ease of detection during verification;
high risks of additional tax charges;
the risk of prosecution;
alternative to ephemera - artificial
bankruptcy of a counterparty.

6. Transfer pricing

Price control is theoretically possible only in
in relation to related parties and in the case of
exceeding the turnover limit between them;
in practice, tax authorities tend to
control prices for any transactions
interdependent persons;
transactions of independent persons
controlled through the principle
"undue tax benefit".

7. Business fragmentation

Use of friendly companies,
applying special regimes (USN, UTII,
ESHN);
individuals are not entrepreneurs;
persons using benefits (Article 149 of the Tax Code of the Russian Federation) and
release (art.

8 ways "how to reduce VAT": from stamps to exotics

145 of the Tax Code of the Russian Federation) for VAT.

8. Features of contracts

Delayed transfer of ownership;
conditions for the calculation of fines and penalties;
retro discounts, retro surcharges affecting
and not affecting VAT;
other related to the main contract
terms and deals.

9. The main methods of tax authorities when checking VAT

Checking the correctness of invoice details;
verification of the integrity of the main suppliers and
buyers. If they are dishonest, then
due diligence check
in their choice;
fundamental possibility test
transaction: availability of warehouses, transport,
personnel, typical operation for participants
transactions;
checking the interdependence of participants in transactions and
looking for a tax benefit for someone from
participants.

10. Basic techniques for maximizing the amount of deductions

Receiving inflated deductions or unrealistic deliveries from
ephemera - they will have to fight for them in court and answer to
investigators;
bankrupt counterparties - if there is no interdependence, then prove
intent is complex and requires a lesser degree of prudence;
a friendly company that is not afraid of VAT charges from
using transfer pricing increases the deduction;
advance payment to a friendly company that is not afraid of
VAT charges, or advanced delivery of goods from it;
playing on the difference in VAT rates of 18% and 10% or 0%;
accelerated VAT refund;
purchase of goods, works, services for non-production purposes,
for example, luxury items for company owners;
division of taxable and non-taxable transactions into different
companies in order not to lose deductions for general business expenses.

11. Basic techniques for minimizing the amount of accruals

ephemeral - through them the sale is carried out at market prices, and they receive goods from
the minimum markup;
sale through a company that subsequently officially goes bankrupt;
replacement of a part of taxable income with non-taxable one;
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▫
▫
▫
▫
▫
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using a bunch of friendly companies - non-payers of VAT;
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▫
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penalties for breach of contract. The sale is at a reduced price, the balance -
fines;
compensation for damages or damages;
commercial loan payments;
rent outside the term of the contract;
options and other forward transaction instruments;
VAT-free "burden" to the main transaction;
interest-bearing loan agreement with the buyer;
the use of simplification at the stage of the sale of goods;
division of sales flows into a flow of counterparties who do not need to deduct VAT and others;
sale at a discount, and a friendly simplistic person provides services for the amount of the discount;
receiving from suppliers of trading bonuses not subject to VAT;
replacement of prepayments with other types of collateral for obligations;
barter agreement - optimization is possible if goods are received that are not subject to VAT;
leasing.

The possibility of optimizing the most complex tax, which is a headache for most organizations in the general taxation system, does not cease to excite the minds of entrepreneurs. How not to pay the state 18% of the amount received on the account of the organization? After all, this money is already in the account, you can dispose of it, the company needs it so much, and without it, there may be no profit at all!

Maybe run to a seminar of well-known Moscow consultants, who have been telling the same thing for ten years, promising to give a “complete overview of the working cash-out VAT schemes”? And what if VAT becomes 22%, and what if it is indeed paid directly to the budget when transferring money? As always, we remove emotions and understand objectively. For clarity, all schemes will be illustrated in detail.

1. About VAT, which allegedly from 01/01/2018 is paid directly to the budget

On November 27, 2017, 355-FZ was adopted, which introduced significant changes to Chapter 21 of the Tax Code of the Russian Federation. Since January 1, 2018, the procedure for determining the tax base, calculating and deducting VAT has changed dramatically, but only for several types of goods: raw animal skins, scrap and waste of ferrous and non-ferrous metals, secondary aluminum and its alloys. All. The list is exhaustive.

In short, VAT is calculated by tax agents (buyers, regardless of the applicable taxation system), and not by sellers applying the general taxation system (individuals and "simplifiers" are still not VAT payers and do not "transfer" it to the tax agent, indicating in primary documents "Without VAT").

No "magic" ways of tax optimization and lengthy discussions about entrepreneurship and the difficulties of doing business.

We value your time, so our seminar takes place 1 day and contains a maximum of information. We offer specific solutions for every business.

Come to our seminar for business owners and top officials of the company April 12, online and offline participation is possible.

The seller in the invoice makes an appropriate inscription or puts a stamp "VAT is calculated by the tax agent." Simultaneously with the calculation, the buyer on the general taxation system has the right to deduct VAT, i.e. in fact, the amount of tax is not paid to the budget.

The deduction is carried out in the same tax period as the purchase of goods, regardless of the moment of its further sale.

On the diagram it looks like this:

There is no transfer of "agency" VAT along with payment to the counterparty!

Currently, VAT is paid directly to the budget only on the basis of paragraph 4. Art. 174 of the Tax Code of the Russian Federation - as tax agents when transferring funds to foreign organizations that are not registered in the Russian Federation.

Changes to the Tax Code of the Russian Federation introduced by FZ-355 dated November 27, 2017 had a negative impact only on intermediaries on the “simplified” basis (in cases of purchasing goods from organizations on the OSN), as well as on exporters of raw materials that can accept “agent” VAT deductible only after confirming the zero rate for export VAT, while when selling the same goods on the domestic market - simultaneously with the calculation.

At the same time, these changes made it possible for tax authorities to control the passage of goods from its formation to sale to the final consumer, while the possibility of accepting a VAT deduction simultaneously with its calculation led to an excess of the “normative” level of VAT deductions (89%), which is an additional risk factor for the appointment field tax audit, and the possibility of a motivated excess of the deduction share.

2. About “optimized” VAT and some popular “methods”

To illustrate the impossibility of optimizing VAT by all participants in the transaction, we will give an example of replacing the part of the payment with VAT with a penalty that is not subject to VAT:

In this case, LLC "Supplier" receives a tax benefit in the form of a reduction in the amount of VAT payable to the budget, but at the same time, LLC "Buyer" has a reduction in input VAT, which means that the amount of tax deduction is reduced.

Thus, only one party to the contract, Supplier LLC, benefits, and if the penalty was artificially formed, the tax benefit is unreasonable.

A similar logic is also valid for all types of agency contracts, for example, the initial situation when LLC "X" resells the goods:

If, in order to optimize VAT and income tax, LLC "X" switches to the simplified tax system with an income-expenses base (15%) and becomes an agent:

The tax benefit of LLC “X” is obvious, the tax burden of LLC “Buyer” does not change, but LLC “Principal” receives an increase in the VAT tax burden, which is actually transferred to it from LLC “X”.

The indirect nature of VAT also occurs with other types of agency contracts, regardless of whether they are named in accordance with the Civil Code of the Russian Federation or called “reverse”, “direct”, etc.

Simply put, someone in the chain still has to pay VAT.

The situation is also relevant for tolling schemes that do not optimize VAT, but in certain cases, can reduce the tax burden of the entire group of companies due to income tax and payroll taxes.

A popular optimization method in the form of separating VAT and non-VAT flows, strictly speaking, does not optimize VAT, while according to the letter of the Federal Tax Service of the Russian Federation dated August 11, 2017 N SA-4-7 / [email protected] can be seen as a way to obtain unjustified tax benefits by formally splitting up the business and artificially allocating the proceeds from the activities carried out to controlled related parties.

The problem of VAT optimization lies in the very formulation of the question: VAT is not legally optimized, and illegal methods with the help of one-day firms in 2018 are atavisms.

Business owners need to raise another question: how to create a business structure that would allow it to be profitable, while using legal methods of tax optimization, mechanisms for protecting business assets and owners?

You can get answers to these questions at our seminar.

Only real cases of "Compliance solutions" are waiting for you, based on judicial practice and legislation.

Find out how to make your business safe, optimize taxes effectively, protect business assets and owners.

Form of participation: online and offline.

As arbitration practice shows, most disputes between taxpayers and inspectors arise on VAT. But there are legitimate ways to optimize VAT, for example, cooperation with friendly companies on special regimes. Let's consider them in more detail.

In order to effectively combat value added tax evasion schemes, inspectors use the electronic services of ASK VAT-2 and AIS Tax-3. These software systems automatically control the activities of taxpayers. However, the tax authorities have not yet been able to completely defeat the "gray schemes". Unscrupulous taxpayers continue to optimize the level of the tax burden outside the legal framework.

There are ways to optimize VAT that do not contradict the law. The fact is that for the needs of medium and large businesses, usually one legal entity is not enough. They create groups of companies, which include organizations both on the general taxation system and on simplified taxation. The use of a special regime is a legal way not to pay VAT ().

Divide incoming revenue streams to optimize VAT

Within a group of companies, it is possible to divide the revenue streams from sales between companies, into OSN and STS, in order to collectively pay less VAT to the budget. Such a VAT minimization scheme is suitable for a business where revenue is simultaneously received from both VAT payers and VAT non-payers. For example, there are wholesale and retail buyers, as well as buyers exempt from VAT. Non-payers do not need VAT to be deducted - they will buy goods from a simplistic. The rest of the consumers are in the company's general mode.

Practice shows that if buyers who do not need VAT account for at least 10 percent of the wholesaler's turnover, the splitting costs begin to pay off. How to determine which of the buyers need VAT, and who does not? Customer surveys are of little help here. There are more efficient ways:

• put buyers before the fact: we are switching to work without VAT. And only those who because of this refuse to cooperate should be offered a fallback with VAT;
• make work without VAT more profitable (discounts, deferred payment);
• conduct a preliminary analysis of buyers and offer a transition to work without VAT only to those who will certainly not lose anything from this.

The law does not prohibit registering several interdependent legal entities. However, the tax authorities in this case will try to prove that the fragmentation pursued the only goal - to save on taxes. Consequently, the activity of the simplifier is fictitious, and all his proceeds must be recorded in the company's turnover in the general mode. Naturally, this will lead to additional VAT, income tax, fines and penalties (). In addition, a company under a special regime can be deprived of this status and recalculate taxes for it according to the general system.

A good argument for the tax authorities will be the company's marketing policy and the presence of a business goal. For example, an attempt not to lose the retail market through a special pricing strategy.

How to transfer VAT deductions safely and without loss

When the amount of VAT deductible is more than the accrued one, and even exceeds the standard of 88 percent, the company is threatened not only with an in-depth desk audit and a call for a commission to the IFTS, but also with an on-site tax audit. See how to avoid such consequences.

Arbitration practice

The Arbitration Court of the West Siberian District, in resolution No. Ф04-6830/2016 dated January 31, 2017, considered the dispute on business splitting. The tax authority accused the taxpayer of creating a VAT optimization scheme with the participation of newly created interdependent and controlled organizations applying the simplified taxation system. Based on the results of the audit, the company was charged additional income tax and VAT.

The court ruled in favor of the taxpayer. He succeeded in proving that the interdependent persons conducted independent business activities. The Company has entered into agreements with controlled organizations for the sublease of premises, the processing of tolling raw materials and transportation. The simplists had their own suppliers and buyers who worked only with them and did not intersect with the taxpayer being checked. Related companies sold similar products at lower prices.

The taxpayer, in addition to the purchase and sale of agricultural products, was engaged in its processing. The related companies were not engaged in processing. That is, their activities are not identical.

The tax authority referred to the results of the inventory of the warehouse. The storage areas for raw materials in the warehouse were not demarcated. Raw materials from different companies were stored together. This testifies to the supposedly dependent activities of dependent persons and the formal document flow.

However, the court noted that such joint storage of raw materials is permissible. Agricultural products are not endowed with individual characteristics and differ only in type, variety, etc. For proper warehouse accounting, it is enough to know the amount of raw materials belonging to a particular legal entity, and not where exactly it is located.

The fact that the simplistic people do not own property, current accounts in the same credit institutions, and the same IP address with the taxpayer do not indicate the non-independent nature of the economic activity of organizations.

How to optimize VAT? Become an intermediary

Why trade at your own expense, if there is an opportunity to become a representative of counterparties and switch to simplified trading? In this case, the income, which used to be a trade margin, the company will receive in the form of an intermediary fee, as well as part of the additional benefit, the delcredere fee. These incomes do not need to pay VAT and income tax.

This is achieved either through an agency agreement for the purchase of goods, where the principal is the former buyer, or through an agreement for their sale, when the principal is the former seller. The choice depends on who is easier to negotiate representation with. At the same time, counterparties do not lose anything in the case when they do not need to deduct VAT - after all, the remuneration of a simplified intermediary is not subject to this tax. If the principals (committents) still need VAT, then you can try to negotiate with them about a discount on remuneration, up to 18 percent. In any case, the intermediary will save on income tax.

In addition to tax savings, in particular the optimization of value added tax, working under an intermediary agreement has a number of advantages. The intermediary does not transfer ownership of the goods, he does not accept VAT deductions. Therefore, this deduction cannot be deprived if, for example, the principal turns out to be an unscrupulous taxpayer.

The lower the turnover of the company, the less likely the appointment , while the intermediary's turnover consists only of his own remuneration. Even if the audit takes place, it will not concern such "problem" taxes as VAT and income tax - the risk of large additional charges is reduced.

But there are also disadvantages. It is more difficult for a commission agent or agent to get credit. There is a risk that an intermediary contract will be reclassified as a sale and purchase, especially if there are errors in the document flow.

Of course, the tax authorities are aware of this method of VAT optimization and treat intermediary contracts with suspicion. In the event of a dispute, success will depend on evidence of interdependence and accountability of the agent to the principal. In addition to the formal signs of affiliation, the facts of the creation of a new intermediary are important here when the simplistic person's income approaches critical indicators that allow the use of a special regime, the agent's work with only one interdependent principal, etc.

Inspectors will pay attention to transactions if the agent uses a special regime, or the agent has signs of a one-day trader. They will also be interested in agents - foreign organizations.

How to prove to the tax authorities the need to involve intermediaries

Determining the validity of the agency fee is simple - you need to understand whether there is a business goal in attracting an intermediary or it was possible to do without it (determination of the Supreme Court dated 02.08.2016 No. 309-KG16-8920). Consider what arguments will help prove the need to involve intermediaries.

Sales increased. In one of the disputes, the company was able to prove the validity of the costs and deductions under two agency agreements. The agent had to ensure an increase in the volume of sales of jet fuel (Resolution of the Arbitration Court of the West Siberian District dated June 28, 2016 No. Ф04-2457/2016). And he succeeded. The court found that the volume of sales increased by 1.3 times.

The functions of the agent do not duplicate the duties of the principal's employees. The company entered into a contract for the provision of services with an entrepreneur. The individual entrepreneur was supposed to supply medical and pharmaceutical institutions in Moscow and the Moscow region with the products of the guarantor in a timely manner. The inspectors said that the services of the entrepreneur duplicate the duties of the marketing service and the director of development and sales of the company. But the court established the reality of the intermediary services provided by the counterparty. The inspection did not provide evidence that the individual entrepreneur and employees of the company were engaged in the same work (decree of the Arbitration Court of the Moscow District of August 29, 2016 No. F05-11844 / 2016).

The principal could not sell the goods to end customers directly. When building a defense, it is important to prove that the intermediary independently conducts its activities, and also has the necessary material and labor resources. The tax authorities should not have suspicions that the principal performs the functions transferred to the agent on his own.

In one of the disputes, the tax authorities recognized the costs and deductions for intermediary transactions as unreasonable. The company substantiated the economic feasibility of concluding an agency agreement. She explained that she could not work directly with end customers (decree of the Central Administrative District of the Central District dated November 19, 2014 No. A09-564 / 2014).

We are engaged in tolling processing to reduce VAT

For manufacturing companies, a tolling scheme for optimizing VAT with the participation of a simplifier is beneficial. It allows you to maximize the benefits of special modes without fragmenting the business.

In this case, the manufacturer produces products not at his own expense, but at the expense of friendly companies that act as givers-customers. The manufacturer transfers the minimum amount of taxes to the budget, since the minimum amount of remuneration is set for processing work. The tolling organization applies a special regime and pays taxes at preferential rates.

The contract for the processing of customer-supplied raw materials, in fact, is a kind of work contract (Chapter 37 of the Civil Code). The contractor may apply the general system. But a significant part of his expenses will fall on salaries, insurance premiums and other expenses without VAT. Therefore, it is more profitable for him to use a simplified one.

There may be several vendors. One of them can use the general system, the other - a special regime. Most often, this is the simplified tax system, but in the case of further retail sales of products, it can be UTII or PSN. The givers themselves or through a common purchasing agent acquire the necessary raw materials and materials for processing and transfer them to the processor.

Finished products belong to the givers. They sell it to outside buyers. If the supplier is on the DOS, he sells products to large wholesalers that require VAT. If on the simplified tax system - to small wholesalers, the budget and other buyers who do not need VAT. If on UTII or PSN - to retail buyers.

The main advantage of the work of the giver on the simplified tax system is the absence of VAT. This is especially important after the introduction of the new form of the VAT declaration and the special ASC VAT 2 program. If the manufacturer uses the general system, then he pays taxes only on the cost of processing raw materials. The minimum possible price is set for these works.

Controllers may see an unreasonable tax benefit in the tolling scheme. They will prove that the functions of tolling organizations are artificial, and the manufacturer himself is actually engaged in the purchase of raw materials and the sale of finished products. To justify a tax benefit, you need a business purpose.

The business objectives of the manufacturer for concluding a tolling agreement can be:

• lack of a sufficient customer base or access to raw material suppliers,
• lack of working capital
• inability to attract debt financing.

But at the same time, the manufacturer has the equipment, a good business reputation, a streamlined production process, qualified personnel, and work experience. All that the giver does not have.

The main advantage of the work of the giver on the simplified tax system is the absence of VAT. This is especially important after the introduction of a new VAT declaration form and the ASK VAT 2 program.

Arbitration practice

If the business purpose is clear, taxpayers are able to defend themselves in court. An example is the decision of the AC of the West Siberian District dated January 31, 2017 No. F04-6830 / 2016.

The tax authorities accused the company of creating a “business split” scheme by creating controlled tollers using a simplified taxation system. The goal is to obtain unreasonable tax benefits for VAT and income tax.

The taxpayer made the following arguments in his favor:

• the price of processing a unit of production was not fixed, but was calculated on a monthly basis, taking into account the actual costs incurred for processing, applying a trade margin and charging VAT;
• the company fully took into account the income received from this activity in accounting and tax accounting;
• the taxpayer sold similar products at lower, that is, more competitive prices than the applicant;
• As a result of concluded transactions, budget losses are responsible.

Splitting a business to reduce VAT

The essence of splitting up a business to optimize VAT is that a company formally creates several simplified companies under the general regime, which have the right not to pay VAT. The danger here is precisely in the word "formally". If several organizations are really necessary for business, then fragmentation is legal.

Among the most common grounds that the tax authorities identify when establishing a fictitious splitting of a business, one can note such signs of non-independence of friendly companies as:

• formal signing of documents;
• lack of personnel, property, vehicles;
• work exclusively with internal counterparties;
• the same type of activity of several companies or employees;
• use of intermediary agreements;
• monetary transactions of a transit nature;
• registration on the same day, shortly before the conclusion of contracts with the main company;
• coincidence of legal addresses serving banks, directors, chief accountants, etc.;
• termination of activity by reorganization in the form of accession to other legal entities.

If we talk about VAT optimization using the example of an organization, we can distinguish two typical situations in which medium and large businesses apply business splitting.

Situation 1. The business is divided into several legal entities applying the simplified tax system, each of which carries out independent operations within the framework of the general commercial activities of the group.

In general, judicial practice in this situation is developing rather in favor of taxpayers (decisions of the North-Western AC dated 03/02/2016 No. A56-22627 / 2015, West Siberian dated 05/06/2016 No. A27-19625 / 2014, Ural dated 12/16/2015 No. А60-12924/2015, Far Eastern District No. А51-34304/2014 dated 07.10.2015).

There is also a negative practice for this type of crushing (definition of the Supreme Court of November 27, 2015 No. 306-KG15-7673, resolutions of the Federal Antimonopoly Service of the West Siberian of August 16, 2013 No. A81-3642 / 2012 and the Administrative Court of the West Siberian of February 6, 2017 No. A27-10743 /2016 districts). It is older, but still suggests that even with full independence of legal entities, there is a risk of additional charges.

Situation 2. Each of the legal entities created during the splitting into the simplified tax system takes on some part of the overall activity. Unlike the previous situation, in this case, judicial practice is not in favor of taxpayers (decisions of the East Siberian Arbitration Court of October 13, 2016 No. A74-9292 / 2015, West Siberian Arbitration Court of 03.02.2016 No. A45-2687 / 2015, Moscow of 03.04. 2013 No. A40-22050/2012, North-Western of February 6, 2017 No. A13-7050/2013).

There is also a positive practice (decisions of the Ural Arbitration Court dated July 31, 2015 No. A76-3351 / 2013, the North Caucasian District of May 25, 2015 No. A63-4162 / 2014 and the East Siberian District of February 3, 2015 No. A19-16584 / 2013 districts).

As noted by the Constitutional Court in its Resolution No. 3-P dated February 24, 2004, judicial control is not intended to verify the economic feasibility of decisions made by business entities that have independence in business. Due to the risky nature of business, there are objective limits to the ability of the courts to detect the presence of business miscalculations in it.

In the ruling of the Constitutional Court of July 4, 2017 No. 1440-O, Judge Aranovsky expressed a dissenting opinion that the splitting of a business, in principle, does not constitute an offence. Conducting business through several persons is not prohibited. The tax code explicitly allows interdependence. There should be no question of intent at all, since any company or entrepreneur registers with the inspection intentionally, and not accidentally.

Breaking up a business, in principle, does not constitute an offence. Conducting business through several persons is not prohibited.

When tax authorities fail to hold taxpayers accountable for business fragmentation

An analysis of judicial arbitration practice allows us to identify a number of grounds when the tax authorities fail to hold taxpayers accountable for splitting up a business. For example, judicial acts were rendered in favor of taxpayers in the following cases:

• the tax authority did not prove the existence of a formal document flow, all links in the trade and production chains confirmed the reality of transactions, or the inspectorate did not make such requests (decree of the Arbitration Court of the Ural District dated 12.01.2018 No. Ф09-8406 / 17);
• the delivery of products is confirmed by correctly executed primary and tax documents and the inspectorate does not dispute the reality of the transaction, and the counterparties independently carried out their economic activities (decree of the Arbitration Court of the North Caucasus District of October 18, 2017 No. Ф08-7598 / 2017);
• the legislation does not contain grounds under which unreasonably refunded VAT on the export of goods is subject to additional charge to a third party who did not export goods and did not claim VAT for reimbursement from the budget (Resolution of the North-Western District Court dated 03.05.2017 No. Ф07-3073 / 2017).

One of the most difficult taxes to optimize is value added tax. In principle, Russian tax legislation provides for quite a lot of legal schemes and ways to avoid paying this tax at all, or pay it in a reduced amount. However, the majority of enterprises and organizations cannot, do not want to, or do not know how to take advantage of such tax incentives.

Planning and optimizing VAT is not an easy task. But, as practice shows, it is still solvable.

So what is value added tax?

This tax is, as mentioned above, one of the most complex in tax legislation and belongs to the group of indirect taxes. Indirect taxes

These are taxes on goods and services, imposed as a surcharge on the price of goods or on tariffs for services, and do not depend on the income of taxpayers (as opposed to direct taxes related to income). With the introduction of indirect taxes, producers (sellers) of goods and services sell them at prices and tariffs, taking into account the tax surcharge, which is then transferred to the state. Thus, producers and sellers act as a tax collector authorized by the state, and the buyer becomes the payer of this tax. The following operations are recognized as the object of VAT taxation in accordance with Article 146 of the Tax Code of the Russian Federation:

Sale of goods (works, services) on the territory of the Russian Federation, including the sale of collateral and the transfer of goods (the results of work performed, the provision of services) under an agreement on the provision of vacation pay or innovation, as well as the transfer of property rights;

Transfer on the territory of the Russian Federation of goods (work performed, provision of services) for own needs, the costs of which are not deductible (including through depreciation) when calculating corporate income tax;

Performance of construction and installation works for own consumption;

Import of goods into the customs territory of the Russian Federation.

The optimization of VAT taxation will be a reduction in the size of tax liabilities through purposeful lawful actions of the taxpayer, including the full use of all tax benefits provided by law and other legal methods and methods.
In other words, this is the organization of the activities of an enterprise or organization, in which VAT tax payments are legally minimized, without violating the norms of tax, administrative and criminal legislation.

How to optimize VAT?

It should be noted that there are many methods and schemes for optimizing the VAT. Here are some of them:

1. One of the VAT optimization schemes is the replacement of part of the cost of the goods sold with interest on a commercial loan.

In accordance with Article 823 of the Civil Code of the Russian Federation, contracts, the execution of which is associated with the transfer of money or other things determined by generic characteristics to the ownership of the other party, may provide for the provision of a loan, including in the form of an advance payment, prepayment, deferment and installment payment for goods, works or services (commercial credit). That is, the seller, under a commercial loan agreement, reduces the value of the property and provides a deferment. At the same time, it charges interest, the amount of which is equal to the discount. As a result, it turns out that part of the proceeds from the sale of goods from the seller is not subject to VAT. However, the tax authorities insist that interest on a commercial loan is subject to VAT. At the same time, they refer, firstly, to Article 823 of the Civil Code of the Russian Federation, from which it follows that the provision of a commercial loan (and hence interest) is directly related to the payment for goods. Secondly, they refer to the fact that Chapter 21 of the Tax Code of the Russian Federation directly exempts from VAT only interest on a commodity loan, and then only to the extent that it does not exceed the refinancing rate of the Bank of Russia.

Meanwhile, judicial and arbitration practice holds a different point of view.

In paragraph 14 of the joint Decree of 08.10.98 of the Plenum of the Supreme Court of the Russian Federation No. 13 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 "On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people's funds" the following is emphasized: the supplier has the right to specify in the contract the obligation the buyer to pay interest on the amount corresponding to the price of the goods, starting from the day the goods are handed over by the seller. This interest, accrued (unless otherwise provided by the agreement) until the day when the payment for the goods was made, is a payment for a commercial loan. Thus, it was clearly explained that the percentages indicated did not increase the price of the commodity; they are payment for the use of funds and are not related to payment for goods. Therefore, interest on a commercial loan should not be subject to VAT. This conclusion is also fully confirmed by the Decree of the Federal Antimonopoly Service of the East Siberian District dated 05.08.08 No. A33-3593 / 08-Ф02-3654/08.

2. The next way is to use one of the intermediary commission, agency or commission agreements instead of the sale and purchase agreement for VAT optimization purposes.

Quite often in practice there are situations when trade organizations are forced to work with suppliers who are not VAT taxpayers (using special taxation regimes of the simplified tax system and UTII, or exempted from VAT under Article 145 of the Tax Code of the Russian Federation). In this case, these trading organizations are not entitled to deduct any amount of VAT on the purchased goods, since the sellers of the goods do not pay this tax: they either issue an invoice to the buyer with zero VAT (in case of exemption under Article 145 of the Tax Code RF), or do not issue an invoice at all (when paying UTII or when applying the simplified tax system). In the future, when reselling this product, these trading organizations (if they apply the general taxation system) will be required to calculate and pay VAT to the budget on the entire cost of the products sold. The use of an agreement in such situations, for example, a commission, according to which a friendly or subsidiary intermediary organization will act as a commission agent (i.e., sell the goods on behalf of its supplier, without acquiring ownership of the goods being sold) and participate in settlements from own name, allows you to pay VAT only on the amount of your remuneration, which, in essence, is nothing more than a trade margin (Article 156 of the Tax Code of the Russian Federation).

It is easy to calculate the benefit from using this method. The amount of VAT payable is equal to the difference between the VAT that the intermediary organization would accrue upon shipment to the consumer and the tax deduction that arises after payment for the products to the supplier who is not exempt from paying this tax. It turns out that buyers working with counterparties-sellers on the simplified tax system or UTII, or exempt from VAT, must pay less value added tax than if the relationship between partners was based on a sales contract.

3. Another way to optimize VAT in this situation is to defer payment of VAT.

For example, a “simplistic” seller still issues an invoice to the buyer with a dedicated VAT. In accordance with paragraph 5 of Art. 173 of the Tax Code of the Russian Federation, issuing invoices with VAT of the Tax Code of the Russian Federation is not prohibited not only for "simplifiers", but also for any non-payers of VAT. Having issued an invoice with VAT, he transfers the tax to the budget not immediately, but with a long delay. In turn, the counterparty-buyer reimburses this amount of tax from the budget. In general, such a group of companies will receive an economic benefit in the amount of VAT refunded from the budget for the period of the deferment received. In this situation, the tax authorities, defending their position, argued: since the supplier is not a VAT payer, he is not entitled to issue invoices with VAT. Such a dispute was the subject of judicial consideration, and the Supreme Arbitration Court of the Russian Federation in its Ruling No. VAC-535/09 dated February 13, 2009 confirmed that a trade organization under the general regime does not lose the right to deduct VAT on invoices issued to it by a “simplifier”.

A deferment from paying VAT can also be obtained by establishing a special procedure for transferring ownership of the goods in the sales contract.
In accordance with paragraph 1 of Article 223 of the Civil Code of the Russian Federation, the right of ownership of the purchaser of the thing under the contract arises from the moment it is transferred, unless otherwise provided by law or the contract. In turn, the object of VAT is the sale of goods, works, services. At the same time, according to paragraph 1 of Article 39 of the Tax Code of the Russian Federation, the transfer of ownership of these goods is recognized as the sale of goods.

Consequently, in the absence of a transfer of ownership of the goods, the object of VAT taxation does not arise. Thus, in the contract it is possible to establish such a procedure for the transfer of ownership of the goods or part of the goods, in which the maximum deferral of VAT payment to the budget is obtained.

4. The next way to optimize VAT is to include discounts for distributors for the selected volume of purchases in the VAT tax base.

For example, a taxpayer - a legal entity has concluded distribution agreements with purchasing organizations (distributors) for the distribution and sale of goods to third parties. At the same time, product sales plans were developed. This is confirmed by the annex to the distribution agreements. In order for distributors to buy more, the taxpayer developed and introduced a system of discounts. At the same time, in the agreements concluded by the taxpayer with counterparties, only the base price of the goods was indicated without taking into account the discount. The same price was fixed in the primary shipping documents. At the end of the tax period, the organization determined the volume of purchases of each distributor and provided him with a discount for the previous quarter. In the current period, the organization reduced the price of already shipped goods and adjusted the VAT base based on “negative” invoices.

According to the tax authorities, discounts provided to distributors are not related to changes in the price of goods, i.e. the taxpayer unlawfully adjusted revenue and underestimated the tax base for VAT.

The above situation was the subject of consideration by the Supreme Arbitration Court of the Russian Federation.
Thus, in its Decree of December 22, 2009 N 11175/09, the Presidium of the Supreme Arbitration Court of the Russian Federation stated: “As established by the courts, the company sold its goods through a network of distributors during the tax periods under review. When concluding distribution agreements, it was provided that distributors distribute and sell goods to third parties, while in order to motivate the latter to increase the volume of purchased goods, increase the market share of goods, develop product distribution, and strengthen payment discipline, the company, in agreement with the distributor, establishes a system of discounts from the price of goods (system of bonus discounts). The discount is provided to the distributor based on the results of work as a percentage of the volume of goods sold for a certain period, in particular, for the fulfillment of the sales plan, the timeliness of payment, the achievement of goals (for special efforts to promote the goods on the market).

The courts, refusing to satisfy the company's claim in this part, came to the conclusion that the retrospective discounts (bonus discounts) provided to distributors are discounts that do not change the price of the goods, since such discounts were determined by the company as a percentage of the total cost of all goods sold for the previous period, and the supply contracts do not specify the initial price of the goods and the price formed taking into account the discounts provided to the buyer.

However, taking into account what is stated in paragraph 1 of Article 39, paragraph 2 of Article 153 and paragraph 4 of Article 166 of the Tax Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation came to the conclusion that, regardless of how the parties to the distribution agreement defined the incentive system: providing a discount that determines the amount of a possible reduction in the base price of the goods specified in the contract, or providing a bonus - additional remuneration, a bonus provided by the seller to the buyer for fulfilling the terms of the transaction, and also regardless of the procedure for granting discounts and bonuses (transfer to a settlement account, offset as advance payment or reduction of debt) when determining the taxable base, the amount of revenue is subject to be determined taking into account discounts, and, if necessary, adjusted for the tax period in which the sale of goods (works, services) is reflected.

Thus, based on the provisions of Clause 1 of Article 153 and Clause 4 of Article 166 of the Tax Code of the Russian Federation, the tax base for the purpose of calculating the amount of VAT must be determined taking into account discounts, and if these discounts are granted after the date of shipment of goods, they must be adjusted for the tax period, when the corresponding shipment of goods is reflected. Which is confirmed by the above Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation N 11175/09.

5. A type of activity that completely exempts from paying VAT by virtue of the provisions of paragraphs. 4 p. 3 art. 149 of the Tax Code of the Russian Federation.

The specified subparagraph of this article reads: “The following operations are not subject to taxation (exempted from taxation) in the territory of the Russian Federation: 4) operations carried out by organizations that provide information and technological interaction between participants in settlements, including the provision of services for the collection, processing and distribution of information to participants in settlements on transactions with bank cards.

If this rule is read literally, it turns out that all transactions carried out by such organizations are exempt from VAT, and not only transactions related to ensuring interaction between participants in settlements. Therefore, it is enough for an organization, for example, to rent terminals connected to any payment system and accept payments on its own. This will be "information and technological assistance in the calculations", although this concept is not officially explained anywhere. As a result, the organization fulfills the requirements established by the Tax Code of the Russian Federation, therefore, all operations carried out by it are not subject to VAT on the basis of clause 4, clause 3, Art. 149 of the Tax Code of the Russian Federation.

It should also be taken into account that in accordance with paragraph 7 of article 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer.

Exemption from VAT will allow you to reduce the price to increase competitiveness, as well as get additional profit.

6. Exclusion from the tax base for VAT of funds received to pay for services to privileged categories of citizens.

In accordance with paragraph 2 of Article 154 of the Tax Code of the Russian Federation, when selling goods (works, services), taking into account subsidies provided by the budgets of the budgetary system of the Russian Federation in connection with the use by the taxpayer of state regulated prices, or taking into account the benefits provided to individual consumers in accordance with the law, the tax base is determined as the cost of goods (works, services) sold, calculated on the basis of their actual sales prices.

The amounts of subsidies provided by the budgets of the budgetary system of the Russian Federation in connection with the use by the taxpayer of state regulated prices, or benefits provided to individual consumers in accordance with the law, are not taken into account when determining the tax base.

The tax authorities believe that the amounts to cover losses and the amounts that compensate the taxpayer's expenses are not included in the VAT tax base. At the same time, funds received to pay for services to privileged categories of citizens should be included in the tax base on the basis of paragraphs. 2 p. 1 art. 162 of the Tax Code of the Russian Federation (the tax base is increased by the amounts received for the sold goods (works, services) in the form of financial assistance, to replenish special-purpose funds, to increase income or otherwise related to payment for the sold goods (works, services).

Meanwhile, judicial practice is developing in favor of taxpayers:

So, in the Decree of the Federal Antimonopoly Service of the Moscow District dated April 26, 2010 N KA-A40 / 3844-10 in case N A40-101211 / 09-80-665, it was concluded that the subsidies provided to the company are not amounts received from an increase in income. These funds cannot be included in the tax base on the basis of Art. 162 of the Tax Code of the Russian Federation, because they were received as part of targeted financing aimed at repaying the company's expenses. “As the courts correctly pointed out, from the meaning of s.p. 2 p. 1 art. 162 of the Tax Code of the Russian Federation does not entail the taxpayer's obligation to include the amount of subsidies in the VAT taxable base, since such funds cannot be regarded as received for goods (works, services) sold in the form of financial assistance, to replenish special-purpose funds, to increase income or otherwise related to payment for goods (works, services) sold.

In view of the foregoing, the courts correctly concluded that subsidies granted to a taxpayer as a result of his application of state regulated prices or the provision of benefits to individual consumers in accordance with the law should not be included in the tax base for value added tax.

A similar conclusion was made by the Federal Antimonopoly Service of the Volga District in its Decree dated February 12, 2009 in case N A06-2848 / 2008 - since budget funds were used to reimburse expenses associated with the sale of utility services by an enterprise at preferential prices, they cannot be included in the taxable base for VAT. The argument of the tax authority that such funds are subject to inclusion in the tax base on the basis of paragraphs. 2, paragraph 1, article 162 of the Tax Code of the Russian Federation, was declared insolvent.

7. Tax scheme for the sale of property without VAT through a simple partnership.

The Tax Code of the Russian Federation does not require the recovery of VAT when transferring property to a simple partnership. This was confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation, indicating in its Decree No. 2196/10 dated 06/22/2010 that the norms of the Tax Code of the Russian Federation do not establish for a taxpayer who has entered into a joint activity agreement (simple partnership agreement) the obligation to restore the tax previously presented to deduction. “The provisions of Art. 39 and 146 of the Tax Code of the Russian Federation, since the circle of persons who are entrusted with the obligation to restore the tax previously declared deductible is established by Art. 170 of the Code and is not subject to broad interpretation. The fact that, according to paragraph 3 of Art. 39 of the Tax Code of the Russian Federation, contributions under a simple partnership agreement are not recognized as sales, it only indicates that such a transfer does not form an object of value added tax. At the same time, operations carried out under a simple partnership agreement are recognized as an object of value added tax in accordance with Chapter 21 of the Tax Code of the Russian Federation, and the calculation and payment of this tax, including the application of tax deductions, is carried out by a participant in the partnership in the manner prescribed by Article 174.1 of the Tax Code of the Russian Federation " .

In view of the foregoing, a tax scheme for the sale of property without VAT through a simple partnership is acceptable, when several participants make contributions to the joint activity in the form of immovable or movable things, as well as cash, and when the relationship is broken, they simply exchange contributions.

8. In addition to the above schemes and methods for optimizing VAT, there are also many other ways:

a) registration instead of prepayment or advance payment of a loan agreement. Under the terms of such a loan agreement, the buyer provides a loan to the seller in an amount equivalent to the amount of the advance. The date of return of borrowed funds is close to the date of delivery of goods (rendering of services, performance of work). At the same time, it is necessary to indicate in the contract of sale that the goods (work, service) will be delivered without receiving an advance payment. It is also desirable that the loan amount does not coincide with the amount of the cost of the goods (work, services), and the date of return of borrowed funds does not coincide with the date of delivery of the goods (performance of work, provision of services);

b) registration instead of an advance payment or an advance payment of an agreement on a deposit. A deposit in accordance with the Civil Code of the Russian Federation is a sum of money issued by one of the contracting parties on account of payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution. Thus, the deposit is not an advance payment for goods (works, services). Its purpose is to ensure the fulfillment of obligations. Consequently, the seller does not need to charge VAT on the amount received as a deposit; c) buyers of goods subject to VAT at a rate of 10% may overestimate the deduction of VAT on prepayment. The Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 10120/10 dated January 25, 2011 came to the conclusion that VAT on the prepayment amount can be calculated at the estimated rate of 18/118, regardless of what kind of goods it is planned to supply in the future under the contract: taxable at a rate of 18 % or 10%. It follows from this that goods, the sale of which is taxed at a rate of 10%, are more profitable to purchase on an advance payment. In this case, the seller will issue an advance invoice, where VAT will be calculated at a rate of 18, not 10%. Naturally, then, these amounts will have to be adjusted and paid additional tax. But the organization benefited from VAT due to the time gap between prepayment and shipment. The larger this time gap, the greater the benefit.

However, when using all these, as well as other schemes and methods for optimizing VAT, one must clearly remember and follow the basic rule: all methods and schemes must necessarily have an economic justification and proper documentation, all business transactions must be accompanied by primary documents drawn up in the manner prescribed by law .

In addition to the above, in conclusion, some more practical conclusions should be said:

You should always remember another rule of tax optimization: the scheme should be invisible to inspectors;

When choosing specific forms of optimization, it is imperative to determine the acceptable degree of tax risks, including taking into account law enforcement and judicial practice;

The introduction of any VAT optimization method must have clearly defined business objectives and be accompanied by a strong legal justification, and only the result of this will be a tax benefit.

With all this, it should be borne in mind that unsuccessful optimization of not only VAT, but also any other tax, can lead to conflicts of the organization not only with the tax authorities, but also with its counterparties and with its employees.

Yuri Fedotenko