Retroactive VAT exemption. Exemption from VAT How to refuse VAT in a year
VAT payers can receive exemption from VAT only in relation to domestic transactions subject to this tax (Article 145 of the Tax Code of the Russian Federation). That is, you still have to pay VAT when importing goods into the territory of the Russian Federation (clause 3, article 145 of the Tax Code of the Russian Federation).
If there is a VAT exemption, taxpayers:
- do not calculate and pay VAT in relation to domestic transactions (clause 1, article 145 of the Tax Code of the Russian Federation);
- do not submit VAT returns to the tax office (Letter of the Federal Tax Service dated 04.06.2015 No. GD-4-3 / [email protected]);
- do not keep a book of purchases (Letter of the Federal Tax Service dated 04.29.2013 No. ED-4-3 / [email protected]). Since it is conducted for the purpose of determining the amount of tax to be deducted (clause 1.2 of the Rules for maintaining a purchase book, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137). And if there is an exemption from VAT, organizations and individual entrepreneurs are not entitled to VAT deductions (clause 3, clause 2, article 170, clause 1, clause 2, article 171 of the Tax Code of the Russian Federation);
- issue invoices to buyers without allocating the amount of tax, but at the same time the entry “Without tax (VAT)” is made (clause 5 of article 168 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 05.26.2015 No. 03-07-14 / 30264), register these invoices in the sales book (clause 3 of article 169 of the Tax Code of the Russian Federation, clauses 1, 3 of the Rules for maintaining the sales book, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137);
- include the input VAT presented by suppliers in the cost of purchased goods (works, services).
If the VAT exempt payer, despite the exemption, issues an invoice to the buyer with the allocated tax amount, then he will have to pay it to the budget and submit a VAT return to the IFTS at the end of the tax period (clause 5, article 173, clause 5 article 174 of the Tax Code of the Russian Federation).
Who can get VAT exemption
Organizations and individual entrepreneurs under the general taxation regime that do not sell excisable goods and whose proceeds from the sale of goods (works, services) excluding tax for 3 consecutive calendar months amounted to no more than 2 million rubles can receive exemption from VAT. (clause 1, article 145 of the Tax Code of the Russian Federation). In this case, revenue is considered for those transactions that are subject to VAT (Letter of the Federal Tax Service dated May 12, 2014 No. GD-4-3 / 89 [email protected]). From the beginning of the month following these 3 months, the payer can take advantage of the VAT exemption.
UAT payers and VAT exemption
Organizations and individual entrepreneurs applying the UAT, from 01/01/2019, are generally recognized as VAT payers (part 12, article 9 of the Federal Law of 11/27/2017 No. 335-FZ). To release UAT payers from fulfilling their duties as a taxpayer for VAT, a special procedure applies from the specified date.
Those organizations and individual entrepreneurs that transfer to the Unified Agricultural Tax and exercise the right to exemption in the same calendar year have the right to exemption from the performance of duties of VAT payers. For those who already apply the EAT, in order to be exempt from VAT, it is necessary that for the previous calendar year the amount of income from the sale of goods (works, services) on the EAT activity does not exceed a certain limit. At the end of 2018, such a limit, excluding VAT, is 100 million rubles, for 2019 - 90 million rubles, for 2020 - 80 million rubles, for 2021 - 70 million rubles, for 2022 and subsequent years - 60 million rubles.
How to get VAT exemption
The application of the VAT exemption must be notified to the tax authorities. To do this, no later than the 20th day of the month from which it is supposed to start applying the exemption, you must submit to your IFTS (clause 3 of article 145 of the Tax Code of the Russian Federation):
- notification of the use of the right to exemption from the performance of taxpayer obligations related to the calculation and payment of VAT, in the approved form (approved by Order of the Ministry of Taxation of the Russian Federation dated 04.07.2002 No. BG-3-03 / 342);
- an extract from the balance sheet (for organizations);
- an extract from the sales book;
- an extract from the book of accounting for income and expenses and business transactions (for individual entrepreneurs) (clause 6 of article 145 of the Tax Code of the Russian Federation).
Extracts can be provided in any form, there are no approved samples for them.
Please note that UAT payers applying for VAT exemption do not have to submit extracts - they only submit a notification.
VAT exemption period
VAT exemption is granted for 12 consecutive calendar months. And before the expiration of the specified period, it is impossible to refuse the release (clause 4, article 145 of the Tax Code of the Russian Federation). But the payer may lose the right to exemption. This will happen if, during the exemption period:
- proceeds from the sale of goods (works, services) excluding VAT for any 3 consecutive calendar months will exceed 2 million rubles;
- the payer will start selling excisable goods.
Then, starting from the month in which at least one of these events occurred, the payer is considered to have lost the right to exemption and must begin to calculate VAT in the general manner (clause 5 of article 145 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated 06.05.2010 No. 03-07- 14/32).
But UAT payers who have received exemption from VAT are not entitled to refuse it on their own even after 12 months. They can only lose their right to exemption from VAT. This will happen if the amount of income received from the sale of goods (works, services) in the course of carrying out activities transferred to the UAT exceeded the above limit. Or if there was a sale of excisable goods. From the 1st day of the month in which any of these circumstances arose, the UAT payer loses the right to exemption from VAT. At the same time, he will not be able to get such a right again in the future.
Confirmation of eligibility for VAT exemption
By the 20th day of the month following the 12th month of the exemption period, you must send to your IFTS a notification of either the extension or refusal to use the right to exemption and documents that confirm that for the past "exempt" year, the amount of sales proceeds for every 3 consecutive months, excluding tax, was within 2 million rubles. (clause 4, 6 article 145 of the Tax Code of the Russian Federation).
Payers of the unified agricultural tax exempted from VAT are not required to submit annually documents confirming the right to exemption.
The opportunity for organizations and individual entrepreneurs on the general taxation system is provided by Article 145 of the Tax Code of the Russian Federation.
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Once a VAT exemption has been obtained, the company has no obligation to charge the tax and loses the right to a refund.
What is needed for this
Taxpayers must comply with the conditions under which the exemption is granted and apply in form to the IFTS.
The document is drawn up in the approved form.
VAT payers are granted exemption if they maintain a general system of taxation and charge tax.
When switching from special to general regime, it is necessary to fulfill the conditions for granting benefits.
Who has the right
The right to exemption can be obtained by an enterprise not earlier than 3 months after registration.
The company has the right to submit an application if:
- Revenue within 3 months is not more than 2 million rubles. The amount is determined without the value of the accrued VAT.
- There is no sale of excisable goods and mineral raw materials.
- In the presence of excisable trade, the payer shall carry out separate accounting of income and expenses in accounting and tax accounting.
There are restrictions under which VAT exemption is not granted.
Organizations and individual entrepreneurs do not get the opportunity:
- Acting as a tax agent when leasing state or municipal property, conducting transactions for the purchase of goods from foreign companies.
- Producing operations for the import of goods into the territory of the Russian Federation.
The entire period during which the exemption is valid, the taxpayer must adhere to the requirements put forward by the Tax Code of the Russian Federation.
legal basis
The taxpayer may apply the VAT exemption within 12 calendar months from the date of notification.
The essence of the action of the document is to notify the Federal Tax Service of the beginning of the application of the exemption. The notification deadline is no later than the 20th day of the month from the beginning of which the payer does not charge VAT.
If discrepancies are found by the IFTS inspectors, VAT is restored for payment.
The inconsistencies include:
- late notification;
- lack of supporting documents;
- identification of grounds that do not allow the application of the exemption.
When calculating the deadline for filing a notification, the legal right of the taxpayer to send documents by mail must be taken into account. The date of receipt is considered the 6th day after sending the registered letter.
On what terms
Prior to the transition to a new regime - exemption from VAT, the taxpayer had the right to a deduction for goods that were received for conducting activities.
The taxpayer needs to restore the VAT previously accepted for deduction as part of.
Partially, materials, goods and raw materials were used during the VAT period. The second part of the received assets settled in the warehouse in the form of balances.
The recovery period for VAT payable must precede the month in which the notification is submitted. This procedure also applies to the previously made deduction for fixed assets and intangible assets.
For fixed assets and intangible assets, the amounts of VAT related to the underdepreciated amounts of the asset are subject to recovery.
Process Specifics
A taxpayer who decides to apply an exemption must thoroughly study the pros and cons of not charging VAT.
It is necessary to conduct an inventory of the balances to determine the recovered amount payable, or return the balances to the supplier or transfer to another organization for safekeeping with posting to the warehouse.
Otherwise, the amount of tax payable can be decent.
For legal entities
Legal entities that begin to apply the benefit must provide.
The VAT amount of the incoming transfer of the benefit is added to the purchase price of the good or service.
The use of benefits must be fixed in the accounting policy. The release and continuation of the regime is formalized by notification.
What are the deadlines
The exemption is valid for 12 calendar months, starting from the month of notification.
In case of violation of the rules for the provision - excess of revenue, trade in excisable goods, the payer must pay the tax in full.
The payment is accompanied by the submission of a declaration with the accrued VAT for the entire period of exemption, and not only from the moment of violation of the conditions.
The accrued tax is paid to the budget with the amount of penalties calculated independently. When calculating the penalty, you can use the calculator posted on the IFTS website.
Tax must be paid prior to filing an amended return to avoid penalties in the form of fines for non-payment of tax.
What exactly is liberation?
Taxpayers who apply the VAT exemption do not:
- issuing invoices for revenue and advance payments (since 2019);
- charge of tax;
- payment of VAT, unless they are tax agents.
- deduction of VAT amounts charged by suppliers of goods or services.
Organizations or individual entrepreneurs do not submit a declaration with completed calculation sections and an indication of the taxable base.
Only the title page and section 1 are submitted with dashes in the lines for payment or reimbursement of amounts.
If invoices were issued by the taxpayer during the exemption period, a declaration is submitted indicating the taxable base and the amount of tax payable.
The deductions do not apply. A taxpayer who erroneously calculated VAT does not lose the right to apply the exemption.
Notice of exercise of right
Companies that have begun to apply the VAT exemption submit a notification of the use of the right to the IFTS.
The composition of the document confirming the exemption includes data on the taxpayer, his details - TIN, address, telephone number.
Data on revenue for the previous 12 months and the last 3 months with a breakdown are indicated. The form contains a list of attached documents.
Attached to the notice:
All documents are submitted in copies certified in accordance with the generally established procedure. Documents are submitted in any form. The condition is the possibility for the inspector to receive information about the proceeds received.
Extension
The taxpayer is granted exemption from VAT for a period of 12 calendar months. A shorter benefit period is not available.
You can stop applying the exemption only on your own, restoring the tax payable for the entire period. Additional penalties will be charged.
At the end of the period, the taxpayer makes a decision to terminate the application of benefits or extend the exemption. A notification is submitted to the IFTS by analogy with the original document.
Documents are attached to the notification in the same order as for the initial application.
If the taxpayer refuses to continue using the exemption, a notice of refusal to apply the regime is submitted. Cancellations cannot be made within the 12-month benefit period.
Consequences in 2019
Taxpayers who have been exempted from paying VAT retain the obligation to indicate in the column "VAT amount" the indicator "without VAT".
In 2019, the right not to issue invoices was given to organizations exempt from paying VAT in accordance with.
Starting from 2019, the “liberated people” will also have the opportunity not to issue invoices in accordance with Article 145 of the Tax Code of the Russian Federation. This possibility must be fixed in the accounting policy of the organization or individual entrepreneur.
Despite the simplification of document flow, since 2019, taxpayers are required to keep registers of invoices.
The duty concerns incoming documents and applies to companies using special regimes - UTII and USNO.
VAT exempt taxpayers are not required to file a declaration electronically. There is a right to submit a document on paper in person or by mail.
pros
Indirect tax VAT has a significant value in the composition of the cost of goods.
When taxpayers refuse to pay VAT, they have the opportunity to:
- reduce the selling price of goods, the cost of works or services;
- in parallel, not to reduce the cost due to the inclusion of the seller's VAT in the initial purchase price;
- exclude separate accounting for low turnover with the presence of retail and wholesale sales.
Taxpayers reduce the company's document flow and simplify accounting when applying the exemption.
Flaws
Getting VAT exemption also has its downsides.
Taxpayer:
- may lose a number of contracts for the supply of companies charging VAT;
- must restore tax payable on balances;
- the amount of restored VAT is not taken into account in the expenses of the enterprise;
- in case of violation of the conditions of release, you will need to pay tax and penalties.
In the event of a legal waiver due to the expiration of the period of validity, the taxpayer will not be entitled to apply the deduction on balances in the new period.
The amount of VAT on goods purchased during the exemption period is included in the cost of the goods when they are posted to the warehouse.
Questions
Taxpayers exempt from paying VAT or planning to transition often have questions about clarifying the rules for keeping records.
There is a small number of explanatory letters of legislation on this topic.
Release under USN
Taxpayers applying the simplified tax system do not have the obligation to charge VAT. There is no need to issue invoices.
Since 2019, the need to maintain a journal of received invoices has been imputed.
The absence of a journal will be considered by the IFTS as ignorance of one document.
Do I need to submit a declaration?
The taxpayer upon release has an obligation to file a declaration. It is necessary to take into account the fact that it is possible to lose the exemption if the revenue limit is exceeded and so on.
Lack of a declaration may increase sanctions upon termination of the benefit.
When VAT is restored, the amount of fines for evasion from filing a declaration with accruals will be added to the accrued tax and penalty interest.
The amount of the fine for these violations is 5% of the accrued tax. The amount of the fine cannot exceed the 30% limit and be less than 1,000 rubles.
Exemption upon import of equipment (import)
Medical equipment included in the list established as vital is fully exempt from VAT on import.
The passport of the imported document must contain the OKPO code that matches the number in the resolution.
How is this a partial release?
Taxpayers selling excisable goods along with non-excisable shipments are eligible for VAT exemption.
The partial exemption used can only be realized if separate accounting is maintained.
The partial exemption also includes a change in the 18% rate to a 10% rate for the import of medical equipment, medicines and technology. The composition of the equipment does not apply to vital equipment.
If the subject is on UTII?
When switching to a general taxation regime after UTII, there is a difficulty in obtaining an exemption.
The exemption notice includes, as part of the attachment, documents that are not maintained. IP on UTII does not keep a book of income and expenses.
It is not possible to prove the amount of revenue from the previous period. In this option, obtaining an exemption is possible only after conducting activities at OSNO for 3 months.
Is it possible for medical equipment
The legislation provides exemption from VAT on the sale of vital medical equipment.
The right is established by Art. 149 of the Tax Code of the Russian Federation, the approval of the list of equipment is determined by the above Government Decree.
As you know, organizations and individual entrepreneurs are entitled to exemption from fulfilling their obligations as a VAT payer under Art. 145 of the Tax Code of the Russian Federation, subject to the revenue limit. The application of this exemption, due to the requirements of the Tax Code, must be notified to the tax authority within the prescribed period. Is it possible to apply the exemption retroactively if, for example, an individual entrepreneur loses the right to use a preferential tax regime or he is charged VAT based on the results of tax control?
According to paragraph 3 of Art. 145 of the Tax Code of the Russian Federation, persons exercising the right to an exemption must submit an appropriate written notification and the documents specified in clause 6 confirming the existence of the right to such an exemption to the tax authority at the place of their registration no later than the 20th day of the month from which the specified preference. The notification form was approved by Order No. BG-3-03/342 of July 4, 2002 of the Ministry of Taxation of the Russian Federation.
Key moment
Article 145 of the Tax Code of the Russian Federation establishes a notification procedure for the implementation of an individual entrepreneur's right to exemption from the performance of duties of a VAT payer.
The Plenum of the Supreme Arbitration Court spoke about how to understand the presented norm in paragraph 2 of the Resolution No. 33 of May 30, 2014.
When interpreting this rule, the courts must proceed from the fact that, according to its meaning, the taxpayer only informs the tax authority of his intention to use the specified right to exemption, and the consequences of violating the notification period are not defined by law. At the same time, by virtue of law, such notification may be made after the start of application of the exemption.
Therefore, persons who actually used the exemption from the performance of taxpayer obligations related to the calculation and payment of tax in the relevant tax periods cannot be denied the right to such exemption solely on the grounds of failure to submit notices and documents within the prescribed period.
Thus, the mere failure to submit the relevant documents, including notification, to the tax authority within the prescribed period does not necessarily indicate the absence of the right to exemption from VAT.
Loss of the right to use PSNO
Quite often, as practice shows, individual entrepreneurs miss the next deadline for paying the "patent" tax, in connection with which they lose the right to apply PSNO and are considered to have switched to the general taxation regime from the beginning of the tax period for which the entrepreneur was granted a patent. The same results in non-compliance with the established limit on income from sales and the average number of employees (clause 6 of article 346.45 of the Tax Code of the Russian Federation). As a result, the individual entrepreneur must calculate personal income tax and VAT. But is it possible to avoid paying VAT in this situation by exercising the right to exemption under Art. 145 of the Tax Code of the Russian Federation? The answer is yes, but there is a nuance: you still need to submit documents for exemption to the tax authority. When to do it? In order to avoid problems, it is best to submit documents as soon as the fact of the loss of the right to use PSNO becomes known. In turn, the tax authority must take into account the application of the individual entrepreneur on the use of the exemption submitted for the period in which he lost the right to be on the PSNO, and determine whether he has this preference on the basis of the documents submitted (Letter of the Ministry of Finance of the Russian Federation of March 18, 2015 No. 03- 07‑15/14580 ).Similarly, you can act in a situation of loss of the right to apply the simplified taxation system.
VAT accrual - the result of tax control
To resolve the issue of whether it is possible to use the exemption from VAT under Art. 145 of the Tax Code of the Russian Federation in a situation where the tax authority charges VAT as a result of an audit, we will involve judges. They are guided by the legal position of the Presidium of the Supreme Arbitration Court, formed in the Decree of September 24, 2013 No. 3365/13.For cases when an entrepreneur becomes aware of the need to pay VAT as a result of tax control measures carried out by the inspection, the procedure for exercising the right to exemption from tax is not provided by the Tax Code. However, the absence of an established procedure does not mean that the specified right cannot be exercised by the entrepreneur.
The Plenum of the Supreme Arbitration Court, in clause 5 of Resolution No. 57 of July 30, 2013, explained that a taxpayer can exercise the right to a tax benefit not used in previous tax periods by submitting:
- amended tax return;
- applications within the framework of an on-site tax audit (in terms of benefits related to the subject of the audit and the audited tax period);
- applications to the tax authority when paying tax on the basis of a tax notice.
Late payment of "patent" tax and "zero" VAT returns
The position of the Presidium of the Supreme Arbitration Court, set out in Decree No. 3365/13, was guided by the Arbitration Court of the Moscow Region when adopting the Decision dated 09.10.2015 in case No. A41-40301/15.Heart of the matter
The individual entrepreneur has lost the right to use PSNO due to the payment of the "patent" tax later than the deadline. And after that, he submitted to the tax authority for the period of his stay at the PSNO “zero” VAT declarations. According to the results of the conducted desk audits, the tax authorities charged VAT, the corresponding amounts of penalties and fines.
The arbitrators considered that the submission by an entrepreneur of VAT returns with zero figures for the audited period does not indicate recognition of the obligation to pay such tax and does not exclude the right of the taxpayer to use the exemption from VAT. The determining factor was that the during the trial filed an application and notification of VAT exemption.
This decision was left unchanged by the decisions of the Tenth Arbitration Court of Appeal of December 21, 2015 No. 10AP-14141/2015 and the Arbitration Court of the Moscow Region of March 28, 2016 No. F05-2833 / 2016.
Reminder
Taxpayers applying exemption from the obligation to calculate and pay VAT in accordance with Art. 145 of the Tax Code of the Russian Federation, do not submit VAT returns, except when they are tax agents (Letter of the Federal Tax Service of the Russian Federation dated 04.06.2015 No. GD-4-3 / [email protected]).
Promotion services are common, not "imputed" activities
The taxation system in the form of UTII, as you know, can only be applied to strictly defined types of business activities. The incorrect qualification of an individual entrepreneur as an “imputed” activity (which, for obvious reasons, as a rule, is already revealed by the tax authorities), if he does not use the simplified taxation system at the same time, unequivocally leads to the need to pay taxes under the usual taxation system for the period of application of the preferential tax regime. This is how events unfolded in case No. A72-8588/2015.Heart of the matter
In the audited period, the merchant carried out retail trade in food products and was a UTII payer, and also provided marketing services (services to support and promote tobacco products). Since the provision of services for the promotion of goods on the market does not apply to retail trade, it falls under the general taxation system, the inspection assessed VAT and the corresponding amounts of penalties and tax sanctions.
For individual entrepreneurs engaged in the provision of catering services, this case is of interest, since they also conclude contracts with suppliers for the promotion of goods and mistakenly assume that they received income from such transactions as part of the provision of catering services (and this activity, under appropriate circumstances, may be transferred to the payment of UTII).
It follows from the materials of the case that the businessman claimed the right to release after the decision was made to hold him accountable, but before the decision of the higher tax authority on the appeal. The judges pointed out that the failure to submit an application during an on-site tax audit should not deprive the entrepreneur of the relevant right, and rejected the tax authority's argument about the failure to submit the documents referred to in paragraphs 3 and 6 of Art. 145 of the Tax Code of the Russian Federation. The latter is due to the fact that the receipt by the merchant of income of more than 2 million rubles. for every three consecutive calendar months during the audit it was not established (Resolution of AS PO dated 19.05.2016 No. F06-8385 / 2016).
Instead of "imputed" activity - ordinary
A similar situation to the previous one (when it turned out that one of the activities was qualified by the IP as “imputed” unlawfully) was considered in case No. A59-4135/2014.As a result, the arbitrators pointed to the possibility of the entrepreneur exercising the right to release and at the stage of judicial review of the decision of the tax inspectorate. Otherwise, it would entail non-compliance with the goal of introducing the institution of exemption from the performance of taxpayer duties, which consists in reducing the tax burden in relation to taxpayers who have insignificant turnover in the sale of goods (works, services) subject to VAT (Resolution of the AC Far East of September 24, 2015 No. Ф03-3920 / 2015).
Loss of the right to apply the USNO
The tax consequences of this loss can also be reduced by taking advantage of the right to exemption from VAT on Art. 145 Tax Code of the Russian Federation by submitting the necessary documents to the tax authority. At the same time, as in previous cases, this can also be done during the trial (example - Decree of AS UO dated February 12, 2016 No. F09-11894/15 in case No. А50-7406/2015).For your information
For the purposes of applying Art. 145 of the Tax Code of the Russian Federation, receipts from tax-free transactions (exempt from taxation) do not need to be taken into account when determining revenue (clause 4 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33). At the same time, the absence of taxable income in the three months preceding the period of using the exemption cannot be a basis for refusing to apply the benefit (Resolution of the AC UO dated January 21, 2016 No. Ф09-10679 / 15 in case No. А60-16672 / 2015).
About supporting documents
It should be remembered that in addition to the notification to the tax authority, it is imperative to submit (albeit with violation of the deadline) documents confirming the right of the individual entrepreneur to exemption from VAT. (To be more precise, the entrepreneur must provide evidence of receipt by him, during the three consecutive calendar months preceding the period of application of the exemption, of proceeds from the sale of goods (works, services) in an amount not exceeding 2 million rubles in aggregate.) Otherwise, it will be considered that the notification procedure does not observed. This is how the case No. A12-20457/2015 ended (see Resolution of the AS PO dated February 10, 2016 No. F06-5339/2015) .
Paragraph 6 of Art. 145 of the Tax Code of the Russian Federation provides that, in addition to the notification, the entrepreneur must submit to the tax authority:
- an extract from the book of accounting for income and expenses and business transactions;
- an extract from the sales book.
For individual entrepreneurs who have switched from the simplified taxation system to the general taxation regime, a document confirming the right to exemption is an extract from the book of income and expenses of organizations and individual entrepreneurs using the “simplification”. A merchant who was on the USNO cannot submit a sales book, since the use of this taxation regime cancels the duties of a VAT payer, including in terms of maintaining a sales book, therefore, we believe that, together with a notification, he should present only an extract from the book of accounting for the income of individual entrepreneurs, applying USNO.
And what document confirming the right to exemption can be submitted by an individual entrepreneur who mistakenly applied the taxation system in the form of UTII? After all, entrepreneurs-"sane" are not required to keep a book of income and expenses, since their tax liabilities do not depend on these indicators. Thus, in case No. A65-3215 / 2015, an entrepreneur who did not consider herself obliged to pay VAT in connection with the application of the “imputed” taxation system presented as documents confirming the right to exemption from Art. 145 Tax Code of the Russian Federation, statement of current account and book of income and expenses. The dispute was resolved in favor of the businesswoman (see Resolution AS PO dated 08.12.2015 No. F06-3511/2015).
If the income from the sale of goods (works, services) of an individual entrepreneur is small (does not exceed 2 million rubles in aggregate within three months, excluding VAT), he has the right to take advantage of the exemption from the obligation to calculate and pay VAT by submitting an appropriate notification to the tax authority and documents. Moreover, the right to apply this preference also applies to the situation when an individual entrepreneur loses the right to use a preferential tax regime. To do this, the merchant must submit a notification to the tax authority with documents confirming the right to the benefit attached to it. The application of the exemption can be declared after the individual entrepreneur has become aware of the need to pay VAT from the decision of the tax authority, and this can be done even at the stage of a judicial review of the decision of the tax inspectorate (the foregoing is confirmed by judicial practice). But if the notification is not filed either during the tax audit, or at the stage of filing a complaint with a higher tax authority, or during the trial, the judges will agree with the conclusion that the taxpayer has not complied with the requirements provided for Art. 145 Tax Code of the Russian Federation. There are also examples of this in arbitration practice.
Sent for information and use in the work by the Letter of the Federal Tax Service of the Russian Federation dated 06.29.2015 No. GD-4-3 / [email protected]By definition of the Supreme Court of the Russian Federation No. 306-KG16-5196 dated May 19, 2016, it was refused to transfer the said case to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation.
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On what grounds can subjects be exempted from paying VAT?
Each business entity, whether it is an organization or an individual entrepreneur, is obliged in the course of its work to charge VAT on the goods they produce and the services they provide (Article 143 of the Tax Code of the Russian Federation). But the provisions of Art. 145 of the Tax Code of the Russian Federation, the possibility of exemption from VAT is allowed if the total amount of revenue is less than 2,000,000 rubles. minus indirect taxes for the past 3 months. This rule does not apply to those who pay tax when moving goods through the customs territory of the Russian Federation. Also, these provisions do not affect tax agents.
If an economic entity decides to exercise the right to exemption from VAT, the authorities of the Federal Tax Service should be notified of their intention. Notification with supporting documents is provided both in person and by mail. At the same time, you should not wait for a response from the tax authorities, since when submitting documents, the taxpayer already declares his right to exemption.
For more information on how to start working under the new conditions, read the article How to start applying for VAT exemption.
In some cases, exemption from VAT is provided immediately after the change in the tax regime that occurred due to changed circumstances. So, officials expressed their approval for exemption to entrepreneurs who previously worked using a patent. Read about this in the article “Individual entrepreneur who has flown off a patent can immediately be exempt from VAT”.
Previously accepted for deduction in accordance with Art. 171 and 172 tax amounts before the start of VAT exemption must be restored and transferred to the budget. This must be done immediately before using the received right or in the same tax period if the exemption from VAT occurred in the 2nd or 3rd month of the quarter.
In force majeure circumstances, when the taxpayer finds out about the illegality of being on the simplified tax system, UTII or other preferential taxation system, he is threatened with withholding the amount of VAT that could have been accrued for this period of time. However, this circumstance can be avoided. You can learn more about this from the article “Did the audit confirm the illegality of the special regime? There is a chance to avoid paying VAT.
The provision of intermediary services is recognized as an object of VAT taxation. But at the same time, there are exceptions in which intermediaries are also entitled to take advantage of the VAT exemption. The cases in which such a right is allowed are listed in the material "Which intermediary services are not subject to VAT" .
Some transactions receive VAT exemption only under certain conditions. Thus, the sale of products of intellectual activity is not taxed only if there is a license agreement. The position of officials on this matter is reflected in the material “Is it possible not to pay VAT when transferring rights to use software without a license agreement?” .
In what cases the transfer of rights to software is not subject to VAT, is also discussed in the materials:
The procedure for issuing an exemption
The right to exemption from VAT is exercised by notifying the Federal Tax Service in accordance with the established procedure. To do this, a document is drawn up in the form approved by order of the Ministry of Taxes of the Russian Federation dated July 4, 2002 No. BG-3-03 / 342, which should be sent to the tax office before the 20th day of the month following the month the decision was made.
After the transfer of documents confirming the possibility of exemption from VAT, the applicant is not entitled to refuse it for 12 months. The exception is cases where taxpayers have lost such a right, for example, due to an increase in revenue or cases of the sale of excisable products. After the expiration of the specified period, managers are required to either draw up a notice of the extension of the VAT exemption, or waive this right.
Under certain circumstances, it is unprofitable for the economic entity itself to exercise the right to VAT exemption for certain transactions. When carrying out specific types of activities, the legislation provides for only non-taxable transactions. However, there is a list of works and goods for sale, the taxation of which is carried out at the discretion of the entrepreneur. Read more about this right in our material "How to refuse VAT exemption?" .
Each organization has the right to independently decide whether it is worth obtaining an exemption from VAT. Indeed, in this case, it will be necessary to restore the tax previously accepted for deduction. In the presence of fixed assets with a high residual value, the procedure for exemption from VAT can be extremely disadvantageous. In addition, the amount of the restored tax will need to be transferred to the budget.
It is possible to notify the Federal Tax Service authorities of the waiver of the right to exemption from VAT in 2017 in any form, an example of which is available in the material "Sample notice of refusal to use the right to exemption".
Obligations of a taxpayer exempt from VAT
By notifying the IFTS of their right to exemption from VAT, an entrepreneur or organization does not lose the status of a VAT taxpayer. They get the right not to transfer tax to the budget for some time. In addition, there is no need to submit a tax declaration (if VAT was not indicated in the documents provided to buyers).
It is not necessary to provide the tax authorities with other documents confirming the subject's right to exemption from VAT, but it is necessary to have them available for presentation to fiscal officials upon request. You can read more about this in the material “It is not necessary to submit registration certificates with a declaration”.
And although, as a result of VAT exemption, enterprises and individual entrepreneurs get the opportunity not to transfer tax to the budget for some time, the obligation to issue invoices to counterparties remains. Subjects that have received exemption from VAT, as the tax rate in these documents, prescribe: "Without VAT." The final amount in the invoice also does not include tax.
When it arises and when it does not arise the need to register VAT in documents, you will learn from the material “In what cases is the cost indicated with and without VAT?” .
VAT exemption can be a beneficial perk, but there are many nuances and complex issues associated with it. To deal with them, you will be helped by relevant, constantly updated materials of our section “ VAT exemption » .
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 simplified taxation, for example, because the share of participation of other companies in your organization is more than 25% (Subparagraph 14, paragraph 3, article 346.12 of the Tax Code of the Russian Federation)?
You have a completely legal way to get rid of VAT for at least a year - to get exemption from it (Article 145 of the Tax Code of the Russian Federation). Many people know about this possibility, but when it comes to applying the exemption, various questions inevitably arise.
What is the beauty of liberation?
Within 12 calendar months (they begin to flow from the month in which you notified your IFTS of your desire to receive an exemption) you don't have to:
- on operations in the domestic Russian market. And the "input" VAT on purchased goods (works, services) is included in their cost;
- issue advance invoices and those invoices that you issue for yourself in one copy (for example, when performing construction and installation work);
- submit tax declarations (Decision of the Supreme Arbitration Court of the Russian Federation dated February 13, 2003 N 10462/02; Letter of the Federal Tax Service of Russia for Moscow dated November 17, 2009 N 16-15/120379).
From what will liberation not save?
To you have to pay VAT:
- when importing goods (Clause 3, Article 145, Clause 4, Clause 1, Article 146 of the Tax Code of the Russian Federation);
- when fulfilling VAT obligations (for example, when renting state or municipal property) (Article 161 of the Tax Code of the Russian Federation).
In addition, regardless of the exemption, you will need to:
- issue shipping invoices to buyers, in which VAT is not allocated and the note "Without tax (VAT)" is made (Clause 5, Article 168 of the Tax Code of the Russian Federation). Ignoring this requirement in at least one quarter is fraught with a fine from the inspection of 10,000 rubles. And if invoices were not issued for two or more quarters, then 30,000 rubles. (Article 120 of the Tax Code of the Russian Federation);
- keep books of purchases and sales, as well as journals of received and issued invoices. After all, those exempted from VAT do not cease to be its payers (Clause 3, Article 169 of the Tax Code of the Russian Federation), they simply receive a temporary tax exemption. In addition, the sales book and journal will be needed later in order to confirm compliance with the revenue limit for the period of application of the exemption, as well as to extend the exemption.
You will also have to submit VAT returns to the inspectorate for the quarters in which you are (Clause 3 of the Order, approved by Order of the Ministry of Finance of Russia dated October 15, 2009 N 104n):
(or) being exempt from VAT, nevertheless issued an invoice with the allocated tax amount (Letter of the Ministry of Finance of Russia dated 16.07.2009 N 03-07-14 / 69). The presented VAT will have to be paid to the budget, but you do not lose the right to VAT exemption (Letter of the Ministry of Finance of Russia dated 05/31/2007 N 03-07-14 / 16);
(or) acted as a tax agent for VAT (Clause 1 of the Procedure, approved by Order of the Ministry of Finance of Russia dated October 15, 2009 N 104n);
(or) paid VAT when importing goods from Belarus or Kazakhstan (Clause 3, Article 145, Clause 4, Clause 1, Article 146 of the Tax Code of the Russian Federation; Order of the Ministry of Finance of Russia dated 07.07.2010 N 69n).
Who has the right to release?
You can get an exemption from VAT if (Items 1, 2, Article 145 of the Tax Code of the Russian Federation):
- your revenue excluding VAT for the 3 months preceding the month from which you intend to apply the exemption did not exceed 2 million rubles;
- you do not sell excisable goods (for example, alcohol, tobacco, gasoline (Article 181 of the Tax Code of the Russian Federation)) or keep separate records of transactions for the sale of excisable and non-excisable goods (Clause 3 of the motivational part of the Definition of the Constitutional Court of the Russian Federation of November 10, 2002 N 313-O) ;
- Your company is not a member of the Skolkovo project.
Some people think that being in arrears on VAT or other taxes is a hindrance to obtaining an exemption. This is not so, which was confirmed to us by a specialist from the Ministry of Finance.
From reputable sources
Vikhlyaeva Elena Nikolaevna, Advisor to the Department of Indirect Taxes of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia
"Article 145 of the Tax Code of the Russian Federation does not link the application of the exemption from VAT with the absence of a taxpayer's arrears on this tax or other taxes."
What proceeds should be included in the eligibility test and what should not?
The Tax Code does not provide an answer to this question. If you read literally Art. 145 of the Tax Code, it turns out that absolutely all revenue must be taken into account, even that which is not subject to VAT. There has been no explanation on this topic for a long time. Therefore, we turned to a specialist from the Ministry of Finance.
From reputable sources
Vikhlyaeva E.N., Ministry of Finance of Russia
"When calculating revenue for the purposes of exemption from VAT, it is necessary to take into account all revenue from the sale of goods (including excisable goods), works, services (excluding tax), including revenue:
- from transactions not subject to VAT (Article 149, paragraph 2 of article 156 of the Tax Code of the Russian Federation);
- from transactions that are not recognized as an object of VAT (Clause 2, Article 146 of the Tax Code of the Russian Federation);
- from the sale of goods (performance of work, provision of services), the place of sale of which is not recognized as the territory of the Russian Federation (Articles 147, 148 of the Tax Code of the Russian Federation).
However, in revenue should not include amounts received from retail trade subject to UTII, if the VAT payer combines the general taxation regime with the payment of "imputed" tax.
Note: some courts believe that for the purposes of exemption from VAT, it is not necessary to include in the proceeds the amounts received from transactions that are not subject to VAT or do not form an object for this tax (Resolutions of the FAS ZSO dated 03.20.2012 in case N A45-11287 / 2011; FAS VSO dated January 18, 2011 in case N A19-9447/10; FAS SKO dated June 10, 2011 in case N A01-1343/2010). But there are those who share the position of the tax authorities (Resolution 12 AAS dated 03/06/2012 in case N A06-1876/2011; FAS PO dated 11/10/2011 in case N A06-1875/2011; A66-3032/2010).
And if there is no revenue, can the exemption be applied?
If there was no revenue for the previous 3 months before the exemption was applied, then it was equal to zero. Zero, as you understand, is less than 2 million rubles. Therefore, nothing seems to prevent the application of exemption. The same point of view was expressed (however, for a long time) by the Moscow tax authorities (Letter of the Federal Tax Service of Russia for Moscow dated 04.09.2006 N 19-11 / 077487). However, soon after that, the Ministry of Finance issued a Letter with the opposite position (Letter of the Ministry of Finance of Russia dated 03/28/2007 N 03-07-14/11). Even now, specialists from the financial department are against the release.
From reputable sources
Vikhlyaeva E.N., Ministry of Finance of Russia
"If during 3 consecutive calendar months preceding the month from which the taxpayer would like to apply the VAT exemption, he had no proceeds from the sale of goods, works, services, then there are no grounds for using the exemption."
How to get liberation?
It is necessary to submit to the inspection at the place of registration a notice of the use of the right to exemption in the approved form (Approved by Order of the Ministry of Taxes of Russia of 04.07.2002 N BG-3-03 / 342), as well as certain documents (Items 3, 6 of Article 145 of the Tax Code of the Russian Federation) .
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Situation at the time of filing |
List of submitted documents |
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You are on general mode |
Extract from the balance sheet (for |
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You switch to general mode: |
Extract from the relevant ledger |
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(or) with USNO or ESHN |
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(or) with UTII |
Extract from the balance sheet (for |
An extract from the balance must be made on the 1st day of the month from which you began to apply the exemption, and extracts from books and a journal - for 3 months preceding the exemption.
All statements can be submitted to the IFTS in any form. And you can also submit ordinary photocopies of balance sheets, books of accounting for income and expenses, sales books as an extract, assuring them with the signature of the head (entrepreneur) and seal.
We warn the head
If the company, being exempt from VAT, to please the client, will expose to him invoice with tax, then, despite the exemption, you will have to pay VAT to the budget.
These documents must be brought to the inspection no later than the 20th day of the month in which you began to apply the exemption (Clause 3, Article 145 of the Tax Code of the Russian Federation). If you send them by mail, then do it 6 working days before the 21st day of the specified month (Clause 6, Article 6.1, Clause 7, Article 145 of the Tax Code of the Russian Federation), and preferably by registered mail with an inventory of attachments.
Let's say you wanted to apply the exemption from May 2012. Then the notification had to be submitted no later than May 21, since May 20 is a day off (Clause 7, Article 6.1 of the Tax Code of the Russian Federation). The last day the notice had to be mailed is May 14th.
We do not advise you to be late with the submission of documents, since the tax authorities will certainly consider that in this case you are not entitled to VAT exemption. Specialists of the Ministry of Finance agree with them.
From reputable sources
Vikhlyaeva E.N., Ministry of Finance of Russia
"Failure to submit to the tax authority the documents required for exemption from VAT within the prescribed period means that the taxpayer is not entitled to use this benefit."
Accordingly, having discovered that you are using the exemption, and the documents were sent later than the deadline, the inspectors will certainly not miss the opportunity:
- charge you VAT from the month in which you started using the benefit, and penalties;
- to fine for non-payment of tax and non-submission of declarations;
- block the account for failure to submit a declaration (Clause 3 of Article 76 of the Tax Code of the Russian Federation; Resolution of the FAS VVO dated 04.20.2011 in case N A29-5471 / 2010).
By the way, similar problems await you if later the tax authorities find out that the documents you submitted contained inaccurate information and in fact you did not fit into the two millionth revenue limit (Clause 5 of Article 145 of the Tax Code of the Russian Federation).
Note
Some courts believe that the delay in filing documents (Resolutions of the FAS ZSO dated November 24, 2011 in case N A75-265 / 2011; FAS SZO dated December 7, 2010 in case N A42-2169 / 2010; A49-11485 / 2009), their submission before the start of a tax audit or failure to submit at all (Resolutions of the FAS UO dated February 21, 2011 N F09-11622 / 10-C2, dated August 21, 2009 N F09-5886 / 09-C2) do not deprive the taxpayer of the right to apply the exemption if all other conditions were met. But there are those who think otherwise (Resolutions of the FAS VVO dated 06/09/2011 in case N A29-5506 / 2010; 18 AAC dated 07/04/2011 N 18AP-5721/2011; 3 AAC dated 12/12/2011 in case N A33-3048 /2011). Therefore, it cannot be guaranteed that you will be able to recapture additional charges and fines through the court.
Already from the beginning of the month in which you timely submitted a notice of release to the inspection with all supporting documents, you will be required to use the benefit, since you cannot refuse it (Clause 4, Article 145 of the Tax Code of the Russian Federation). This means that you will not be entitled to claim VAT deductions.
