VAT
The object of taxation on value added is the sales of goods which represents transfer of title to them on a reimbursable basis (sub. 1 paragraph 1 article 146, paragraph 1, article 39 of NK). It often happens that the parties to the agreement provide that the right of ownership of the goods will pass to the buyer later shipment (for example, only at the time of the subsequent payment). In this case, at the time of transfer of goods subject to VAT yet. Despite this, the tax authorities insist that the seller must still charge VAT in the period of shipment of goods (one recent example – the Ministry's letter of 8 September 2010 No. 03-07-11/379). They rely on paragraph 1 of article 167 of the Tax code, which requires to determine the tax base for VAT at the time of shipment, if that occurs before the day of payment. Meanwhile, the tax base is the value characteristics of the object of taxation (clause 1, article 53 of the TC). Therefore, before arise the object could not appear and the tax base. However, it is a concern that inspectors do not take into account in their struggle to VAT upon shipment of the positions do not pass. Judging by arbitration practice wanting to argue with them is getting smaller.
Time of transfer of ownership does not affect the VAT – take out so positive inspection tax of the shipment period, – it would be logical and with the statement of deduction it is not to navigate. View whether at the time of acceptance of the goods by the buyer, but before the transfer of ownership, the conditions stipulated in the Tax code for deduction.
The condition of the first: the deductions shall be amounts of VAT in respect of goods "acquired for operations recognized objects VAT" (sub. 1 of paragraph 2 of article 171 NK). It follows from this definition that the deduction has value only intent to use the purchase for such operations, and not the fact of the beginning of use. This is an important caveat as to dispose of the property, the ownership of which has not yet been received, the buyer is prohibited by law (article 491 of the civil code), except cases when the contract provides otherwise (for example, the seller may permit the buyer to use the objects as fixed assets before the transfer of title to them).
Another possible stumbling block in the formulation of this condition is that the deduction is subject to VAT "purchased" goods. Since a purchase is commonly understood as the transfer of ownership, the tax authorities can insist that before the transfer of this right from the seller to the buyer of the goods does not satisfy this condition. However, "acquired" is not the same as "acquired": as you can see, the fact of transition of the property for the deduction is not important, important is "start" of the process that leads to acquisition, that is the beginning of performance under the contract, involving the transfer of ownership. In the same vein, we can understand the General characteristic amounts accepted to the VAT deduction: "a Deduction shall be amounts of tax presented to the taxpayer when acquiring goods". Because it doesn't say "at the time of purchase", you come to the conclusion that the deduction is important to the presentation of taxes within the framework of civil law relations involving the transfer of ownership. However, this is the "slippery" moment in proving the right to deduct at the time of the posting, but before obtaining the right of ownership.
The second condition consists in taking the purchase on the account (clause 1 of article 172 NK). Accounting means accounting – by virtue of paragraph 1 of article 54 of the Tax code, which requires to calculate the tax base on the basis of accounting. The rules need to reflect the last received by the organization of commodity-material assets, the ownership of which has not yet been received, on off-balance account 002 "the commodities and materials accepted for safe custody". Because these paragraph of article 172 does not contain provisions about what exactly the accounts – balance sheet or off-balance sheet– should be considered a purchase when posting to the account 002 this condition is satisfied.
The third condition – the existence of invoices (clause 1 of article 172 NK). It would seem that this condition is very simple, however, it is also possible to see the obstacle to the deduction at the time of receipt of the goods. Tax that is not excluded, will find that the invoice issued by the seller upon dispatch of goods but before their implementation, that is, before the transfer of ownership, does not entitle you to a deduction (one example of this approach can be found in the Ministry's letter of 22 July 2008 № 03-07-11/261). Paragraph 3 of article 168 of the Tax code really requires you to put invoices "with the implementation within five days from the date of shipment". However, firstly, the approach of the Ministry of Finance generally excludes the opportunity to exhibit giving the right to deduct the invoice in the cases when between the shipment and transfer of ownership takes place over five days, and then, based on the principle of equality of taxation (clause 3 NK) it must be recognized as incorrect. The words "in implementation" should be understood as "when the seller's performance of the contract, which provides for the implementation (i.e. the transfer of ownership of shipped goods)". Second, can not serve as a basis for denial of the deduction of such invoices, which allow the tax authorities to identify the seller, the buyer, the name and value of the goods, and also the rate and amount of tax (item 2 of article 169 NK). If given in the invoice data conclusively establish all of this information, to obtain the deduction it does not matter when he was discharged, in time, sooner or later.
So, as you can see, the Tax code has no provisions that directly or indirectly Pro-point deduction from the moment of transfer of ownership. Don't see the connection between them and the arbitration courts which had to consider such disputes. Thus, the Ninth arbitration appeal court of Moscow stated: "the Tax legislation does not eligible for a tax deduction under the VAT in dependence on placing the object on the account as the primary means of transfer of ownership and risk from the contractor to the customer, taking into account the works" (decree of 2 August 2010 No. 09AP-16435/2010-AK). In another decree (dated 8 December 2009 No. 09AP-23910/2009-AK), the same court noted that the tax legislation does not bind the right to apply tax deductions for VAT with the civil conditions of the contract relating to the date of transfer of ownership of the goods delivered.
Basic tools
Regarding the VAT charged on the purchased assets, the Tax code has a separate provision: the tax deductible in full at the time of the adoption of fixed assets on account of (par. 3 paragraph 1, article 172). With reference to him, the tax authorities claim that the deduction is possible only when accounting purchased for use as a fixed asset object to the account 01. This approach has long denied arbitration practice, including at the level of the Supreme Arbitration Court (YOU definition of 17 March 2008 № 2862/08).
Additional complexity connected with off-balance-sheet account, which should be considered such objects to obtain the right of ownership. In the case when the contract with the seller the buyer has the right to use such property from the time of receipt, often used account 001 "Leased fixed assets". The choice of this account is justified, since for such objects the organization actually gets the right to use and rent. Recognize this and the arbitration courts. So, Federal arbitration court Severo-the Western district the decision from 21 April 2004 No. A52/3052/03/2 rejected the argument of tax inspection that the transfer of ownership of the basic means they cannot be taken to account (on the basis of this argument, the tax authorities insisted on the impossibility of deduction of VAT), recognizing the legitimate deduction of tax at the time of the posting of objects in the account 001.
Another version of the inventory of such property in the account 002 "inventory items accepted to responsible storage". Reviewers can stick to the opinion that this account is only for those material values which the firm intends subsequently to consider either as commodities for sale or as raw materials. In order to avoid possible disputes in some firms possibly pretend that initially purchased the property as a commodity (at the time of obtaining ownership of it reflect on the account 40 "Goods") and later issued an order about using it as a fixed asset (amount accounting certificate and transferred to account 01).
Real estate
The right of property passes only at the moment of state registration of change of ownership. This process is slow, so it often happens that the buyer gets buildings and structures (and even begins to use them) long before the corresponding entry in the state register.
Debate about the possibility of VAT deduction before state registration of transfer of ownership, the taxpayers are with the tax inspectors for a long time. The practice is not in favor of the latter: the arbitration courts do not link the right to deduct VAT on real estate the fact of state registration (see for example, decision FAS East-Siberian district dated November 1, 2007 № A33-949/07-F02-8338/07, Volga district from November 25, 2008 № A55-5312/08, Moscow district on December 8, 2009 № KA-A40/12996-09, Western-Siberian district from 15 June 2009 № F04-3453/2009(8568-A27-42, definition YOU of 20 October 2009 No. YOU 13052/09). But the Federal Arbitration Court of North Caucasus district was further explained that the Tax code specifies only the need to put the property on the account, to be eligible for the deduction, and it does not matter what accounting records reflected the property (decision of 21 August 2009, № A32-29807/2006-59/524).