Arbitration practice. August, 2011 THE VAT
1. The society has legally applied the rate of the VAT of 18 % concerning the services rendered to it as the counterparts of the society who has rendered services in transportation of oil and oil products on territory of the Russian Federation, couldn't confirm documentary the right of application of the rate of the VAT of 0 %, as in the documents confirming export of the goods for limits of territory of Russia, the given counterparts aren't named. (The resolution Federal arbitration court of the Moscow District from July, 7th, 2011 ¹ ÊÀ-À40/6886-11)
2. An inspection argument that the society has wrongfully declared a deduction of the VAT after three-year term, is wrongful as the given sums of the VAT have been declared to a deduction after the society has learned about availability of the invoice, and its registration in the book of purchasing. (The resolution Federal arbitration court of the Moscow District from August, 1st, 2011 ¹ ÊÀ-À40/7758-11)
3. The taxpayer has the right to a deduction of the sums of the VAT paid under invoices which were exposed by the counterpart applying the simplified tax system. (The resolution Federal arbitration court of the Moscow District from August, 1st, 2011 ¹ ÊÀ-À41/7903-11)
4. As conditions for tax deduction application under the VAT have arisen at a society during the period when it was on the simplified system of the taxation and wasn't the payer of the VAT, application of deductions after transition to a general regime of the taxation and a presentation of the given tax to compensation are wrongful. (The resolution Federal arbitration court of Volga region district from July, 5th, 2011 ¹ À06-6766/2010)
5. Confirming to the right to the tax deduction of the VAT the taxpayer has presented the invoices exposed on behalf of the legal entity which agrees to the data the Uniform state register of juridical persons to inspection has ceased the activity in connection with reorganization. Such documents contain the information about not existing at the moment of fulfillment of economic operations the person and can't confirm the right to a deduction. (The resolution Federal arbitration court of the Moscow district from August, 4th, 2011 ¹ ÊÀ-À41/8158-11)
The profits tax
1. Inclusion of an economic society in the Uniform state register of juridical persons publicly confirms a reality of existence and legal capacity of such participant of civil turnover, including its executive office. Hence, for any third parties the data contained in the state register concerning the counterpart of the taxpayer were authentic, including regarding a question on powers of public officials of the specified organization. The subsequent negation by the person specified in the Uniform state register of juridical persons as the head and (or) the founder of the legal entity, participation in activity of this legal entity can't serve as the unique proof of conscientiousness of a society. Thus, expenses are legally considered at profits tax calculation. (The resolution Federal arbitration court of the Central district from June, 14th, 2011 ¹ À54-4400/2010-Ñ13)
2. The tax legislation doesn't contain restriction on inclusion in a reserve railroad train on doubtful debts of indebtedness before the organizations before which simultaneously there is also an accounts payable. Positions the Civil Code of the Russian Federation don't oblige the organization to perform offset of counter obligations at availability at it simultaneously debit and accounts payable concerning the same person. Offset of the debt receivable included in a reserve, and accounts payable is inexpedient from the economic point of view as the considerable part of accounts payable is constituted by the given out advances. (The resolution Federal arbitration court of Volga region district from July, 19th, 2011 ¹ À65-22211/2010)
3. The tax code of the Russian Federation doesn't give to the taxpayer of the right to any choice of the tax period in whom the railroad train of extra-realization expenses at profits tax calculation joins hopeless indebtedness to collecting. (The resolution Federal arbitration court of the Moscow district from August, 2nd, 2011 ¹ ÊÀ-À40/6888-11)
4. Court costs compensated by losing party as the costs connected with restoration of the broken right, concern on a basis point 3 clause 250 the Tax code of the Russian Federation the extraordinary incomes considered at the taxation of profit; date of reception of such incomes date of the introduction into executive force of a judgment (subparagraph 4 point 4 clause 271 the Tax code of the Russian Federation) admits. (The Resolution Federal arbitration court of the Western-Siberian district from August, 23rd, 2011 ¹ À81-5018/2010)
Other taxes
1. As the ground area purchase and sale contract is nullified by court owing to negligibility, with accounting clause 167 the Civil Code of the Russian Federation according to which the void transaction doesn't involve legal consequences and is void from the moment of its fulfillment, the sum of the land tax paid by a society from the moment of the state registration of transition of an ownership right under the purchase and sale contract of the ground area till the moment of the introduction into executive force of a judgment about acknowledgement of the transaction void, in connection with absence at a society of legal grounds for payment of the land tax is soundly recognized unduly paid. (The resolution Federal arbitration court of the Moscow district from August, 4th, 2011 ¹ ÊÀ-À41/7449-11-Ï)
2. The money funds paid to workers as payment «night in transit», actually are compensation the employer of costs of the workers forced in business trip to be at night in vehicles of a society. Hence, inspection didn't have bases for additional charge the Tax to incomes of physical persons and the Uniform social tax. (The resolution Federal arbitration court Volgo-Vjatsky of district from August, 5th, 2011 ¹ À31-4556/2010)
3. Refusing satisfaction of the declared requirements, courts, being guided by subparagraph 14 point 3 clause 346.12 the Tax code of the Russian Federation, changes in constituent documents about reduction of a share of participation of Joint-Stock Company "And" recognized that haven't been registered by a society in the order established by the law at the moment of giving in inspection of the statement for application of the simplified system of the taxation in this connection to the applicant it has been legally refused application of this tax mode. (The resolution Federal arbitration court of the Moscow district from July, 28th, 2011 ¹ ÊÀ-À40/7263-11)
Arbitration practice. July, 2011 THE VAT
1. The taxpayer has the right to declare the tax deduction under the VAT in later tax period in comparison with in what it had a granted right, under condition of observance of positions by it clause 169, 171, 172 Tax code of the Russian Federation. (The resolution Federal arbitration court of the East-Siberian district from June, 8th, 2011 ¹ À19-27017/09)
2. The conclusion about the unreliability of invoices, signed by persons not as identified in the founding documents of suppliers as the heads of these companies cannot own, in the absence of other facts and circumstances that allow a taxpayer to question the integrity, Considered as a basis for the recognition of tax benefits unsubstantiated. In the absence of evidence of actual fail to perform business transactions in connection with which the claimed right to a tax deduction, the conclusion that the taxpayer knew or should have known of the unreliability (inconsistency) of information can be made by the court as a result of evaluation in the set of circumstances Concerning the conclusion and execution of the contract (including the grounds on which the taxpayer has been selected the appropriate contractor). (Decision of the Federal Arbitration Court of the Northwest District from June 21, 2011 ¹ A05-11486/2010)
3. In adopting the contested decision was based on the inspection that the application of the tax deduction contradicts article 171 of the Tax Code, as the cost of repair work offset by the public insurance organization, including VAT. The Inspectorate believes that the Company has not suffered the real cost of paying taxes to the budget. This argument is rejected because it is based on an incorrect interpretation of Article 171, 172, Tax Code. In accordance with the rules of VAT amounts presented in respect of repairs to aircraft that are deductible on the basis of the invoices, regardless of the fact that the cost of repair work is compensated by an insurance company. (Decision of the Federal Arbitration Court of Moscow District on July 8, 2011 ¹ KA-A40/6869-11)
4. The society has shown to the VAT compensation, paid by other persons (the builder and the customer) at acquisition of the goods (works, services) at the third parties, on the basis of the invoices exposed on their name and their statement on accounting. Any bases of accepting and a merchandise payment (works, services) in the sum equal to earlier brought investment installment the agreement aren't provided by a society, is equal as doesn't stipulate also compensation of these costs connected with building of object, or any services. Thus, conditions for application of deductions under the VAT at a society are absent. That circumstance that the VAT is shown by a society to a deduction on the basis of the summary invoice exposed to it, in itself can't serve as a sufficient condition for compensation to it of the VAT sums on the goods (to works, services), acquired by other accounting entities. (The resolution Federal arbitration court of Northwest district from June, 22nd, 2011 ¹ À56-87991/2009)
5. The society (tenant) in infringement clause 171 and point 1 clause 172 the Tax code of the Russian Federation has unreasonably declared point 2 to a deduction of the VAT on the basis of invoices on the operations which have been not connected with acquisition at state enterprise of the goods (works, services), and has compensated its costs as the lessor in an order provided by the agreement on compensation of working expenses on the maintenance of property, leased under the agreement. Compensation by a society of working expenses to state enterprise in the form of depreciation charges on a complete recovery of object of real estate; deductions on capital repair of object of real estate; deductions on compensation of overhead costs of the lessor; expenses on obligatory insurance isn't object of taxation of the VAT. The indemnity amount of expenses on tax payment isn't object of taxation of the VAT. As the indemnity amount of these expenses doesn't form object of taxation of the VAT also rules of compensation of this tax to it can't be applied. (The resolution Federal arbitration court of Northwest district from June, 27th, 2011 ¹ À56-68121/2010)
The profits tax
1. Inspection has considered economically unreasonable inclusion in a railroad train of expenses of costs for payment of the national duty for issue of permissions to attraction and use of foreign labor power as foreign workers haven't been involved for accomplishment of civil work. According to Determination ÊÑ the Russian Federation from June, 4th, 2007 ¹ 366-O-P validity of expenses can't be estimated from the point of view of their expediency. Expenses are actually suffered and concern a miscellaneous cost according to under point 1 point 1 clause 264 of the Russian Federation. That circumstance that foreign citizens haven't given the consent to their attraction to work on objects of a society, the Tax code of the Russian Federation doesn't interfere with accounting of expenses and deductions according to clause 252. (The resolution Federal arbitration court of the Moscow district from July, 5th, 2011 ¹ ÊÀ-À40/6294-11-2)
2. Inspection refers to the fact that the traffic logs do not contain information to determine the amount of spent fuel and lubricants. Meanwhile, the courts found that the addition of traffic logs to prove the validity of public expenditures with invoices submitted to the transfer of petroleum products shipped to the gas station, staff expense reports, cash registers checks gas stations, act to charge diesel. Courts found that the taxpayer, except for vehicles, there was a cleaning and loading machine - tractor, which is employed to clean the territory of the enterprise with diesel fuel. (Decision of the Federal Arbitration Court of Moscow District on July 7, 2011 ¹ KA-A41/6518-11)
3. Recognition of the transaction to be invalid because of violations of civil law does not affect the taxation because it does not mean challenging the very fact of spending, as well as their production facilities. (Decision of the Federal Arbitration Court of the West Siberian region from July 13, 2011 ¹ A45-14585/2010)
4. A society, having own ground areas and the adjusted storage facilities, leased from Open Company A property at the price of a lease payment which is considerable above a lease payment received by a society from rent of own property. By the analysis of movement of funds under the settlement account of Open Company A it is established that the society listed money funds only in the sums, necessary Open Companies A for payment of the rent payments shown by Department of property relations under rent bills of the ground area. The given circumstances have in aggregate allowed court to draw a conclusion on absence of economic correctness of lease contracts from Open Company A. (The Resolution Federal arbitration court of the Western-Siberian district from June, 28th, 2011 ¹ À70-6665/2010)
Other taxes
1. Courts have correctly applied clause 213 the Tax code of the Russian Federation with accounting point 7 clause 3 the Tax code of the Russian Federation and have come to a conclusion that at calculation and deduction the Tax to incomes of physical persons from the workers the bank soundly didn't consider the sum of insurance installments under contracts of voluntary insurance by which compensation of medical expenses of the insured physical persons irrespective of, whether the insured physical persons workers of the insured or members of their families are is provided. (The resolution Federal arbitration court of Northwest district from June, 8th, 2011 ¹ À56-55221/2010)
2. Premises, an ownership right on which it is arranged by a society in 2008, intended for sale. Disputable premises weren't used by the taxpayer for administrative needs, not least, hence, the given property wasn't subject to statement on accounting as object of fixed assets in 2008 Thus, the given property in 2008 didn't conform to the requirements specified in point 4 Position under the business accounting 6/01 in this connection wasn't object of taxation on the property tax in the disputable period. (The resolution Federal arbitration court of the Western-Siberian district from June, 28th, 2011 ¹ À70-6665/2010)
3. An inspection conclusion that the society unreasonably hasn't included in a railroad train of leviable base on the Uniform Social tax of the sum of the awards paid to workers in honor of a professional holiday is lawful as such payments are charges of stimulating character, were paid according to position about awarding of workers as single encouragements for production results, job management and production improvement and other similar indicators and were subject to reference on expenses at profits tax calculation, are directly connected with results of productive activity of a society, accomplishment by workers of labor obligations and answered criteria of economic validity and documentary confirmation of expenses. (The resolution Federal arbitration court of the Western-Siberian district from July, 14th, 2011 ¹ À75-9359/2010)
Arbitration practice. May, 2011 THE VAT
1. Foreign citizens, attracted by the contract to provide personnel and staff time taken in society as workers, performed as part of employment contracts and for technical support, consulting and organizational support for contract staff the various functions. Services to provide personnel, acquired company, which paid VAT to the budget, and declared as a tax deduction for acquired operations, which are subject to tax. Used public system to attract foreign staff in total tax payments cannot be any tax benefit, as related to the payment of VAT for foreign company providing personnel. (The Federal Arbitration Court of Moscow District on March 29, 2011 ¹ KA-A40/1994-11)
2. As the provider of the applicant, which had a services exempt from VAT, the applicant put the invoice, which shows the amount of VAT, the supplier in accordance with paragraph 5 of Article 173 of the Tax Code shall pay the amounts received in the tax budget. Therefore, society has paid the invoice, and the provisions of article 169, 171, 172, Tax Code, these amounts are reflected in the tax return as tax deductions. The output of ships that brought by the service provider's invoice the amount of VAT deductible in accordance with Art. 171, 172 Tax Code, is justified. (The Federal Arbitration Court of Moscow District on March 31, 2011 ¹ KA-A40/2000-11)
3. The fact that the inspection was made an illegal decision to refuse the reimbursement of VAT within the statutory period, no changes may be the reason the maturity of the tax, as well as grounds for refusing to apply the provisions of paragraph 10 of Article 176 Tax Code (interest charge). (The Federal Arbitration Court of Moscow District on April 29, 2011 ¹ KA-A40/3326-11)
4. Due to the fact that the company refined the VAT tax return for December 2007 is presented to the inspection July 29, 2009 g., The courts have come to the conclusion about skipping public life under paragraph 2 of Article 173 of the Tax Code, and the loss of the right to use the tax deduction for the VAT on goods (works, services) purchased in 2002 - 2003. Relating to the objects fixed assets put into operation in December 2003. (The Federal Arbitration Court of Moscow District on February 18, 2011 ¹ KA-A40/369-11)
5. The existence of the taxpayer's documents, which in his opinion, the right to use the tax deduction, without reflection (instructions, statements) of the sum of the tax deduction in the tax return is not grounds to reduce the tax payable in the budget for the fiscal period end VAT. Availability of documents that lead to the use of tax deductions for VAT, the declaration does not replace them. Since the taxpayer did not use the right application of tax deductions in accordance with the law by submitting a revised tax return before the contested decision, the correct conclusion is that there is no legal basis to recognize the illegal community crediting additional amount of VAT, penalties, Bringing the tax liability of a fine. (Decision of the Federal Arbitration Court of the Central District from April 11, 2011 ¹ A23-1013/10A-14-51)
The profits tax
1. Depreciation on depreciable property lawfully used by the taxpayer to derive income as part of their production activities. Income of the applicant, as the subsoil is formed as a result of the development and implementation of the subsoil obtained them of minerals (oil) and oil, as a result of which the Company derives income is not a product of the particular well And the result of processing the gas-water emulsion wells in different locations of preparation. All wells, both active and inactive (injection), site-specific subsurface directly linked a single process, endowed with specific functions and are involved in the production process for the extraction of oil. (The Federal Arbitration Court of Moscow District on March 25, 2011 ¹ KA-A40/18198-10-2)
2. Under the terms of loan agreements and supplementary agreements thereto, made public, interest on borrowed funds are paid simultaneously with payment of the principal amount of the loan. Thus, prior to that date the society does not arise obligations to the lender for repayment of interest and, as a consequence, there are no expenses deductibles for income tax. (Decision of the Federal Arbitration Court of the Volga region from April 5, 2011 ¹ A55-16909/2010)
Other taxes
1. Payment society held by the employer of the employee training to better perform his job duties, regardless of the form of such training does not form a personal income of the employee, and accordingly is exempt from tax on personal income. (The Federal Arbitration Court of Moscow District on May 19, 2011 ¹ KA-A40/4521-11)
Arbitration practice. April 2011 VAT
1. At the time of paying tax at a rate of 18% of society does not know and could not know about the excessive payment of VAT, because until February 19, 2008 - the date of the Presidium of the RF Decree ¹ 12371/07 believed that the operations on the implementation of customs clearance services exports Electricity is applicable VAT rate 18%. Consequently, the fact of excessive tax the taxpayer could only find 19 February 2008, so a three-year period to apply for VAT refunds are not missed. (Decision of the Federal Arbitration Court of Moscow District on December 10, 2010 ¹ KA-A40/15020-10)
2. VAT amounts presented by contractors during capital construction, to be deducted from the customer if the invoices, you accept the registration capital works (a reflection of their account 08 Accounting), and not the whole object as the primary means. Inspection argument that, when signing documents on form number CS-2 to the company was not transferred ownership of the results of completed works and contractors, respectively, did not have the right to take them to account, is illegal. (Decision of the Federal Arbitration Court of the North-West region of 21 December 2010 ¹ A56-13852/2010)
3. Society should not recover the VAT from shortage, damage items, as the legislation on taxes and fees contains no provisions requiring the taxpayer to recover the VAT on goods, unused to the activities subject to VAT because of the impossibility of such use, damage, loss. (Decision of the Federal Arbitration Court of Moscow District on March 10, 2011 ¹ KA-A40/996-11)
4. Legislation on taxes and fees does not contain provisions that prevent the taxpayer to exercise the right to tax deduction in a later fiscal period compared to the period in which it has emerged that right. Under the provisions of paragraph 2 of Article 173 of the Tax Code specified the right to use taxpayer may, within three years after the relevant tax period. (Decision of the Federal Arbitration Court of Moscow District on April 12, 2011 ¹ KA-A40/2621-11)
5. In accordance with the new Tax Code and in accordance with the transitional provisions laid down by the Federal Law of July 22, 2005 ¹ 119-Federal law, in the presence of paid invoices and proof of registration facility completed construction of the taxpayer's right of a tax deduction. Taxpayer's right to tax deductions and VAT refunds in the case of documentary evidence of their validity can be implemented within three years from the date of expiry of the relevant tax period. Due to the fact that the company refined the VAT tax return for July 2007, presented to the inspection July 27, 2009, the courts have come to the conclusion about skipping public life under paragraph 2 of Article 173 of the Tax Code, and the loss of the right to use the tax deduction for the VAT on goods (works, services) purchased in 2001-2003. Relating to fixed assets put into operation in December 2002 and December 2003 (Decision of the Federal Arbitration Court of Moscow District on March 25, 2011 ¹ KA-A40/1654-11)
The profits tax
1. The initial and residual value of fixed assets controversial at the time of testing confirmed by tax records and source documents for acceptance and integration of plant and equipment that contain deadlines for putting projects into operation, so do not take into account the argument of the inspection that the taxpayer failed to prove the validity of the expenses incurred due to not keeping the relevant documents for more than five years. (Decision of the Federal Arbitration Court of Moscow District on March 29, 2011 ¹ KA-A40/17269-10)
2. Inspection argument that the company understated the tax base for income tax due to lack of travel documents, confirming production nature of travel, is unfounded, since the company has orders confirming the nature of production and duration of the trip. (Decision of the Federal Arbitration Court of Moscow District on April 11, 2011 ¹ KA-A40/1664-11-2)
3. The fact of discrepancies between tax returns and accounting registers (turnover balance sheets), may indicate only a violation of the rules of taxpayer income and expenses and taxable That in itself can not constitute grounds for rejection of the tax authority of the tax base for income tax in the amount specified by the taxpayer. (Decision of the Federal Arbitration Court of Moscow District on April 11, 2011 ¹ KA-A40/1664-11-2)
4. According to the inspection company improperly classified as an expense that reduces income when calculating tax on profits, costs, paid under the contract for their work on cable management telephony and LAN, since these costs should be attributed to the increase in value of fixed assets in accordance with Article 257 Tax Code. Inspection argument is incorrect; as a result of work performed do not set up a new property, cabling and telephone local area network by them cannot function. (Decision of the Federal Arbitration Court of Moscow District on April 11, 2011 ¹ KA-A40/1664-11-2)
5. According to the cop. 7 paragraph 2 of article 265 of the Tax Code losses on the transaction assignment of claims may be included by the taxpayer in the non-operating expenses only in the manner prescribed by Article 279 of the Tax Code That is, if the rights claims of a penalty for breach of contractual obligations with a negative economic effect of loss on such sale shall not be taken into account for tax. Thus, society has addressed incorrectly in the non-operating expenses loss on sale of rights to demand penalties and interest for breach of contractual obligations in connection with the inspection than reasonably disputed amounts decreased to a loss. (Decision of the Federal Arbitration Court of Moscow District on 13 December 2010. ¹ KA-A40/15488-10)
Other taxes
1. By the time the decision to refuse to refund the excise tax authorities have had a full set of documents provided by paragraph 7 of Article 198 Tax Code in support of the claimed amount of excise duty, which follows from the text of the contested decision and a reasoned conclusion. The decision to refuse reimbursement of tax made after the expiration of three months from the date of submission of documents and not from the date the tax return for June 2009. Therefore, if no claim to completeness and authenticity of documents submitted in support of the society the right to compensation, the tax authority no grounds for refusing to refund the excise tax in the disputed amount, no matter what the amount was reflected in the declaration of June 2009. (Decision of the Federal Arbitration Court of Moscow District on March 25, 2011 ¹ KA-A41/1707-11)
2. Courts have applied to the disputed payments to paragraph 23 of article 270 Tax Code of the Russian Federation, according to which the determination of the tax base does not include the cost in the form of sums of financial assistance to employees (including the initial payment for the purchase and (or) the construction of housing on a full or partial repayment of the loan granted for the purchase and (or) the construction of housing, interest-free or concessional loans to improve housing conditions, household furnishing, and other social needs). These payments are not included in the pay system, there is no evidence that the cost to society for the payment of financial assistance to workers to leave the signs are incentive-based charges associated with the production results, professional excellence, high achievement in their work or evidence of charges or stimulating compensatory nature of the regime of work and working conditions. (Decision of the Federal Arbitration Court of Moscow District on March 31, 2011 ¹ KA-A40/17948-10)
Arbitration practice. March 2011 VAT
1. Facsimile signature is not a copy of the signature of an individual, but a way to perform an original personal signature, so stamped on invoices, facsimile signature does not indicate a violation of Art 169 of the Tax Code.
(Decision of the Federal Arbitration Court of the West-Siberian region on February 8, 2011 ¹ A56-12834/2010)2. For an investor and a co-investor certificate of acceptance of work performed, arranged in the form of COP-14 is not necessary for the application of deduction of VAT in primary records, since this act of confirming the execution of work, is a document of the customer (the developer) and the contractor.
(Ruling of the Federal Ministry of Defense on February 22, 2011 ¹ KA-A40/347-11)3. Because the counterparties society does not consist in the tax records with the specified tax identification number and the database state registration of legal persons information about them is not submitted invoices and other primary documents cannot confirm the VAT deduction.
(Decision of the Federal Arbitration Court of the West-Siberian region on February 10, 2011 ¹ 05-4194/2010)4. The time the right to use the tax deduction for VAT on capital construction object is not associated with the filing of documents for state registration of rights to object and documentary evidence of this fact, and since the introduction of the facility.
(Ruling of the Federal Ministry of Defense on February 16, 2011 ¹ KA-A40/191-11)
Tax on profits
1. Since the write-off products directly to the acquiring company to further its implementation in the course of doing business and trade losses correspond to characteristics of economically viable costs associated with production and sales Such products and the loss of legitimately classified by society to other costs associated with production and sales in accordance with the subsequence 49 n. 1, Art. 264 of
(Decision of the Federal Arbitration Court of the Eastern Siberian region on February 16, 2011 ¹ A33-4902/2010)2. Inspectorate pointed to the definition of illegality Society of income from the sale of products with regard to retrospective discounts granted to customers. The argument of the inspection shall be unlawful, because the final price of the units set for a particular month the product is determined on the basis of the corresponding month of the discount, the amount of discount not reasonably accounted for as income for tax purposes, which corresponds to operating in the corresponding period of accounting policies. In addition according to Art 41 and 247 of the Tax Code, subject to taxation on profits can only be effectively derived income which, in this situation is not in effect reducing the price of the goods under the contract.
(Ruling of the Federal Ministry of Defense on March 18, 2011 ¹ KA-A41/1452-11)3. Inspection, comparing the data of tax returns for VAT and income tax, set forth in the declaration of income tax revenue is reflected in a lesser amount than shown in the tax base of VAT returns. On this basis, the Inspectorate concluded that failure to pay tax on company profits. In accordance with the signature 2, paragraph 1 of Article. 248 Income Tax Code are based on primary documents and other documents which the taxpayer received income tax records and documents. Since the inspection of such documents has not been investigated, data on income, as reflected in the tax return for income tax, on their own without the original documents cannot serve as a basis for concluding that underreporting of the tax base.
(Ruling of the Federal Ministry of Defense on March 24, 2011 ¹ KA-A40/2096-11)
Other taxes
1. Employment contracts concluded by society with citizens of Kazakhstan and Ukraine on the territory of these states according to their labor laws. Since wages were paid to citizens of Kazakhstan and Ukraine, living in the territories of these states, but working in public offices, located on the territory of these states, the labor contracts concluded in accordance with the laws of Kazakhstan and Ukraine, These citizens are not subject to regulation as the Customs Code and Tax Code. With pay and other benefits accrued in favor of the disputed employees, the company unified social tax in accordance with the laws of Kazakhstan and Ukraine. In such circumstances, the payment accrued in favor of working in the offices of the society in Kazakhstan and Ukraine individuals - citizens of those States, not reasonably included in the company tax base on unified social tax in accordance with the laws of the Russian Federation.
(Decision of the Federal Arbitration Court of the West-Siberian region on March 2, 2011 ¹ A56-10392/2010)2. From the contents of paragraph 19 of Article. 217 of the Tax Code that the income received by taxpayers (shareholders of joint stock companies or members of other organizations) from the joint-stock companies and other organizations in the two cases are not subject to tax - the revaluation of fixed assets (funds) and the reorganization of joint-stock company that is caused by a variety of legally relevant circumstances in which the specified categories of taxpayers, and economic features of taxable income. Thus, the Tax Code are fixed at the same time unified and differentiated approaches to the definition of income taken into account when forming the subject of taxation and the tax base for personal income. Such regulation is intended to provide the same amount of legal guarantees for each taxpayer and at the same time allows taking into account the legally significant objective differences between different categories of taxpayers, as well as specific types of income. Since the charter capital increase from retained earnings of previous years, as well as contributions for the society, exemption from taxation resulting from these operations, there is no income, and income as the difference between the original and the new par value of shares is taxable.
(Decision of the Federal Arbitration Court of the Eastern Siberian region on February 10, 2011 ¹ A78-928/2010)
Arbitration practice. February 2011 VAT
1. Tax Code and other legislative acts on taxes and duties do not include a ban on the display of single agent invoices for goods (works, services) purchased for the principal. The absence of exposed on the services rendered invoices units due to the inability to specify, cannot serve as grounds for denying a deduction for the VAT.
(Ruling of the Federal Ministry of Defense on December 8, 2010 ¹ KA-A41/15246-10)2. Replacement of defective invoice for a full or Chapter 21 of the Tax Code nor Section 29 of the Rules of registers and received invoices, purchase ledger and sales ledger is not prohibited. Thus, society rightfully filed VAT deduction on such invoices.
(Ruling of the Federal Ministry of Defense on December 27, 2010 ¹ KA-A40/16330-10)3. Tax legislation taxpayer's right to tax benefit is not associated with the actual introduction of the tax amounts in the budget providers, including third party in the chain of transmission of the goods Not established and the obligation of the taxpayer to confirm these facts for presentation to deduct the VAT.
(Ruling of the Federal SOA on January 26, 2011 ¹ A75-3133/2010)4. Link inspection of the circumstances, evidence of receipt by the company unjustified tax benefits (registration provider at mass registration, mass founder and leader, no provider at registration or otherwise), in the absence of evidence to disprove the reality of the services rendered, cannot serve as grounds for refusing the application of VAT deductions.
(Ruling of the Federal Ministry of Defense on January 27, 2011 ¹ KA-A40/17776-10)5. Argument inspection of abuse of the use of tax deductions for VAT in the absence of the charges against him invoices for information about the number of cargo customs declaration and the country of origin of goods is illegal, as a society, not being a person selling goodsIs not responsible for the absence of such information in the invoice.
(Ruling of the Federal Ministry of Defense on January 27, 2011 ¹ KA-A40/17776-10)6. Article 172 of the Tax Code, which defines the application of tax deductions, do not exclude the possibility of deducting the amount of VAT outside the tax period in which such a right has arisen, including tax agent.
(Decision of the Federal Arbitration Court of the West-Siberian region on February 21, 2011 ¹ A70-6128/2010)7. Society's argument that the limitation set by Section 2, Article. 173 of the Tax Code (the right to lodge a refundable VAT amounts within three years), only applies if the tax return stated amount of VAT recoverable in the order of Art. 176 of the Tax Code, is inappropriate, since such an approach to the application of paragraph 2 of Article. 173 of the Tax Code, based on the mechanism of calculating the final amount of the tax raises in unequal conditions of the taxpayers, who for the tax period for the difference to be reimbursed from the budget. Thus, the fixed term of three years applies to the sum of the residues.
(Ruling of the Federal Ministry of Defense on December 21, 2010 ¹ KA-A40/9745-10)
Tax on profits
1. The fact of termination of the contract for the purchase of shares cannot be grounds for the recognition of exchange differences arising during the period of payment under this contract, economically unsound and not to be included in the non-operating expenses deductible from taxable income.
(Ruling of the Federal Ministry of Defense on December 22, 2010 ¹ KA-A40/13975-10)2. Reconstructed (modernized) objects introduced society in operation and used the organization in income-generating activities (commissioning facilities for rent). Since the company incurred costs of reconstruction (modernization) of petrol stations, as recognized in the tax accounts through depreciation charges, economically justified and aimed at generating income, their exclusion from the tax authority expenditure on income tax is illegal. The argument that early amortization of the reconstructed (modernized) petrol stations must submit documents proving that the filing requirements for registration of objects in the unified state register of real estate rights and transactions, was soundly rejected by the courts.
(Ruling of the Federal Ministry of Defense on December 24, 2010 ¹ KA-A40/16460-10)3. Since the company was established as a legal entity March 23, 2005, it is subject to the provisions of paragraph 2.1 of Art. 252 of the Tax Code as amended by Federal Law ¹ 58-FZ of June 6, 2005. The cost of property, property rights, having monetary value is determined according to tax records and documents of the transferor at the date of transfer of ownership of these assets, property rights. In such circumstances, the tax authority legitimately considered that in the expenses of the society are to be included depreciation, calculated taking into account the value of the property, determined according to tax records and documents of the transferor at the date of transfer of ownership of said property And not on the basis of accounting described in dividing the balance, and additional taxes on profits.
(Ruling of the Federal Ministry of Defense on January 31, 2011 ¹ KA-A40/17003-10)
Other taxes
Inspectorate of additional taxes on the property because the lease agreement there is no agreement on the use of accelerated depreciation rate. Societies rely on property tax from the vehicles, leased, without the use of accelerated depreciation rate. However, the procedure for calculating the property tax based on property value, as defined in accounting. Because the coefficient 3 is not used in the accounting and tax accounting, the grounds for the accrual of property tax, fines and tax penalties on the tax is not available.
(Ruling of the Federal Ministry of Defense, dated 24 December 2010. ¹ KA-A40/16282-10)
If any payment made by the taxpayer for the profits of past years, remaining at his disposal after tax, these expenses is not entitled to take into account for tax purposes and, accordingly, included in the tax base for the unified social tax and contributions for mandatory pension insurance.
(Decision of the Federal Arbitration Court of the West-Siberian region on January 27, 2011 ¹ A75-7292/2010)
The Company improperly did not include a controversial subject in the tax base on property tax as of February 1, 2008 and on March 1, 2008 and cannot be numbered on the amount of property tax, because as of February 1, 2008. The facility met all the criteria of a fixed asset. The controversial subject on the basis of the order of 16 January 2008 was put into operation from January 16, 2008, and January 17, 2008 leased. Consequently, this facility was able to bring you the taxpayer income in the future and actually brought him to the controversial period in connection with the surrender of its lease.
(Decision of the Federal Arbitration Court of the West-Siberian region on January 26, 2011 ¹ A05-1778/2010)
Arbitration practice. January 2011 VAT
1. Signing invoices person who is not meaningful in the constituent documents of the supplier as a leader, not their own, in the absence of other facts and circumstances, considered as a basis for the recognition of tax benefits unsubstantiated.
(Decision of the Federal Arbitration Court for the Central District on December 15, 2010 ¹ A68-14612/09, ¹ A14-3224/2010/98/28)2. Russian Tax Code does not put taxpayer's right to deduct the VAT subject to the fulfillment of their obligations to counterparties if there is evidence of the execution requirements of the legislation by the taxpayer and the absence of his actions are evidence of bad faith.
(Decision of the Federal Arbitration Court of Moscow District on December 17, 2010 ¹ KA-A40/15801-10)3. Pros inspection of improper statement by society to deduct VAT on contract for consulting services, with reference to the fact that from the reports submitted cannot be established what kind of services and to what extent were provided, were unfounded, Since the reported acts of the Service confirm the reality of the claimed business transactions, as well as reporting documents submitted by each consultant with an indication of the consultations, the time spent and hourly rates. In addition, the legislation on taxes and duties of the Russian Federation does not contain any indication of the degree of detail drawn up by the taxpayer reports.
(Decision of the Federal Arbitration Court of Moscow District on December 22, 2010 ¹ KA-A40/16131-10)4. The procedure for bringing to deduct the VAT does not provide conditions under which the amount paid to the tax period the amount of VAT may be raised by a taxpayer to deduct only the next tax period.
(Decision of the Federal Arbitration Court of Moscow District on December 23, 2010 ¹ KA-A4/16515-10)5. Decision to refuse public inspection in the VAT refund is justified, since the transaction society to acquire the property had no reasonable economic objectives were to obtain unjustified tax benefit, the source for further compensation for the amount of VAT from the budget has not been created due to the fact that, at all stages of the movement of funds was no payment of VAT to the budget.
(Decision of the Federal Arbitration Court of Moscow District on December 30, 2010 ¹ KA-A40/16947-10)
Tax on profits
1. Argument inspection, that the society in violation of Article. 252, 255, 264 Tax Code RF improperly accounted for as expenses deductible for income tax, the cost of maintenance and operation of the premises recreation center (gym with exercise equipment, a billiard room with couch and bar, recreation room, showers, bathrooms, Swimming pool, steam room), is inappropriate because disputed premises used in the manufacture and sale as a place of recreation for workers and the costs of maintaining these facilities are taken into account when calculating income tax on the basis of a signature. 7 Section 1 Art. 264 Russian Tax Code.
(Decision of the Federal Arbitration Court of Moscow District on December 13, 2010 ¹ KA-A40/15021-10)2. For application according to point 1 of item 277 the Tax code of the Russian Federation of the tax concession received at cession of property in authorized capital, in a case when the shareholder is the taxpayer, there is no mandatory condition that the taxpayer was as well the emitter.
(The resolution Federal arbitration court of the Moscow district from December, 14th, 2010 ¹ ÊÀ-À40/14920-10-2)3. The society soundly applied special coefficient concerning the depreciable fixed assets used for work in the conditions of an excited environment and (or) raised working in shifts on the basis of item 259 the Tax code of the Russian Federation as the fact of the raised working in shifts at production in the shops, performed by the taxpayer, proves to be true job patterns on shops, job schedules, replaceable rapports, monthly sheets of workers. Besides, the tax legislation doesn't provide the accurate list of documents, obligatory to representation for confirmation of the raised working in shifts of works.
(The resolution Federal arbitration court of the Moscow district from January, 14th, 2011 ¹ ÊÀ-À40/17115-10)4. The expenses connected with acquisition by a society for the workers of sanatorium permits for treatment and rest, shouldn't be considered at calculation of tax base on the profits tax owing to direct instructions of the law. The direct prohibition on accounting of such expenses at calculation of tax base on the profits tax excludes their reference in expenses with a view of calculation of the same tax as the miscellaneous cost connected with production and realization under item 49 of item 264 the Tax code of the Russian Federation. Society arguments that sanatorium treatment concerns one of stages of preventive maintenance of occupational illnesses can't be a basis for inclusion in expenses of costs on payment of sanatorium permits. A society not a fact in evidence of availability at workers of occupational illnesses and acquisition of sanatorium permits with a view of treatment of occupational illnesses.
(The resolution Federal arbitration court of Northwest district from December, 28th, 2010 ¹ À27-8377/2010)
Other taxes
1. The rates of daily allowances specified by the Governmental order of the Russian Federation from February, 8th, 2002 ¹ 93, are used only for the purposes of calculation of tax base on the profits tax owing to what can't be applied to the purposes of calculation the Tax to incomes of physical persons.
(The resolution Federal arbitration court of the Moscow district from December, 30th, 2010 ¹ ÊÀ-À40/16638-10)2. As in chapter 26.2 the Tax code of the Russian Federation consequences of the admission by the taxpayer of five-day term on filing of application about transition on Simplified taxation system, and submission due date of the statement for transition on Simplified system of the taxation for again registered organizations aren't stipulated isn't ïðåñåêàòåëüíûì, the statement of a society for transition on Simplified the taxation system, submitted with infringement of the terms established by item 2 of item 346.13 the Tax code of the Russian Federation, it should be accepted inspection to data and is considered.
(The resolution Federal arbitration court of Northwest district from January, 17th, 2011 ¹ À66-6706/2010)
Arbitration practice. December 2010 VAT
1. References of tax department to absence of counterparts of the tax bearer to legal addresses, not granting by these counterparts of the tax reporting, absence at them sufficient administrative or technicians, the cores and vehicles are wrongful as the in itself given circumstances don't testify to conscientiousness of a society and can't be the basis for refusal in reception of tax benefit if it is not proved that the society knew or it should be known about presence of the specified circumstances.
(The decision Federal arbitration court Western – the Siberian district from October, 26th, 2010 ¹ À27-1206/2010)2. The tax Code of the Russian Federation doesn't connect the right to deduction application under the VAT with building license reception as it is provided item 51, 52 Town-planning codes of the Russian Federation. Besides, owing to item 1 the Tax Code of the Russian Federation the given standard legal certificate doesn't concern certificates of the legislation on taxes and tax collections.
(The decision of Federal arbitration court of the Moscow district from October, 28th, 2010 ¹ ÊÀ-À40/12997-10)3. Fulfillment by interdependent persons of any transactions doesn't involve an automatic recognition of the benefit received by these persons unreasonable. It can be recognized that if interdependence has led to not market pricing with a view of unreasonable compensation of the VAT.
(The decision of Federal arbitration court of the Moscow district from October, 28th, 2010 ¹ ÊÀ-À40/12997-10)4. For lack of proofs not absolutely economic operations in connection with which the alleged right on a tax deduction under the VAT circumstance that the corresponding documents confirming execution of these operations, on behalf of counterparts of a society are issued signed by the persons denying this signing, in itself can't serve as the unconditional and sufficient proof for refusal in a deduction of the corresponding sums of the VAT.
(The decision Federal arbitration court Western – the Siberian district from November, 2nd, 2010 ¹ À56-53764/2009)5. Article 169 the Tax Code of the Russian Federation, and also other articles of chapter 21 the Tax Code of the Russian Federation don't contain an interdiction for modification of incorrectly issued invoices or replacement of such invoice by the document issued according to effective standards and containing all necessary requisites and the data.
(The decision Federal arbitration court of Volga region district from November, 17th, 2010 ¹ À55-2699/2010)6. The consequence of ignorance of the separate account is provided in item 170 item 4 the Tax Code of the Russian Federation and consists in nonacceptance of the sums of the VAT to a deduction (in expenses). Item 149 point 4 the Tax Code of the Russian Federation doesn't provide a consequence of ignorance of the separate account in the form of additional charge of the VAT for the operations which are not subject to the taxation.
(The decision Federal arbitration court of Northwest district from November, 23rd, 2010 ¹ À56-4366/2010)7. The tax laws don't establish admissible ways of signing of invoices. An interdiction for fulfillment of signatures of the head and the chief accountant by stamp-facsimile putting down it is not established, and accordingly item 169 requirements the Tax Code of the Russian Federation aren't broken.
(The decision Federal arbitration court of the North Caucasian district from December, 10th, 2010 ¹ À53-3061/2010)8. As at the moment of giving by a society of the specified tax declaration under the VAT three-year term during which the tax bearer had the right to tax deductions, has expired, the tax department has legally refused to a society VAT compensation.
(The decision Federal arbitration court Volgo-Vjatsky of district from November, 24th, 2010 ¹ À43-5041/2010)
Tax on profits
1. With a view of application of item 7 of item 259 degree primary (on technical parameters) adaptedness of the basic means to influence of the aggressive technological environment of value has no Tax Code of the Russian Federation.
(The decision Federal arbitration court of the Moscow district from September, 24th, 2010 ¹ ÊÀ-À40/11081-10)2. Surcharges for the harmful working conditions provided by local statutory acts of a society, are legally included in expenses on the basis of item 255 item 3 the Tax Code of the Russian Federation. Realization of such payments doesn't depend on carrying out of certification of workplaces. Absence of certification doesn't release the employer from a duty to give surcharges and indemnifications to the employee occupied on a laborious work, works with harmful (dangerous) working conditions.
(The decision Federal arbitration court of the Ural district from October, 7th, 2010 ¹ Ô09-8271/10-Ñ3)3. Representation as proof of actual relations on transport expedition and delivery of the goods of corresponding documents, in particular forwarding documents and consignment notes, even in the absence of commodity-transport waybills testifies to well-founded inclusion in structure of expenses of the corresponding expenses suffered by the tax bearer.
(The decision Federal arbitration court of the Moscow district from October, 14th, 2010 ¹ ÊÀ-À40/11847-10)4. The tax Code of the Russian Federation doesn't contain positions according to which application of factor «2» on the basic means used in the conditions of raised working in shifts and (or) the aggressive technological environment, is possible only under condition of fastening of the given factor in the registration policy. Concerning amortization charge in the Tax Code of the Russian Federation the requirement about obligatory fastening in the registration policy of the data about a method of charge of amortization which can be linear or nonlinear contains only.
(Decisions Federal arbitration court of the Moscow district from October, 25th, 2010 ¹ ÊÀ-À40/12648-10, from October, 27th, 2010 ¹ ÊÀ-À40/12461-10, from October, 25th, 2010 ¹ ÊÀ-À40/12458-10)5. The fact of inadequate drawing up by counterparts of primary documents can't be the basis for refusal to the tax bearer in inclusion in structure of expenses of expenses on acquisition at suppliers of the goods (works, services) which use in industrial activity is confirmed by the tax bearer documentary. At the decision of a question on possibility of the account of those or other expenses with a view of the profit taxation it is necessary to start with, whether confirm the documents which are available for the tax bearer, the expenses made by it. That is a condition for inclusion of expenses in expenses is possibility on the basis of available documents to draw an unequivocal conclusion that expenses are actually made. In attention the evidence produced by the tax bearer confirming to the fact and the size of these expenses which are subject to a legal estimation in aggregate should be accepted.
(The decision Federal arbitration court of Northwest district from December, 9th, 2010 ¹ À66-2231/2010)6. Formation of structure of expenses at profit tax calculation is directed on reduction of the tax obligation of the tax bearer, the duty of the proof of presence of the listed conditions is assigned to the tax bearer.
(The decision Federal arbitration court of Northwest district from September, 20th, 2010 ¹ À05-9171/2009)7. The tax Code of the Russian Federation doesn't give to the tax bearer of the right to any choice of the tax period in whom the structure out of realization of expenses joins hopeless debts on collecting.
(The decision Federal arbitration court of the Moscow district from November, 23rd, 2010 ¹ ÊÀ-À40/14217-10-Ï)
Other taxes
1. According to item 374 item 1 the Tax Code of the Russian Federation a taxable object on property admits not property any used and bringing benefit, but only what is considered on balance as object of the basic means in an order established for conducting of accounting; absence of the state registration of object of real estate excludes a recognition of this object as a part of the basic means of the organization. The establishment of the fact of the beginning of use of property and possibility receive benefit from its use can't to be recognized by the sufficient bases for duty occurrence on payment of the tax to property.
(The decision Federal arbitration court of the Moscow district from November, 24th, 2010 ¹ ÊÀ-À40/14221-10)2. A duty to pay the ground tax arises at the person from the moment of registration behind it of the rights to the ground area, i.e. entering of record into the register, and stops from the date of entering into the record register about the right of other person to the corresponding ground area. Thus, by the general rule the payer of the ground tax the subject of the real or limited real right registered in the Uniform state register of the rights to real estate and transactions with it admits.
(The Decision Federal arbitration court of Northwest district from November, 1st, 2010 ¹ À56-92907/2009)News Archive...
