Legal ways to avoid paying VAT on imported goods

Importing products or receiving services from foreign contractors are mandatory transactions subject to VAT. The status of the Russian taxpayer is not important in this case - these are legal entities operating under the OSN, economic entities exempt from VAT, and “simplified” enterprises applying special tax regimes.

Goods/services received from abroad are subject to VAT if the following conditions are met:

they will be resold exclusively within Russian territory;
the foreign counterparty-supplier is not a tax resident and is not registered with the regulatory authorities of the Russian Federation.

VAT is not charged only on certain characteristic groups of commercial products:

products received under a foreign trade agreement as gratuitous assistance;
special-tech equipment not created by domestic companies;
printed publications and cultural rarities for museums, libraries, archives;
specific modifications of drugs.

VAT rates for the import of goods and services

For taxation of goods or services imported from abroad, standard tax rates are applied - 0%, 10%, 18%. To correctly use the required percentage during customs clearance and VAT calculations, follow the proposed algorithm:

identify the product code according to the Unified Customs Tariff of the Customs Union ;
compare the code with the lists of goods taken into account at a 10% rate ;
in the absence of the required code in the specified lists approved by the Government of the Russian Federation, a rate of 18% .

The specificity of the calculation and payment of “import” VAT is the fact that the required calculations must be made before the item of trade leaves the customs post. Payment of VAT is made directly to the customs authority, as part of the mandatory payments for clearance.

The importer independently determines the tax base, product code and the amount of VAT required to be paid. If a problematic situation arises when customs applies a higher tax rate than the one calculated by the declarant, the importer can appeal to a higher customs authority.

The importer is given 15 days from the date the cargo crossed the Russian border to pay VAT when drawing up a customs declaration. Each day of delay in remitting tax will “cost” the buyer 1/300 of the key rate, multiplied by the full value of the cargo according to the declaration.

General information on VAT refund

There are several reasons for charging VAT:

Due to this tax, there is a constant replenishment of the budget of the Russian Federation;
it allows you to avoid multiple taxation during the production and subsequent sale of goods;
makes it possible to replenish the treasury even if in the chain of resale of goods one of the participants in the process has not paid the tax.

Organizations can count on reimbursement of this tax from the budget, but only if a number of conditions are met:

the company pays VAT on an ongoing basis;
the purchased goods or services are not used for the needs of the organization, but are intended solely for making a profit;
the transaction is reflected in the accounting documents (properly executed, signed invoices are required);
the product or service is accepted for accounting by the organization, transactions are reflected in the purchase book;
the parties to the transaction actually exist.

Without the will of a legal entity, the tax office does not have the right to independently refund overpaid VAT. The procedure for VAT refund on imports is of an exclusively declarative nature.

Any organization planning to trade with foreign companies must know what tax burden it will have to bear.

According to the established rules, the obligation to pay tax is assigned to a legal entity, regardless of the taxation system it applies (be it UTII or simplified tax system, for example). Read about paying VAT under the simplified tax system in this article.

The amount of tax depends on the type of imported product and can range from 10 to 18 percent (export transactions are taxed at a zero rate).

Special rules for paying tax and submitting the necessary reports are established for the import of goods from the countries of the Customs Union (EAEU).

VAT on imports from EAEU countries

In case of mutual trade with the former union states, VAT on imported goods or services is calculated according to an elementary scheme, and the payment of the budget fee is made to the treasury account of the territorial tax inspectorate.

The object for VAT taxation in the case of imports from the EAEU powers is determined as the cost of the purchased commodity mass, increased by the amount of excise duty (if necessary). The moment of formation of the tax base is determined by the calendar date when the imported goods are recorded in warehouse accounting. The amount of VAT is determined by simply multiplying the cost of purchased commodity products and the required tax tariff.

At the close of the quarter in which import transactions involving the movement of goods from the EAEU were carried out, the Russian importing company (IP) is obliged to submit a VAT declaration to the fiscal authority. The document must be submitted by the 20th day (inclusive) of the month following the reporting period.

Important: the “import” VAT declaration is submitted in the form of a “paper” document. Electronic reporting is used only by those taxpayers whose staff exceeds 100 people.

Simultaneously with submitting the VAT return, the importer is obliged to pay tax according to the banking parameters of “his” tax department. The payment order applies a separate BCC for VAT when importing from neighboring countries.

Payment of VAT at customs

The declarant or other persons (for example, the carrier) must pay VAT when importing goods (Article 143 of the Tax Code of the Russian Federation, Articles 79, 80 of the Customs Code of the Customs Union). If the declaration is made by a customs representative (broker), then he is responsible for paying VAT (Article 15 of the Customs Code of the Customs Union).

VAT upon import is paid to the customs authorities (clause 1 of article 174 of the Tax Code of the Russian Federation, article 84 of the Customs Code of the Customs Union).

In cases where goods are imported from a country with which Russia has concluded an international agreement on the abolition of customs control and customs clearance (for example, with countries participating in the Customs Union), VAT is paid to the tax authorities (clause 13 of Appendix 18 to the Treaty on the Eurasian Economic Union).

For information on the specifics of calculating VAT when importing goods from member countries of the Customs Union, see How to calculate and pay VAT when importing from the Customs Union.

VAT at customs must be paid in a special order: not based on the results of the quarter in which the goods were imported into Russia, but simultaneously with the payment of other customs duties.

The specific deadline for paying VAT depends on the customs procedure under which the imported goods were placed (Article 82 of the Customs Code of the Customs Union). So, for example, in relation to goods placed under the customs procedure of release for free circulation, the deadline for paying VAT is before the release of goods, provided that the importer does not apply any benefits for the payment of this tax (subclause 1, clause 3, article 211 of the Customs Code of the Customs union). Until VAT is paid, customs will not release the goods.

In addition, the procedure for paying VAT upon import depends on the customs procedure under which goods are placed. In some procedures, VAT must be paid in full or in part, while in others, it is not necessary to pay at all (Clause 1, Article 151 of the Tax Code of the Russian Federation).

Situation: how to pay and deduct VAT on the cost of goods imported to Russia from China in transit through Kazakhstan?

Pay VAT at Russian customs and accept it for deduction in the general manner.

The import of goods into Russia (import of goods) is recognized as an object of taxation under VAT (subclause 4, clause 1, article 146 of the Tax Code of the Russian Federation). The tax is paid as part of general customs payments (subclause 3, clause 1, article 70 of the Customs Code of the Customs Union).

At the same time, transporting goods in transit through Kazakhstan does not affect the procedure for paying VAT. This is because customs transit is just a control procedure. That is, goods are transported under customs control from the place of departure to the place of destination without paying customs duties and taxes (clause 1 of article 215, clause 1 of article 225 of the Customs Code of the Customs Union). Therefore, this transaction should be considered as a normal import from China to Russia. Consequently, VAT when importing goods must be paid only to Russian customs authorities in the generally established manner (clause 1 of Article 174 of the Tax Code of the Russian Federation, Article 84 of the Customs Code of the Customs Union).

The amount of VAT paid at customs can be deducted by the importer in this situation on a general basis without any special features (clause 2 of Article 171 of the Tax Code of the Russian Federation).

VAT on imports from countries outside the EAEU

When importing goods/services into Russian territory from countries outside the Eurasian Union, the importer is required to pay not only mandatory duties, but also VAT at customs. The procedure for calculating and paying taxes is regulated not only by the Tax Code of the Russian Federation, but also by the Customs Code.

Keep in mind: VAT at customs is paid not at the end of the reporting period, but before the completion of the procedure for releasing the goods from the customs post.

The formula by which the importer calculates the amount of VAT payable is as follows:

VAT = (TSt + VTP + A) x St

where: Tst – the value of the goods indicated in the customs declaration; ICT – the amount of import customs duty; A – excise tax (if necessary); St – VAT rate (%, 10%, 18%).

You need to know: if the imported goods are not subject to customs duties and excise taxes, then the amount of VAT is determined by multiplying the customs value by the desired tax rate.

To avoid conflicts with the customs service due to incorrect calculation of tax, it is advisable for the importer to calculate VAT separately for each group of goods.

VAT when importing goods into the customs territory of Russia

GOODS SUPPLIED FROM ABROAD MAY BE UNSUITABLE FOR USE - POOR QUALITY, DAMAGED DURING TRANSPORTATION, OR IN ANY WAY NOT COMPLY WITH THE TERMS OF THE CONTRACT. Situation 1. Upon acceptance of the goods received by the import organization, it turned out that the goods were broken and unsuitable for further sale. The goods became unusable as a result of an accident that occurred before the transfer of ownership. The supplier did not notify the buyer of this fact, so the accident was not reported to customs and customs duties and fees, including VAT, were paid by the buyer in full. The goods were pre-paid, so the buyer filed a claim with the supplier for the amount of losses (cost of goods, customs duties, VAT paid). How to reflect this operation in accounting based on the fact that the supplier can satisfy the claim either fully or partially? How to deal with VAT paid at customs when importing goods? According to the author, for an organization in this situation it would be most beneficial to use the customs destruction regime. REFERENCE The customs regime of destruction applies to foreign goods that were imported into the territory of the Russian Federation, but were destroyed, irretrievably lost or damaged due to an accident or force majeure. The use of this customs regime implies complete exemption from VAT on operations for the import of goods into the customs territory of the Russian Federation. It is allowed to destroy goods that cannot be restored to their original condition in an economically advantageous way (clause 1 of Article 244 of the Customs Code of the Russian Federation, hereinafter referred to as the Labor Code of the Russian Federation). It should be noted that, despite complete exemption, a regime such as destruction may entail mandatory payment of taxes and duties in the event of waste generation and the possibility of its further use. In addition, if customs duties and VAT were paid when goods were released for domestic consumption, then in general the organization may not collect customs duties and VAT from the supplier or carrier, but return them from the budget. This possibility is provided for by the Customs Code of the Russian Federation. In accordance with Art. 242 of the Labor Code of the Russian Federation, goods released for free circulation, in respect of which it was established that on the day of crossing the customs border they had defects or otherwise did not comply with the terms of the foreign economic transaction in terms of quantity, quality, description or packaging and for these reasons they are returned to the supplier or to another person specified by him may be placed under the customs regime of re-export if the specified goods: - were not used or repaired in the Russian Federation, except for cases where the use of the goods was necessary to detect defects or other circumstances that led to the return of the goods; - can be identified by customs authorities; - exported within six months from the date of their release for free circulation. The procedure for applying the re-export regime is explained in Art. 239 Labor Code of the Russian Federation. Under this regime, goods previously imported into the customs territory of the Russian Federation are exported from this territory without payment or with a refund of the paid amounts of import customs duties and taxes. Thus, if the organization manages to prove that the loss of quality of the product occurred even before crossing the customs border, then, subject to compliance with the other two conditions listed in the Customs Code of the Russian Federation, VAT and customs duties paid when importing this product into the customs territory of the Russian Federation are subject to refund from the budget. Confirmation can be found in the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated October 19, 2005 in case No. F08-4999/2005-1978A. The third option for receiving VAT from the budget is the export of goods in the export mode. Let's consider the option when an organization for some reason cannot receive VAT and customs duties from the budget. In accordance with clause 58 of the Guidelines for accounting of inventories, approved by Order of the Ministry of Finance of Russia dated December 28, 2001 N 119n, shortages and damage to goods in excess of the norms of natural loss, discovered when accepting them from suppliers, are taken into account at actual cost. The actual cost includes: - the cost of missing and damaged materials, determined by multiplying their quantity by the contractual (sale) price of the supplier (excluding value added tax). For excisable goods, excise taxes are included in the contract (sale) price; - the amount of transportation and procurement costs to be paid by the buyer, in the share related to missing and damaged materials; - the amount of value added tax related to the basic cost of missing and damaged materials and to transportation costs associated with their acquisition. If damaged materials can be used in the organization or sold (at a discount), they are accounted for at possible sale prices with losses from damage to materials reduced by this amount. The actual cost of shortages and damage in excess of the norms of natural loss is taken into account as a debit to the claims settlement account and written off from the credit of the settlement account (according to the supplier’s personal account). When capitalizing missing materials received from suppliers and subject to payment by the buyer, the cost of materials, transportation and procurement costs and value added tax included in the actual cost of shortages and damage are reduced accordingly. If, by the time the shortage or damage was discovered, settlements with the supplier had not been made, then payment is made minus the cost of materials missing and damaged due to the supplier’s fault, of which the buyer notifies the supplier in writing. In this case, unpaid amounts are not reflected in the claims settlement account (clause 59 of the Methodological Instructions). Let's look at the procedure for accounting for losses using an example*. EXAMPLE 1 Having made an advance payment to a foreign supplier, the organization received goods from him for the amount (in ruble equivalent) of 300,000 rubles. At customs, VAT was paid in the amount of 54,000 rubles, customs duties - 10,000 rubles. Upon acceptance, it turned out that all the goods were unsuitable for further use, as they were broken as a result of an accident that occurred before crossing the border before the transfer of ownership. The organization filed a claim with the supplier in the amount of 364,000 rubles, which includes the cost of the goods, VAT and customs duties. According to the author, accounting can be carried out according to the following scheme: Debit 60 Credit 52 - 300,000 rubles. - prepayment was transferred to the supplier Debit 19 Credit 68 - 54,000 rubles. — VAT is charged and payable at customs Debit 68 Credit 51 — RUB 54,000. - VAT paid at customs Debit 97 Credit 51 - 10,000 rubles. — customs duties have been paid. * To simplify the example, the occurrence of exchange rate differences is not considered. Since the organization received the products in a form that does not correspond to that established by the contract, the ownership of this product did not pass to the buyer. On this basis, the specified products damaged during transportation are not subject to reflection on account 41 “Goods”. The cost of the goods is included in the amount of the claim: Debit 76 subaccount 2 “Calculations for claims” Credit 60 - 300,000 rubles. - a shortage of goods was identified in the form of its loss Debit 76 subaccount 2 “Calculations for claims” Credit 19 - 54,000 rubles. - included in the actual cost of losses and in the amount of the claim VAT paid at customs Debit 76 subaccount 2 “Calculations for claims” Credit 97 - 10,000 rubles. — customs duties are included in the actual cost of losses and in the amount of the claim. Broken products are not exported for re-export. Further postings depend on the type of relationship with the supplier. Option 1 The supplier satisfied the buyer’s claim in full in the amount of 364,000 rubles, including 300,000 rubles. - goods, and 64,000 rubles. - money. When moving goods received in exchange for damaged ones across the customs border, the organization again pays customs duties: Debit 19 Credit 68 - 54,000 rubles. — VAT is charged and payable at customs Debit 68 Credit 51 — RUB 54,000. - VAT paid at customs Debit 97 Credit 51 - 10,000 rubles. — customs duties paid Debit 41 Credit 76 subaccount 2 “Settlements on claims” — 300,000 rubles. — the goods received are capitalized Debit 41 Credit 97 — 10,000 rubles. — the increase in the cost of goods includes customs duties paid for a new delivery Debit 68 Credit 19 — 54,000 rubles. - accepted for deduction of VAT paid when importing a new batch of goods Debit 52 Credit 76 subaccount 2 “Settlements on claims” - 64,000 rubles. — losses are compensated by the supplier for the amount of VAT and other customs payments. Option 2 The supplier satisfied the claim only for the cost of the goods - 300,000 rubles. When moving goods across the customs border, the organization again pays customs duties: Debit 19 Credit 68 - 54,000 rubles. — VAT is charged and payable at customs Debit 68 Credit 51 — RUB 54,000. - VAT paid at customs Debit 97 Credit 51 - 10,000 rubles. — customs duties paid Debit 41 Credit 76 subaccount 2 “Settlements on claims” — 300,000 rubles. — the goods received are capitalized Debit 41 Credit 97 — 10,000 rubles. - the increase in the cost of goods includes customs payments paid for a new delivery Debit 68 Credit 19 - 54,000 rubles. — VAT paid when importing a new batch of goods is accepted for deduction. So, in accordance with the provisions of Art. 171 and 172 of Chapter 21 of the Tax Code of the Russian Federation, taxpayers have the right to reduce the total amount of VAT calculated in accordance with Art. 166 of the Tax Code of the Russian Federation in relation to operations for the sale of goods (works, services) on the territory of the Russian Federation, for the amount of tax actually paid when importing goods into the territory of the Russian Federation, after registration of imported goods in the presence of appropriate primary documents and the use of these goods for carrying out operations, subject to value added tax. In this case, the goods were broken and, therefore, will not be used for transactions subject to VAT, so the tax on them cannot be deducted. Debit 91 Credit 76 subaccount 2 “Calculations for claims” - 64,000 rubles. — the buyer’s losses not reimbursed by the supplier in the form of VAT and other customs payments are charged to the profit and loss account. According to the author, since the organization did not take advantage of the above opportunities provided to it by the Customs Code of the Russian Federation for the return or non-payment of customs duties, VAT and customs duties charged as expenses cannot be accepted for tax purposes, since such expenses are not economically justified. Option 3 The supplier refused to satisfy the claim, and the buyer lost the case in court. Debit 94 Credit 76 subaccount 2 “Calculations for claims” - 364,000 rubles. — the buyer’s losses not compensated by the supplier in the form of the cost of goods, VAT amounts and other customs payments are attributed to the shortage upon receipt of a negative court decision Debit 91 subaccount 2 “Other expenses” Credit 94 — the amount of the shortage is attributed to other income and expenses. As in the previous example, these expenses, in the author’s opinion, are not taken into account when calculating income tax. Situation 2. A Russian organization imports tools - spare parts for fixed assets used to produce products. The terms of the foreign trade contract stipulate that if the quality of the supplied tool does not correspond to what was originally declared (spare parts will last less than a year from the moment of installation), the foreign seller will replace it free of charge and reimburse the buyer for all expenses, with the exception of VAT paid at customs. The tool was delivered, put into operation, and a few months later dismantled as being of poor quality and replaced by the supplier with a new one. The initially supplied instrument is not exported from the territory of the Russian Federation, but is written off according to the act as unfit for use. Is it necessary to enter the instrument a second time in accounting? How to deal with VAT paid at customs on initial and secondary deliveries? Spare parts in accounting are reflected in a separate subaccount to account 10 “Materials”. In accordance with paragraph 1 of Art. 172 of the Tax Code, deduction of VAT on materials imported into the territory of the Russian Federation is made after they are accepted for registration in the presence of the appropriate primary documents and documents confirming the actual payment of the tax amount. Article 1221 of the Civil Code of the Russian Federation establishes that, at the choice of the victim, the following applies to a claim for compensation for damage caused by defects in a product: - the law of the country where the seller or manufacturer of the product or other cause of harm has its main place of business; - the law of the country where the victim has his main place of business; - the law of the country where the goods were purchased. Thus, when making a claim against a foreign supplier, a Russian organization of its own choice, without obtaining the consent of the other party, has the right to be guided by both Russian legislation and the legislation of the country in accordance with which the foreign legal entity was created. In accordance with the Civil Code of the Russian Federation, it is established that: - the seller is obliged to transfer to the buyer goods, the quality of which corresponds to the purchase and sale agreement (clause 1 of Article 469 of the Civil Code of the Russian Federation); - in the case where the purchase and sale agreement provides for the provision by the seller of a guarantee of the quality of the goods, the seller is obliged to transfer to the buyer the goods, which must meet the requirements provided for in Art. 469 of the Civil Code of the Russian Federation, for a certain time (guarantee period) established by the contract (clause 2 of Article 470 of the Civil Code of the Russian Federation); - the seller is obliged to transfer the goods for which an expiration date has been established to the buyer in such a way that it can be used for its intended purpose before the expiration date, unless otherwise provided by the contract (Clause 2 of Article 472 of the Civil Code of the Russian Federation); - in the event of a significant violation of the requirements for the quality of the goods (detection of irreparable defects, defects that cannot be eliminated without disproportionate costs or time, or are identified repeatedly or appear again after their elimination, and other similar defects), the buyer has the right, at his own discretion, to refuse fulfillment purchase and sale agreement and demand the return of the amount of money paid for the goods or demand the replacement of goods of inadequate quality with goods that comply with the contract. EXAMPLE 2 An import organization receives spare parts with a one-year warranty period. Having made an advance payment to a foreign supplier, the organization received from him spare parts worth RUB 300,000. (in ruble equivalent). At customs, value added tax was paid in the amount of 54,000 rubles. Spare parts were capitalized and transferred to production. VAT on them, paid at customs, was accepted for deduction. Six months later, it turned out that the quality of the spare parts did not correspond to what was stated in the contract, and they were dismantled. A claim has been submitted to the supplier. The supplier, having admitted his guilt, without additional payment according to the contract, sent a new batch of spare parts to replace the low-quality ones with a cost (in ruble equivalent) of 300,000 rubles. At customs, VAT was paid in the amount of 54,000 rubles. Spare parts were capitalized and transferred to production. The foreign counterparty does not reimburse VAT according to the contract. Accounting for the receipt and use of spare parts can be maintained according to the following scheme. Debit 60 Credit 52 - 300,000 rub. - prepayment was transferred to the supplier Debit 19 Credit 68 - 54,000 rubles. — VAT is charged and payable at customs Debit 68 Credit 51 — RUB 54,000. — VAT paid at customs Debit 10 subaccount “Spare parts for main production” Credit 60 — 300,000 rub. — spare parts were capitalized Debit 68 Credit 19 — 54,000 rub. — VAT paid at customs is accepted for deduction Debit 20 Credit 10 subaccount “Spare parts for main production” — RUB 300,000. — the cost of spare parts was written off for production Debit 10 subaccount “Spare parts for replacement by suppliers” Credit 91 — RUB 300,000. — dismantled spare parts were capitalized. At the same time, the tax previously accepted for deduction should be restored and paid to the budget, since these spare parts must be replaced and will no longer be used in activities subject to VAT. Debit 19 Credit 68 - 54,000 rub. — VAT has been restored to the budget. This VAT can be deducted if the organization exports spare parts in the export mode. In our case, the customs destruction regime cannot be applied: it applies only to those goods that are considered foreign at the time they are placed under this regime, which does not apply to goods released under the regime for domestic consumption. The customs regime for re-export cannot be applied, because this regime is applied when the goods have not been used in the Russian Federation, and the six-month period has not yet passed from the date of their release into free circulation. Since in this case the organization is not going to take advantage of the opportunity to recover VAT by exporting spare parts, VAT is written off as expenses. But, according to the author, this VAT is not accepted for tax purposes, since such expenses cannot be considered economically justified. Debit 91 Credit 19 - 54,000 rub. — VAT is written off Debit 76 subaccount 2 “Calculations for claims” Credit 10 subaccount “Spare parts for replacement by suppliers” — RUB 300,000. - a claim to the supplier Debit 002 - 300,000 rubles was made. - The spare parts are accepted for augalance record to the supplier Debit 10 subaccount “Spare parts for the main production” Credit 76 sub -account 2 “Claim calculations” - 300,000 rubles. - The spare parts received from a foreign supplier instead of poor -quality debit 19 Credit 68 - 54,000 rubles are capitalized. - VAT is charged, payable at customs when importing spare parts instead of poor -quality debit 68 Credit 51 - 54,000 rubles. - VAT at customs Debit 68 Credit 19-54,000 rubles was paid. - The VAT paid at customs was deducted in the generally established manner Debit 20 Credit 10 sub -account “Spare parts for the main production” - 300,000 rubles. - The cost of spare parts for production was written off. Situation 3. The organization acquired vegetable raw materials by import. In accordance with the contract, the parties agreed that the obligation of the supplier for the supply of raw materials is considered executed if, upon acceptance, its actual weight deviates from the declared by no more than 1%. In this case, according to the contract, the value of the party is not subject to change and the supplier is not made a claim for the amount of undercomed raw materials. How, in this case, it is necessary to consider a decrease in the amount of raw materials supplied: as an increase in the price of the actually obtained raw materials, as a change in the number of shipped batch associated with a change in physico-chemical properties, transportation, loading and unloading, or is it a shortage of goods not taken into account for the purpose of taxation of profit? Is it legitimate in the situation under consideration to accept VAT paid at customs during the import of raw materials into the territory of the Russian Federation, in full? If the contract does not indicate that the change in the amount of the delivered raw materials entails a change in its unit, then it can not be regarded that when the imported raw materials are deviated by 1 % towards the decrease from the amount indicated in the supplier’s commercial documents, the price of the supplied raw materials is increased. In this case, the buyer organization does not have a loss compensated by the supplier. Obviously, such conditions are included in the contract for special reasons. The difference in weight can occur due to different humidity at the shipment and reception points, losses during loading, overload and unloading, and even due to errors in measuring instruments. All these circumstances do not indicate that the losses are unfounded and even more so since they are provided for by agreement of the parties. In accordance with under paragraphs 2 and 3, paragraph 7 of Art. 254 of the Tax Code of the Russian Federation, material consumptions for tax purposes are equated:-losses from shortage and (or) damage during storage and transportation of inventories within the limits of natural loss, approved in the manner established by the Government of the Russian Federation. Natural decline occurs due to a natural change in the biological and (or) physico-chemical properties of the goods. In this case, the mass of the goods is reduced, but its quality is preserved; - Technological losses in production and (or) transportation. Technological losses are recognized as losses in the production and (or) transportation of goods (works, services) due to the technological features of the production cycle and (or) the transportation process, as well as the physicochemical characteristics of the raw materials used. Technological losses are not normalized, they can be accepted when calculating income tax in full size. Thus, according to the author, the reduction in the weight of the raw materials within 1% of the supplier declared in the cost -proof documents can be qualified as natural decline, if such norms exist, and technological losses. Both must be documented. As indicated in the letter of the Ministry of Finance of Russia dated 01.11.2005 N 03-03-04/ 1/328, the taxpayer has the right to independently determine and substantiate the standards of losses, for example, on the basis of the calculations and research of the technological services of the enterprise itself. The results should be enshrined and approved by the persons authorized by the enterprise by persons in any document (this may be a technological map, the estimate of the technological process or other document). For documentary confirmation of technological losses, industry regulatory acts, conclusions of specialized research institutes and the like can be used. Many believe that technological losses arise only after the start of the technological process, however, according to the author, this is not so. And this is confirmed by federal judges. Practice in the Decree of the FAS of the North-Western District dated 10.26.2005 N A56-37623/2004 is indicated: “As follows from the case file and established by the courts, due to the transportation of grain from suppliers, carrying out loading and unloading, as well as taking into account the errors of weights , the company arising from these processes, the losses included in the composition of technological losses in the amount of 1% of the actually received malt, which reflected in the technological map of production ... by letter of the Ministry of Finance of the Russian Federation of 02.09.2003 N 04-02/1/85, the validity of the use in production was confirmed in production Such losses. The tax authority did not have legal grounds to exclude these losses from the costs of the taxpayer and additional charges for the corresponding period of income tax, penalties and a fine ... ”. Thus, already in the process of transporting raw materials from suppliers, technological losses may occur, which, according to the author, should be accepted when calculating income tax in the event that the terms of the contract provides for the assignment of such shortages at the expense of the buyer. The consistent contract is the shortage at the expense of the buyer, therefore, subject to the conditions considered above and, depending on the actual circumstances, it can be regarded as natural decline and technological losses during transportation accepted during taxation. On the application of the tax deduction for VAT from the cost of raw materials imported into the customs territory of the Russian Federation, the following must be taken into account. In paragraph 2 of Art. 171 of the Tax Code of the Russian Federation it was set that tax amounts paid by the taxpayer paid by the taxpayer when importing goods into the customs territory of the Russian Federation in customs regimes for domestic consumption, temporary import and processing outside the customs territory or when importing goods transported across the customs border of the Russian Federation without customs control and the import of goods. customs clearance in relation to goods (works, services) purchased for transactions recognized by objects of taxation. The organization uses raw materials imported into the customs territory of the Russian Federation in the production of products (that is, to perform operations recognized by objects of tax on VAT) in full. Shortages are accepted for profit tax purposes. Therefore, the organization has the right, after capitalizing the resulting raw materials, to deduct the VAT paid when importing it into the customs territory of the Russian Federation, also in full. Marina Vlasova, Expert Economics and Life

VAT on import of services

Receiving services from a foreign counterparty does not require documentation at the customs post. A legal entity or individual acting as a buyer is a tax agent and must withhold the amount of VAT from the supplier and transfer it to the federal budget.

The documentary basis for payment is a contract, in which it is necessary to state the condition that the amount of VAT is included in the total cost of the service provided. If there is no such clause in the contract, then the importer will be required to pay VAT in excess of the contract amount, at his own expense.

If the work and services performed by the foreign partner are subject to Art. 149 of the Tax Code of the Russian Federation and are not subject to VAT, the importer is relieved of the duties of a tax agent - he must neither calculate nor transfer tax to the budget. However, he retains the obligation to submit a VAT return with completed section 7 to the tax authority at the place of his registration.

What goods does VAT not apply to?

VAT does not apply to goods provided for in Art. 150 Tax Code of the Russian Federation. To avoid the tax, it is not enough to import the specified products. The customs authority will ask for permits confirming the benefit.

The list of goods exempt from tax is quite extensive. To familiarize yourself with it, you can visit the Federal Tax Service website or study Art. 150 Tax Code of the Russian Federation. Here are some items from the list:

Prosthetic and orthopedic products;
Means for the rehabilitation of disabled people (a more detailed list is in paragraph 2 of Article 149 of the Tax Code of the Russian Federation);
Free assistance, with the exception of excisable products;
Materials for the production of immune drugs;
Equipment that has no Russian analogues;
Cultural property purchased by government agencies;
Printed materials, films imported under international exchange programs;
Breeding cattle.

As follows from Art. 151 of the Tax Code of the Russian Federation, importers are exempt from VAT in the following cases:

The goods are placed at customs under such procedures as liquidation, transit, transfer to the state, re-export, duty-free sale, etc.;
If the product is intended for processing;
The goods are subject to import time restrictions.

If an importer is interested in tax exemption, it is necessary to find out whether or not his goods fall under the procedures and rules for exemption established by the Tax Code of the Russian Federation.

If the customs department has identified the misuse of benefits, fines and penalties are assessed as provided for by the Tax Code of the Russian Federation.

Right to tax deduction for VAT

According to the generally established rule, taxpayers who have paid VAT at the customs post have the opportunity to declare a deduction in the declaration for the amount of tax paid. The provision of a deduction is guaranteed if the following criteria are met:

imported goods will be used on Russian territory in transactions subject to VAT;
imported products will be resold in the future;
a tax deduction can be claimed by a Russian company only in the quarter when the goods are registered;
receipt of imported goods is confirmed by an invoice, contract or customs declaration;
payment of VAT is certified by primary documents received at customs.

If the importer is a business entity exempt from VAT or operating under a special regime, then the tax deduction is not applied. The VAT paid at customs will be taken into account in the nominal price of the goods upon receipt and subsequent sale.

Information about received imported goods/services is subject to entry into the purchase book indicating the amount of VAT. The prerequisite for registering the fact of purchase is payment of tax and an import statement certified by the tax authority.

Rules for accepting import VAT as deductions

To include import-related VAT in deductions, regardless of which country the import was made from, the following conditions must be met (clause 2 of Article 171, clause 1 of Article 172 of the Tax Code of the Russian Federation):

the goods are accepted for accounting (and this may also be off-balance sheet accounting);
the goods are intended for operations subject to VAT;
tax has been paid.

For imports from a country that is not a member of the EAEU, these conditions are met at the time of import. Since no additional actions are required from the taxpayer, such tax is deducted during the period of importation. The document that serves as an invoice for him when entering data into the purchase book is a cargo customs declaration (CCD).

When importing from a member country of the EAEU, the tax is paid in the month following the month of import, which at the border of tax periods will lead to a transfer of the deduction to a later one. In addition, the possibility of its application here poses additional requirements related to the presence of special mandatory reporting submitted to the Federal Tax Service (import application and declaration). Until it is accepted by the tax authority, the deduction is not considered possible (letter of the Ministry of Finance of Russia dated July 2, 2015 No. 03-07-13/1/38180). A deduction for imports from a member country of the EAEU will be included in the purchase book with reference to the details of the import application.

Documents to confirm the right to deduct VAT

The initial documents allowing the importer to claim VAT deduction are:

foreign trade contract with a foreign supplier;
invoice for payment from the supplier (invoice);
customs declaration - customs declaration (copy);
bank statements, certified duplicates of payment orders.

All documents justifying the application for a VAT tax deduction when importing goods should be kept for at least four years.

Can an unscrupulous counterparty leave the importer without a deduction?

One of the key conditions for confirming VAT on imports, which follows from all of the above, is that the participants in the transaction should not be fictitious structures that, in order to receive a deduction, formalize business relations with non-existent or unscrupulous companies. The importer needs to understand that when checking the reality of the transaction during the “camera chamber”, tax authorities will also pay attention to his counterparty, albeit from another state.

The letter of the Federal Tax Service of Russia dated December 31, 2015 No. ED-4-2/ [email protected] states that denial of VAT deductions is possible if the tax authorities establish that your actions are aimed at obtaining an unjustified tax benefit, or you simply do not exercised due diligence.

Why is it so important to check the counterparty?

The subtleties of paying VAT when importing goods and other issues relevant to foreign trade participants are discussed at meetings of the Directors Club. You can register for the event in advance. And here you can see the report on the meeting of the closed Directors Club, which took place on March 21, 2020.

Tax deduction for prepayment

In most cases, for foreign trade deliveries, prepayment is practiced. When transferring an advance payment for the upcoming receipt of goods, the buyer pays VAT on the advance payment amount.

In order to avoid duplicate taxation, VAT on advances made can be declared as a tax deduction during customs clearance of goods delivery and payment of the final amount of VAT.

Many Russian companies prefer not to deal with customs clearance of imported goods themselves, but delegate this procedure to intermediaries. If VAT at customs was paid by a third party, but at the expense of the importer and on his behalf, then the amount paid can be recorded as a tax deduction.

VAT rates

Depending on the type of imported goods, the tax rate is 10 or 18 percent (clause 5 of Article 164 of the Tax Code of the Russian Federation). Accrue VAT in rubles and round to the second decimal place, clause 30 of the Instructions, approved by Order of the State Customs Committee of Russia dated February 7, 2001 No. 131).

When implementing certain types of work (services) related to the import of goods, a VAT rate of 0 percent is applied (clause 1 of Article 165 of the Tax Code of the Russian Federation).

Situation: what to do if customs requires you to charge VAT on imported goods at a higher rate than provided for by Russian tax legislation?

If the organization does not agree with the customs decision, appeal it to a higher customs authority or in court.

When calculating VAT on goods imported into Russia, customs applies the rates established by Russian tax legislation (paragraph 3, paragraph 2, article 77 of the Customs Code of the Customs Union).

According to the general rule, the declarant calculates VAT at customs independently (determines the product code, tax rate and amount of payment) (Clause 1, Article 76 of the Customs Code of the Customs Union). However, in some cases, customs officers have the right to perform these functions for him. For example, if they consider the classification of goods chosen by the declarant to be incorrect (clauses 1–3 of Article 52 of the Customs Code of the Customs Union).

Customs decisions on the classification of goods are mandatory (clause 6, article 52 of the Customs Code of the Customs Union). However, the declarant has the right to appeal them in accordance with Article 9 of the Customs Code of the Customs Union (paragraph 2, paragraph 3, article 52 of the Customs Code of the Customs Union). This can be done by filing a complaint with a higher customs department (for example, a regional customs department) or in court (Article 9 of the Customs Code of the Customs Union, Chapter 3 of Law No. 311-FZ of November 27, 2010).

If the customs decision is found to be unfounded, the requirement to pay tax at a higher rate may not be fulfilled (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated March 26, 2014 No. F05-2220/2014). But if it has already been executed, the organization has the right to return the amount of overpaid VAT through the court (see, for example, resolutions of the Federal Antimonopoly Service of the Ural District dated September 27, 2013 No. F09-9170/13, Moscow District dated October 21, 2011 No. A40-151153 /10-140-889). And if the overpaid VAT was accepted for deduction, the tax amount will have to be restored. This must be done in the quarter when the court decision canceling the customs requirements came into force. Such clarifications are contained in the letter of the Federal Tax Service of Russia dated April 21, 2014 No. GD-4-3/7606.

Advice: when importing perishable food products, in order to speed up their customs clearance, pay VAT in the amount indicated by customs officers. The importer has the right to deduct the amount of VAT paid at customs (clause 2 of Article 171 of the Tax Code of the Russian Federation).

Product made from customer-supplied raw materials sold to the EAEU without import to the Russian Federation

Obviously, if the final product is not imported into Russia, but is sold, say, there (in the country of the processor), the fact of import for the Russian customer will not take place, which means he will not have to pay “import” VAT. But this is not the only plus. There is one more advantage: the operation directly for selling the processed product will also not entail the calculation and payment of VAT. Why?

Yes, because the object of VAT taxation is the sale of goods specifically on the territory of Russia. When is a product considered sold in Russia? When, at the time of the start of shipment and transportation, it is located on the territory of the Russian Federation (clause 2, clause 1, article 147 of the Tax Code of the Russian Federation).

In the case when a product manufactured outside the Russian Federation is sold there, Russia will not be the point at which shipment and transportation begin. Therefore, we can talk about the absence of an object of VAT taxation. The Ministry of Finance also agrees with this conclusion (Letter dated December 7, 2015 No. 03-07-13/1/71416).

But here a point arises: since the operation is not subject to VAT, then if, when purchasing raw materials, VAT was included in the cost of the goods, which was accepted for deduction, it will need to be restored. This obligation arises by virtue of paragraphs. 2 p. 3 art. 171 Tax Code of the Russian Federation. VAT will need to be restored in the quarter in which the sale occurred.

And that is not all.

There may be one “pitfall” that a Russian organization that decided to carry out such a transaction, seeing in it a scheme of legitimate tax optimization, may not be aware of.

Remember, according to our legislation, an organization that purchased goods from a foreigner who is not registered with our Federal Tax Service becomes a tax agent for VAT (Article 161 of the Tax Code of the Russian Federation)?

As is known, the duties of a tax agent include the calculation and withholding of VAT from the amount due for transfer to a foreign seller. As a result, the latter receives the amount minus “Russian” VAT.

So, the same procedure may apply in the country where the Russian organization is going to sell the final product.

For example, Belarusian tax legislation contains a similar provision. This means that a Russian company that sold the final product abroad without importing it into the territory of the Russian Federation can receive its income from the sale minus VAT withheld by the foreign buyer.

Return of finished goods and raw materials from processing

A foreign company from the EAEU received raw materials from a Russian customer and processed them. Then the finished product is delivered to the customer in Russia. At this stage, the Russian organization receiving the final product becomes obligated to calculate VAT.

When goods are imported by their owners into the territory of Russia from other states that are members of the EAEU, VAT is collected by Russian tax authorities (clause 4, article 72 of the Treaty on the EAEU, clause 13 of Appendix No. 18 to the Treaty on the EAEU). In this case, the final product received by the organization from processing from a foreign processor is equated to “goods”.

Moreover, this rule also applies in the case where the raw materials for the manufacture of the final product were purchased in the same country where the processing company is located. This is not stated directly, but this conclusion can be traced from the letter of the Ministry of Finance of Russia dated May 27, 2019 No. 03-07-13/1/38177.

When importing the final product, the Russian customer (the owner of the raw materials and the final product) must calculate VAT at the “regular” rates: 10 or 20 percent, depending on the type of the final product.

Here the question arises: at what point is it necessary to determine the tax base and, accordingly, calculate VAT? At the moment when the resulting processed product is accepted for accounting, that is, when its value is formed and reflected in the appropriate account. This clearly follows from clause 14 of Appendix 18 to the Treaty on the EAEU.

Then the next question arises: how to calculate the tax base? The answer to this is contained in paragraph. 5 clause 14 of Appendix 18 to the Treaty on the EAEU. It says that the tax base is determined as the cost of work performed on the processing of customer-supplied raw materials. If this value is expressed in foreign currency, then it is recalculated into rubles at the Bank of Russia exchange rate on the date of acceptance of processed products for accounting.

Thus, there is no need to include the cost of the customer-supplied raw materials in the tax base when calculating “import” VAT. But this cost will need to be taken into account when determining the cost of the final product reflected in accounting.

What if raw materials for processing were purchased not in Russia, but in another EAEU member country and were immediately transferred to the processor without import into the territory of the Russian Federation? How to calculate the tax base in this case? The provisions of Appendix No. 18 to the Treaty on the EAEU say nothing about this, which in practice gives rise to disputes and conflicting interpretations.

The tax base in this case is determined based on the cost of processing work and the cost of raw materials. This is argued as follows: the use of “non-Russian” raw materials in the tolling scheme actually leads to the import of raw materials into the territory of the Russian Federation. But only these raw materials are imported into Russia not on their own, but as part of the final product. And therefore, the VAT tax base must include not only the cost of processing, but also the cost of such raw materials.

There are no official explanations from officials on this matter, as well as judicial practice. However, the provisions of the Rules for filling out an application for the import of goods and payment of indirect taxes contained in Appendix 2 to the Protocol of December 11, 2009 “On the exchange of information in electronic form between the tax authorities of the member states of the Eurasian Economic Union on the paid amounts of indirect taxes” speak in favor of this option .

Thus, from clause 3 of these Rules it follows that in the case of importing into the territory of the Russian Federation a final product processed from customer-supplied raw materials that was purchased on the territory of another member of the EAEU, it is necessary to fill out two applications. One of them is intended to be sent to the seller of raw materials, the second - to the seller of work on processing customer-supplied raw materials, i.e. to the processor. In fact, this indicates that the tax base for VAT in relation to the imported processed product will consist of two values: the cost of customer-supplied raw materials indicated in one application, and the cost of processing work indicated in the second application.

So, the Russian company that received the final product charges and pays VAT. She can subsequently deduct this VAT if the following conditions are simultaneously met:

products are used for VAT-taxable transactions;
products are accepted for accounting;
The organization has in its possession an application for the import of goods and payment of indirect taxes with a mark from the tax inspectorate and payment documents confirming the payment of the tax (clause “e”, clause 6 of the Rules for maintaining a purchase book, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137, Letter of the Ministry of Finance of the Russian Federation dated July 2, 2015 No. 03-07-13/1/38180);
the amount of VAT is reflected in the tax return for indirect taxes.

Thus, the right to deduct on imported goods arises no earlier than the period in which the tax on such goods is paid and reflected in the corresponding declaration and application (letter of the Ministry of Finance of the Russian Federation dated September 5, 2012 No. 03-07-13/01-47).