The supplier does not provide an invoice for what to do. No invoice issued: can VAT be refunded? Some courts refuse to apply the norms of the Civil Code of the Russian Federation to tax relations
At first glance, it is not difficult to resolve the problem. To do this, it is enough to include in the contract with the supplier (or contractor) a condition according to which the latter is obliged to issue an invoice drawn up in accordance with the requirements established by law. And for failure to comply with the prescription in the same contract must provide for sanctions, for example, the accrual of penalties, the amount of which will be equal to the amount of "lost" VAT.
It's really easy to prescribe such conditions. But will they "work" if, due to violations of the partner, the tax authorities really deny the company a VAT offset? Alas, there is no definite answer to this question. The problem is that the obligation to expose and the recovery of damages are, so to speak, in different “legal fields”. The first concept is from the field of public law relations, that is, those in which one of the parties is the state, and the second is from the field of private law. Therefore, by prescribing the above condition in the contract, business partners, i.e. subjects of private law, are trying to settle public law relations. It is from this "place" that the disagreements between lawyers, tax authorities and judges begin.
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If the supplier does not issue an invoice, but the taxpayer still has time to claim a refund, the latter has the right to file a claim with an arbitration court and oblige the business partner to do this as soon as possible. The Supreme Arbitration Court announced this back in 2004 (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 30, 2004 No. 101/04). However, it should be remembered that such a dispute will be resolved positively only if the corresponding obligation of the counterparty was enshrined in the contract.
Some experts believe that the VAT amount transferred to the budget cannot be considered a “civil” loss. Because the subject of private law cannot require the counterparty to comply with the rules of another area of law. Accordingly, there can be no "civil compensation" on the basis of Article 15 of the Civil Code of the Russian Federation. For example, in one of the decisions, the arbitration judges directly indicated that such "... the claim of the plaintiff arises from tax legal relations, since the issues of applying the tax deduction are the subject of tax law and are not regulated by civil legislation ..." (Resolution of the FAS of the Ural District of April 27, 2010 No. А07-14206 / 2009; a similar practice - resolutions of the Federal Antimonopoly Service of the Volgo-Vyatka District of September 24, 2008 No. А11-11888 / 2007-K1-9 / 605-40 and of June 9, 2008 No. А17-4226 / 13-2007, FAS of the East Siberian District of September 26, 2006 No. A19-9546 / 06-16-F02-4769 / 06-C2, FAS of the Far Eastern District of January 24, 2005 No. F03-A51 / 04-1 / 3254; FAS of the Moscow District of November 19, 2009 No. KG-A40 / 11937-09, FAS of the Ural District of April 27, 2010 No. F09-2837 / 10-C2; as well as the resolution of the Sixteenth Arbitration Court of Appeal dated December 29, 2008 No. 16AP-2481/08, etc.).
The opinion of judges, tax officials and lawyers
Other judges, tax authorities and lawyers believe that in such a situation there is a kind of transfer of public law concepts into the sphere of private law by securing the first.Accordingly, if the partner in the transaction does not issue an invoice, this can be qualified as a violation of a duty enshrined in private law. - legal agreement, and calmly go to court. Therefore, Articles 15 and 309 of the Civil Code of the Russian Federation should be used here. There are currently cases of recovering losses from a partner in the form of an amount (albeit very few, for example, resolutions of the Federal Antimonopoly Service of the Volga District of August 26, 2009 No. A65-25888 / 2008, of the Seventeenth Arbitration Court of Appeal dated December 14, 2010 No. 17AP -11862 / 2010-GK in case No. A50-12478 / 20104, the Eighth Arbitration Court of Appeal dated February 14, 2013 in case No. A75-6948 / 2012, the Ninth Arbitration Court of Appeal dated October 10, 2013 No. 09AP-32624/2013 -GK in case No. A40-95423 / 2012 and dated January 16, 2012 No. 09AP-32926/2011-AK in case No. A40-48916 / 11-11-403). Moreover, in the "arsenal" of arbitrators' decisions there is a resolution of the Supreme Arbitration Court (RF Supreme Arbitration Court of April 9, 2009 No. 16318/08 in case No. A40-37607 / 07-51-379), from which it is clear that the servants of Themis considered the issue of refusal to refund VAT overpaid to the seller by the buyer due to an erroneous tax rate, unjust enrichment of the seller, that is, from the point of view of civil law. And despite the fact that in that dispute it was not about losses, it is quite possible to use it as an additional, albeit indirect, argument. Nevertheless, it should be remembered that if the company decided to apply to arbitration to recover from the partner an amount equal to the uncollected VAT deduction, then it will be necessary, in particular, to prove to the arbitrators that the inspectors refused precisely because there were no documents provided. invoices. But here another difficulty may arise.
“The point is,” explains tax lawyer Sergei Voronin, “that the Constitutional Court has already indicated, and the arbitration courts have supported the conclusion that the invoice is not the only document confirming the right to value added tax (definition of the Constitutional Court of the Russian Federation of October 2, 2003 No. 384-O, Resolution of the Federal Antimonopoly Service of the West Siberian District of March 17, 2011 No. A70-1837 / 2010, FAS of the Moscow District of September 28, 2011 No. A40- 143191 / 10-28-1189, definition of the Supreme Arbitration Court of the Russian Federation dated January 27, 2011 No. VAS-63/11). Thus, it will be more difficult to prove in arbitration that the deduction was not obtained precisely because of the absence of an invoice. Therefore, before going to court, the affected company should try to get the deduction through other documents. And only if the tax authorities refuse her, go to arbitration. At the same time, one of the main proofs will have to serve this very refusal, which clearly states that the taxpayer's claims were not supported precisely because of the absence of an invoice. "
Situation: Between two organizations that are VAT payers, a contract for the purchase and sale of a car has been concluded. The contract contains the price of the car, including VAT. The organization-buyer, on the basis of the invoice issued by the seller, paid the price of the car in full, including the amount of VAT. However, in the future, when the buyer turned to the seller with a request to provide an invoice, he was refused on the grounds that the car belongs to an individual by right of ownership, was sold by the organization under a commission agreement and, accordingly, the amount of the sale of the car is not subject to VAT. At the same time, the seller refused to return on a voluntary basis the amount of VAT paid.
Let us analyze possible ways to protect the buying organization, taking into account the provisions of the current civil and tax legislation and the existing judicial practice. 1. Refusal to execute the contract In accordance with clause 2 of article 456 of the Civil Code of the Russian Federation, unless otherwise provided by the contract of sale, the seller undertakes, simultaneously with the transfer of the thing, to transfer to the buyer its accessories, as well as the documents related to it, provided for by law, other legal acts or the contract. In accordance with article 464 of the Civil Code of the Russian Federation, if the seller does not transfer or refuses to transfer to the buyer the documents related to the goods, which he must transfer in accordance with the law, other legal acts or the contract of sale, the buyer has the right to refuse the goods, unless otherwise provided agreement. The obligation of the seller to provide an invoice within 5 (five) calendar days from the date of shipment of the goods or from the date of receipt of the payment amounts is provided for in paragraph 3 of Art. 168 of the Tax Code of the Russian Federation. In accordance with paragraph 1 of Art. 169 of the Tax Code of the Russian Federation, an invoice is a document serving as the basis for the acceptance by the buyer of the VAT amounts presented by the seller for deduction. In judicial practice, the position was reflected that since an invoice is a document that must be transferred after the shipment of the goods by force of law, the failure to fulfill this obligation by the supplier gives the buyer the right to demand its fulfillment, including setting a time limit for the transfer of documents, and withdrawing from the contract, if the documents are not submitted in due time (Resolution of the Federal Antimonopoly Service of the Volga District of 25.04.2007 on case No. A65-20121 / 2006). At the same time, the Supreme Arbitration Court of the Russian Federation does not support this position. As indicated in the Ruling of the Supreme Arbitration Court of the Russian Federation of January 15, 2008 N 17818/07 in case N A40-20189 / 07-85-189, the seller's obligation to transfer documents related to the thing as a civil obligation arises if such an obligation is established by law, other legal acts or agreement. However, the Tax Code of the Russian Federation does not establish the seller's obligation to transfer the invoice; tax legislation does not regulate civil relations and does not apply to them. Therefore, the argument that the basis for the emergence of a civil obligation to transfer an invoice is the norms of the Tax Code of the Russian Federation (paragraph 3 of Article 168) is unfounded. 2. A claim for compulsion to provide an invoice Taking into account the above position of the Supreme Arbitration Court of the Russian Federation, in the absence in the contract of a direct indication of the obligation to provide an invoice, the likelihood that such a claim will be satisfied is extremely small. Moreover, the Ninth Arbitration Court of Appeal, in its Resolution of 09.03.2011 No. 09AP-34383/2010-GK, expressed itself more radically, indicating that the claimant's claim for the obligation to issue and provide an invoice, in fact, asks to compel the defendant to fulfillment of the public law obligation to pay tax, in connection with which, the declared claim does not relate to the methods of protection or restoration of violated or contested civil rights established by the current legislation. 3. Recovery of the paid amount of VAT as unjust enrichment We believe that in this case, the way to protect the interests of the buying organization will be to collect the VAT amount paid by the buyer as an unjust enrichment. The Supreme Arbitration Court of the Russian Federation in its Resolution of 09.04.2009 No. 16318/08 expressed its position on the collection of VAT amounts as unjust enrichment under service contracts. As pointed out by the Supreme Arbitration Court of the Russian Federation, since the legislation does not provide for special rules on the return of overpaid amounts under a service agreement, and from the essence of the relations in question the impossibility of applying the rules on unjust enrichment does not follow, it is possible to apply the provisions of Article 1102 of the Civil Code of the Russian Federation on the obligation of the acquirer to return the victim to the disputed legal relationship. acquired or saved property (unjust enrichment). Consequently, the amount of value added tax was calculated by the respondent and paid by the plaintiff at a rate not provided for by law, is excessively (erroneously) paid, and therefore is subject to refund. The courts satisfy claims for the recovery of the amounts of VAT paid as unjust enrichment on various grounds: if the operation itself is not subject to VAT (Resolution of the FAS SZO dated November 22, 2010 in case No. A56-52489 / 2008), if the tax rate is applied, not provided by law (Resolution of the FAS SZO dated 01.02.2010 in case No. A56-6340 / 2008). In this case, an individual (car owner) who is not an individual entrepreneur is not recognized as a VAT payer (Article 143 of the Tax Code of the Russian Federation). Therefore, when an organization sells property belonging to such a person, VAT is not charged on the cost of the latter. But you should pay attention to the following. In these examples of judicial practice, as in the situation under consideration, the seller assessed and presented the amount of VAT for payment to the buyer without statutory grounds (applied an inappropriate rate, charged VAT on transactions that were not subject to VAT). Thus, if the amount of VAT is calculated and presented for payment in accordance with the current legislation, then it is impossible to collect it as unjust enrichment on the sole reason that the seller has not presented an invoice. In this regard, given the above position of the judicial authorities on the impossibility of refusing to perform the contract or forcing the seller to submit an invoice based on the norms of the Tax Code of the Russian Federation, the obligation to provide an invoice and responsibility for failure to fulfill this obligation should be separately prescribed in the contract, including the possibility of refusal to fulfill the contract. Nina Kutsova - lawyer in the commercial practice of Rightmark group (St. Petersburg)Why courts refuse to compel counterparties to issue an invoice. How to formulate a contract in order to receive an invoice from a counterparty. What documents can replace the invoice.
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The regulatory legal acts governing the procedure for issuing and issuing invoices are the Tax Code of the Russian Federation and "On the Forms and Rules for Completing (Maintaining) Documents Used in Calculating Value Added Tax" (hereinafter - Resolution No. 1137).
When selling goods (works, services), transferring property rights, as well as when receiving amounts of payment, partial payment for upcoming deliveries of goods (performance of work, rendering of services), transfer of property rights, corresponding invoices are issued (). These documents are issued no later than 5 calendar days from the date of shipment of goods (performance of work, provision of services), transfer of property rights or from the date of receipt of payment amounts, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights. Thus, the seller has 5 days to issue the corresponding invoice to the buyer.
The invoice form, as well as the filling rules were approved by Decree No. 1137.
At the same time, neither the Tax Code of the Russian Federation, nor Resolution No. 1137 provide for a mechanism by which the buyer has the right to require the seller to issue an invoice.
Thus, if the counterparty fails to issue an invoice, the only way to oblige the counterparty to fulfill its obligations is to go to court to protect their violated rights. Judicial practice on this issue is controversial.
In some judicial acts, the courts indicate that the buyer has the right to present a claim against the counterparty to provide an invoice. This approach is based, first of all, on the fact that the requirement is aimed at suppressing violations of civil rights related to the execution of the contract.
For example, the court satisfied the company's demands on the obligation of the counterparty to issue an invoice. The decision of the court of first instance was upheld by the higher courts ( Resolution of the Federal Antimonopoly Service of the Moscow District of 10.02.2012 in case No. A40-24857 / 11-62-213). The judges applied the provisions of Art. 12, 309-310 of the Civil Code of the Russian Federation and came to the conclusion that there were grounds for considering the claim as a claim declared within the framework of civil obligations. The buyer was issued an invoice for the real estate objects sold, in which no VAT was indicated in the purchase price. The court indicated that this circumstance, in essence, does not reflect reliable information about the contract price agreed by the parties and is actually aimed at artificially inflating the value of the real estate in favor of the seller. The possibility of presenting claims for the provision of an invoice, as a requirement aimed at suppressing violations of civil rights related to the execution of the contract, is confirmed by judicial practice ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 30, 2004 No. 101/04). In this resolution, the Supreme Arbitration Court of the Russian Federation indicated that the interested person has the right to apply to the arbitration court for the protection of his violated or disputed rights and legitimate interests in the manner established by the Arbitration Procedure Code of the Russian Federation (). The arbitration court has jurisdiction over cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities ().
The dispute regarding the committee's obligation to issue an invoice for the apartment transferred to the plaintiff, since such an obligation is provided for by the contract, is related to the contract of the parties and arose in connection with the implementation of economic activities.
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Some courts refuse to apply the norms of the Civil Code of the Russian Federation to tax relations
There is also an opposite judicial practice, according to which the methods of protecting rights established by civil law are inapplicable to tax legal relations. Therefore, the arbitral tribunals sometimes refuse the buyer who requires the seller to issue an invoice.
For example, the court ruled unlawful the company's demand to oblige the counterparty to issue him an invoice ( Resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of September 24, 2008 in case No. A11-11888 / 2007-K1-9 / 605-40). As a reason for refusal, the court indicated that the norms of the Tax Code of the Russian Federation do not establish the seller's obligation to transfer the invoice, and tax legislation does not regulate civil law relations and does not apply to them. An invoice is not a document related to the goods (works) and is subject to transfer to the buyer in pursuance of the terms of the contract.
In another case, the company also went to court demanding to oblige the counterparty to issue an invoice (). The court refused, referring to the fact that civil law does not apply to property relations based on administrative or other power subordination of one party to the other, including tax ones ().
Another example, when the court refused to oblige the counterparty to issue an invoice, but referred to somewhat different grounds (decision of the Moscow Arbitration Court of June 14, 2011 in case No. A40-12488 / 11-105-114). The court indicated that the methods of protecting rights established by civil law () are not applicable to tax legal relations. The court also referred to the Civil Code of the Russian Federation, according to which the basis for the emergence of obligations is the circumstances when one person (the debtor) is obliged to perform a certain action in favor of another person (the creditor) or refrain from a certain action, and the creditor has the right to demand from the debtor to fulfill the obligations. Obligations arise from the contract, as a result of causing harm and other grounds specified in the Civil Code of the Russian Federation. Tax legislation does not give the buyer the right to file a claim for the obligation to issue invoices, force the seller to show the buyer VAT and thereby receive a tax benefit resulting from the offset of issued and paid VAT.
Thus, when the company applies to the court with a statement about the obligation of the counterparty to issue an invoice, the courts often refuse to satisfy the requirements. As the grounds, there are the conclusions of the court that the methods of protection of rights established by civil law do not apply to tax legal relations. The courts also point to the impossibility of applying civil law to property relations based on administrative or other power subordination of one party to the other, including tax and other financial and administrative legal relations (). At the same time, a taxpayer who has conditions for invoicing in the contract with the counterparty is more likely to rely on the satisfaction of his claims.
In order to avoid unpleasant consequences associated with the non-execution (incorrect execution) of invoices, the contract with the counterparty must include the conditions for the seller's obligation to issue invoices in accordance with the current legislation, as well as provide for liability for violation of these terms of the contract. In addition, the fact of going to court, even in the event of a refusal to satisfy the stated requirements on the obligation of the counterparty to issue an invoice, in the future, when applying to the tax authorities for receiving deductions for value added tax without an invoice, will be an additional positive argument in the benefit of the taxpayer.
Payment for goods can be linked to the moment of invoicing
The issue of paying VAT in a situation where the counterparty did not issue an invoice is also closely related to the issue of payment for the goods received. In general, the buyer is obliged to pay for the goods immediately before or after the seller has transferred the goods to him, unless otherwise provided by the contract of sale and does not follow from the essence of the obligation (). Therefore, the position that the seller's failure to submit an invoice does not exempt the buyer from paying for the goods seems to be quite reasonable. Judicial practice also follows this path.
It will not be necessary to keep a log of invoices
From January 1, 2015 from the wording of paragraph 3 th. 169 of the Tax Code of the Russian Federation, the mention of the taxpayer's obligation to keep a register of received and issued invoices will be excluded. Corresponding changes are provided for in paragraphs. "A" clause 4 of Art. 1, part 2 of Art. 3 of the Federal Law of 20.04.2014 No. 81-FZ.
Practice. The two companies entered into an oxygen supply agreement. The supplier delivered the goods, but did not receive payment. The seller, in turn, referred to the fact that the supplier did not issue the necessary invoices, so the obligation to pay did not come. The supplier went to court. The courts applied the provisions of Art. 330 of the Civil Code of the Russian Federation, as well as p. 16 Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation of 10/22/1997 No. 18 "On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the supply contract" and exacted a penalty from the buyer. At the same time, the courts indicated that the basis for payment for the delivered goods is the fact of proper delivery of the goods and its acceptance by the defendant without comment, which follows from the case materials. Failure to issue invoices cannot be a reason for releasing the defendant from the fulfillment of his obligation to pay for the goods ( Resolution of the Federal Antimonopoly Service of the West Siberian District of 03.19.2014 in case No. A81-784 / 2013).
In another situation, the parties entered into a supply agreement and provided that the cost of the goods (consignment of goods) is paid to the supplier no later than 60 days from the date of delivery of the goods, but not earlier than 5 working days from the moment the buyer receives the invoice from the supplier. The supplier issued invoices, but the buyer left them unpaid and the supplier went to court. The courts considered that the settlement clause stipulated by the supply contract is not a condition for the fulfillment of the obligation, since the obligation to pay for the goods arises from the moment of its delivery. Failure to issue an invoice by the plaintiff does not relieve the defendant from fulfilling the obligation to pay for the delivered goods. Based on the literal interpretation of the terms of the contract, the goods must be paid no later than 60 days from the date of delivery of the goods. Thus, the courts concluded that the plaintiff's claims to recover the principal amount from the defendant were legitimate. As a result, the court satisfied them ( Resolution of the Federal Antimonopoly Service of the Volga District of 15.08.2013 in case No. A06-8025 / 2012).
However, in practice, there is also the opposite position, according to which the buyer may not pay for the goods if the seller has not issued an invoice. This is possible if the contract specifically provided for the seller's obligation to issue an invoice. The parties in the supply agreement provided that the final payment for the goods delivered by the supplier to the buyer is made no later than 45 working days from the date of delivery and the supplier submits the documents listed in section 2 of the agreement. These documents included invoices. The arbitral tribunals referred to the principle of freedom of contract and indicated that the parties made the date of payment for the goods dependent both on the date of delivery of the goods and the provision by the plaintiff to the defendant of documents relating to the delivery, including invoices. This payment procedure does not contradict the current legislation. Once the buyer paid for the goods within 45 working days from the date of receipt of invoices, then there is no delay in payment ( Resolution of the Federal Antimonopoly Service of the West Siberian District of 17.09.2012 in case No. A70-317 / 2012).
The Ministry of Finance believes that the invoice is a document related to the goods
An invoice is a document serving as the basis for the acceptance by the buyer of the goods (works, services) presented by the seller, property rights (including a commission agent, an agent who sells goods (works, services), property rights on their own behalf, tax deductible in the order provided for in Chapter 21 of the Tax Code of the Russian Federation (Article 169 of the Tax Code of the Russian Federation) .Invoices drawn up and issued in violation of the procedure established by clauses 5 and 6 of Article 169 of the Tax Code of the Russian Federation are not grounds for accepting the amounts of tax presented to the buyer by the seller for deduction or compensation (clause 2 of article 169 of the Tax Code of the Russian Federation). Failure to comply with the requirements for an invoice not provided for in clauses 5 and 6 of article 169 of the Tax Code of the Russian Federation cannot be a reason for refusing to deduct the amount of tax presented Thus, in clause 5 of article 169 of the Tax Code of the Russian Federation, it is provided that the invoice must indicate, in particular, the serial number and date of issuance of the invoice, the name and address of the consignor and consignee. It is intended to transfer to the buyer the accessories or documents related to the goods, which he must transfer in accordance with the law, other legal acts or the sales contract (cl. 2 tbsp. 456 of the Civil Code of the Russian Federation), the buyer has the right to assign him a reasonable time for their transfer (Article 464 of the Civil Code of the Russian Federation).
In the event that accessories or documents related to the goods have not been transferred by the seller within the specified period, the buyer has the right to refuse the goods, unless otherwise provided by the contract. The Ministry of Finance believes that the invoice refers to just such documents.
Thus, the buyer's demand for the seller to provide him with a properly drawn up invoice is legitimate, since an invoice is a document relating to the goods, confirming its payment and is the basis for deducting the paid value added tax by the buyer, and such documents are necessary to transfer to the buyer in the proper form.
The legality of such conclusions is also confirmed by the established arbitration practice. For example, the court indicated that the invoice is a document to be transferred by the buyer to the seller after the transfer of the goods by force of law. Failure to fulfill this obligation by the seller entails the buyer's right to demand the fulfillment of the obligation, including the establishment of a reasonable time for the transfer of the document, and for refusal to fulfill the contract if this obligation is not fulfilled (resolution of the FAS of the Volga District of 25.04.2007 No. A65-20121 / 2006).
In another case, the arbitral tribunal also upheld the buyer's failure to pay for the goods before the original invoice was submitted. In the agreement, the parties tied the obligation to pay exactly from the moment the documents were submitted, and when the seller did not receive payment, he went to court with a demand to collect the amount of the debt. The courts sided with the buyer ( Resolution of the Federal Antimonopoly Service of the Moscow District of 12.03.2010 in case No. A40-31216 / 09-151-132). Thus, in the text of the contract, it is better to explicitly provide for the seller's obligation to issue an invoice, as well as link the moment of payment for the goods with the issuance of the specified document.
You can get a VAT deduction without an invoice from the counterparty
If it was not possible to obtain an invoice from the counterparty, the taxpayer has the opportunity to obtain the right to a deduction.
If there is no invoice, then when applying to the tax authorities for VAT refunds, the application of the tax deduction will most likely be refused. The reason for refusal is usually the failure to comply with the rule stipulated by the Tax Code of the Russian Federation on the possibility of obtaining a tax deduction only on the basis of an invoice issued by the seller when a taxpayer purchases goods (works, services), property rights.
However, according to the established judicial practice, it is still possible to receive tax deductions for VAT even in the absence of an invoice on the basis of other documents.
In addition to an invoice, payment orders, a certificate of the cost of work performed and costs, a consignment note, etc. can act as other documents confirming the payment, amount, VAT rate.
In general, the position of the Constitutional Court of the Russian Federation and the established arbitration practice indicate that VAT refunds are possible even in the absence of an invoice.
For example, in one of the cases the company claimed the amount of VAT to be refunded. The tax authority refused to apply the tax deduction and indicated that the taxpayer did not have an invoice. The court found such a decision by the tax authorities unlawful ( Resolution of the Federal Antimonopoly Service of the Moscow District of 12.11.2012 in case No. A40-38882 / 12-20-201). He pointed out that the society took all actions, both judicial and non-judicial, to obtain the invoice. The refusal of society to apply deductions due to the lack of an invoice is contrary to the law, is discriminatory and infringes on the legal rights of the taxpayer. The court referred to the provisions of Art. Art. , The Tax Code of the Russian Federation, he established that the conditions for the application of the tax deduction by the company were met: the cost of the property right was paid, the building was registered, acquired for carrying out operations recognized as an object of taxation in accordance with the Tax Code of the Russian Federation.
The court also concluded that the presence of an invoice provides, during a tax audit, the ability to identify the seller, buyer of goods (works, services), property rights, their name, value, and the amount of tax presented to the buyer. Since the tax authority had the information necessary for tax control, the refusal to apply deductions on the grounds of the absence of an invoice is contrary to the law. As other documents confirming the right to a tax deduction, the company submitted to the tax authority a payment order, a letter to clarify the purpose of payment in terms of VAT to the payment order, an act of acceptance and transfer (OS-1a), an accounting card for fixed assets, etc.
Taking into account the above judicial practice, the taxpayer will most likely have to defend his right to receive a tax deduction for VAT in the event that the counterparty does not issue an invoice in court.
In order for such litigation to have a positive litigation perspective, the following measures can be recommended to a taxpayer-buyer claiming a tax deduction.
Firstly, you must comply with all the other conditions necessary for the presentation of the right to receive a tax deduction, provided for in Art. Art. , Tax Code of the Russian Federation, namely, goods (works, services), property rights must be registered, purchased for the implementation of transactions recognized as an object of taxation in accordance with Ch. 21 of the Tax Code of the Russian Federation.
Secondly, it will not be superfluous for the taxpayer to have confirmation of the appeal to the counterparty with the requirement to issue an invoice. It should be noted that the court takes into account all actions, both judicial and extrajudicial (sending claims, letters), carried out by the taxpayer in order to obtain an invoice from the counterparty.
Thirdly, in confirmation of the right to receive a tax deduction, other primary documents must be submitted to the tax authority, on the basis of which it is possible to identify the seller, buyer of goods (works, services), property rights, their name, cost, rate, tax amount.
Electronic newspaper
From October 1, 2014, it is possible to refuse invoices for special modes - the supplier has the right not to draw up invoices for buyers who are exempt from VAT. At the same time, in the sales book, you can register the primary - a delivery note for shipment or acceptance certificates (letter dated 09.10.14 No. 03-07-11 / 50894). But it is not clear how to declare deductions to the supplier and what to register in the purchase book if he issued a transaction without an invoice, and then provided a discount, returned the advance, or the buyer refused the goods. We dealt with everything about the refusal of invoices in special modes together with the specialists of the Federal Tax Service.
Situation number 1
The buyer returned the goods on a simplified basis
What to register: invoice and statement of return
As a general rule, if the goods are returned by buyers on a simplified basis, the supplier claims deductions based on their own invoices. When the entire batch is returned, it registers the primary invoice in the purchase book. When returning part of the goods - corrective (letter dated 05/14/13 No. ED-4-3 / [email protected]). But from October 1, these papers can be omitted.
As we found out at the Federal Tax Service, the deduction can be claimed on the basis of the primary. If the buyer has returned all of the merchandise, the supplier records its shipping invoice in the ledger. And if a part of the batch, then the basis for the deduction will be the buyer's invoice or return statement. The supplier has the right to register the document in the purchase book in the same columns as the correction invoice. That is, in column 5 - write down the number and date of the primary, and in columns 15 and 16 - the difference in value and the amount of VAT.
Situation number 2
The supplier provided a discount to the company on a special mode
What to register: agreement or notice of price changes
The supplier has the right to claim deductions if it provides the buyer with a discount that reduces the cost of previously shipped goods (clause 2.1 of article 154 of the Tax Code of the Russian Federation). As a general rule, the basis for the deduction is the supplier's correction invoice. But if the buyer is on a simplified system, and the company has refused to draw up invoices, then there is nothing to issue a corrective one. The experts of the Federal Tax Service interviewed by us believe that the deduction can be claimed on the basis of a price change agreement. The same document must be registered in the purchase book: in column 5 - write down the number and date, and in columns 15 and 16 - the amount of the discount and VAT.
Situation number 3
The supplier returned the prepayment
Upon receipt of an advance payment from the buyer, the company draws up an advance invoice and pays VAT. And if the parties terminate the contract and the supplier returns the money, then he claims VAT for deduction on the basis of his prepayment invoice (clause 22 of Appendix 4 to the Decree of the Government of the Russian Federation of December 26, 11 No. 1137).
By agreement with the buyer, the supplier has the right not to draw up any invoices - both shipping and advance invoices. Then, when returning money, you can make entries in the purchase book on the basis of a payment for a refund or a consumable if the money is given in cash. In column 3, you must write down the number and date of the document, and in columns 15 and 16 - the amount of the refunded advance and VAT.
What to register in the books if there are no invoices
In the sales book:
Upon shipment - a waybill for shipment;
When performing work (rendering services) - an act of work performed (services rendered);
Upon receipt of an advance payment - the buyer's payment.
In the shopping book:
When returning the entire consignment of goods - a shipping invoice;
When returning a part of the goods - the buyer's invoice or return certificate;
When providing discounts - agreement on price change;
When returning an advance - a payment or consumable for a refund.
For several years, our service provider has issued us invoices with errors in the details, namely, indicated the wrong legal address and PPC. I sent a letter to the supplier asking them to make corrections to invoices for a certain period. We were refused. Does the supplier have any responsibility for refusing our request to correct invoices?
No, the law does not provide for such liability for the supplier. The most effective way to force a supplier to provide properly executed documents on time is to link his obligation to provide them with the buyer's obligation to pay for services. Such a condition can be fixed in an additional agreement to the current service agreement.
The rationale for this position is given below in the materials of the Glavbuh System
1. Article: How to set up work in order to receive documents from counterparties on time and not recalculate taxes
Ekaterina Savina, expert of the magazine "Glavbukh"
First advice: write in the contract how you will exchange documents with the counterparty
Suppose you have a counterparty with whom you have been working for a long time, but often receive documents from him with a delay. Another situation: you are just going to conclude an agreement with a partner for a long time and assume that you will have to frequently exchange papers with him.
In such cases, we recommend fixing special conditions either in a new agreement or in an additional agreement to the existing one. Namely, write down in what ways you and your partner will exchange papers, at whose expense the shipment will take place. *
Let's say the counterparty is in the same city as you. Then establish that the partner will have to transfer documents by courier, and indicate how long it will take. Or, perhaps, you will begin to send for papers of your representative. In this case, do not forget about the timing too.
And if the partner is in another city? Write down in the agreement the condition that the parties will exchange papers by express mail. And since its services are more expensive than regular mail, specify in the agreement at whose expense the documents will be sent.
Of course, this is only possible if the counterparty agrees to prescribe such a condition in the contract. That is, when both parties to the agreement want to put things in order in the document flow.
Another tip in case you exchange a large number of documents with a counterparty. In the agreement, it will be useful to fix the condition that at the end of the month the parties send each other a list of papers received for signature and sent. *
This way you will be able to check which documents you have not yet received from those sent by the partner. We have provided a sample agreement with the document exchange clause below.
Advice three: send a letter to the director of the counterparty with the requirement to provide the originals of the documents
A conversation with the counterparty's accounting department does not always yield results. If there are still no documents, then it makes sense to write a letter addressed to the partner's director (we have given a sample below).
In the letter, ask for the documents as soon as possible. And explain to the counterparty what your company is at risk due to the fact that he is delaying documents.
Such a letter will also help if you have reflected transactions on the basis of scanned copies, and tax inspectors have come to you with a check. Only here you should hurry up and, if possible, send the letter immediately in electronic form or by fax.
In order to get the originals of documents from the counterparty as soon as possible, ask the director of your company for help. A letter on his behalf or a phone call can speed up the receipt of the required primary documents and invoices.
But before sending the director to the partners, give the briefing. Explain to your boss why the originals are needed, what tax risks your company will face without counterparty documents.
It happens when you can't wait for the documents from the seller, it is easier to fill in the primary and invoices yourself instead of him. And then just give him the documents to sign.
An important detail
In exceptional cases, you can fill out the document for the supplier and give it for signature. *
Yes, it is not forbidden for the buyer to fill in the primary. Therefore, you can safely do it for the supplier (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ). And you can also issue an invoice. Just where necessary, put down the details of the seller and the shipper.
It is clear that you should use this advice in extreme cases. And even then when we are talking about two or three documents, and not about a large amount of paper. Of course, you will not be able to fill out primary documents and invoices instead of a counterparty.
The main thing to remember
1 It is better to immediately register in the contract with the counterparty the conditions on how and in what time frame you will exchange documents with him.
2 It is dangerous to recognize expenses based on only scanned copies of the primary product. In any case, ask the suppliers for the originals of the papers.
2. Article: Supplier disciplined by payment clause
Alexandra Biryukova, Partner, Head of Tax Practice, Pen & Paper Law Firm
“A supply contract has been concluded. I would like to oblige the counterparty to provide on time properly executed documents for the goods (invoice, invoice), i.e. to include in the text of the contract a clause stipulating the liability of the supplier. How best to prescribe this? .. "
Anna Petrova, Saint Petersburg
Anna, the fact is that the supplier is obliged to provide duly executed documents by virtue of regulatory enactments and without additional indication in the contract.
So, an invoice must be provided no later than five days from the date of shipment of the goods (clause 3 of article 168 of the Tax Code of the Russian Federation). The consignment note is a supporting document confirming the transfer of ownership of the goods, and is the basis for writing it off from the supplier and registering it by the buyer. Late submission of the invoice and waybill or their improper execution can lead to adverse civil and tax consequences for both the buyer and the supplier.
Note that you can stipulate in the contract the supplier's liability for failure to provide (untimely provision) of documents in the form of a penalty, for example, with the following clause: “The supplier is obliged to provide the buyer with a duly executed invoice and consignment note on the day of transfer of the goods. In case of violation of the specified period, a penalty is charged in the amount of one percent of the value of the goods for each day of delay. "
But a more effective way to force the supplier to provide documents on time is to link his obligation to provide them with the buyer's obligation to pay for the goods. For example: "The buyer pays the remaining cost within three days from the date of delivery by the supplier of the goods and duly executed documents for the goods (invoice, consignment note)." Thus, until the supplier provides the accompanying documents, you have the right not to pay for the delivered goods. *
Yours faithfully,
Maria Machaikina, expert of the FSS "System Glavbuh".
The answer was approved by Alexander Rodionov,
Deputy Head of the Hotline BSS "System Glavbuh".