VAT on the sale of collateral by the bank. VAT upon receipt of a deposit
DOS
L.A. Elina,
leading expert
Security Deposit VAT
Consider the situation: the organization that leases office space received a security payment from the tenant. It is necessary to decide whether to include such a payment in the base for VAT or not. That is, whether it is necessary to pay tax to the budget from such a security payment.
It all depends on what kind of security payment was received. That is, to ensure what specific obligations this payment was transferred by the tenant.
Option 1. From the security (guarantee) payment, VAT must be calculated if the following conditions are simultaneously met i sub. 2 p. 1, p. 2 Art. 162 of the Tax Code of the Russian Federation; Letters of the Ministry of Finance dated 12/28/2018 No. 03-07-11 / 95829, dated 03/07/2018 No. 03-07-11 / 45889:
the contract by which the payment is received provides for the offset of this payment to be paid for the goods (work, services) sold by your organization;
the sale of these goods (works, services) is subject to VAT.
If this is the situation, then it is necessary to calculate the VAT on the security payment as the advance received. For example, a lease agreement may provide that a security payment is credited against the lease payment for the last month of the lease or other period. In this case, the specified payment is an analog of the advance payment for the upcoming provision of rental services.
Option 2. If the conditions specified in the first option are not met, then it is not required to calculate the VAT on the security payment.
For example, it is not necessary to charge VAT if the contract provides that the security payment can only be credited:
on account of the payment of a penalty or fines for violation of the terms of payment of the lease or other violations of the tenant;
as a compensation for the losses of the lessor.
If the lessee does not commit any violations and there is no loss to the lessor through his fault, such payment must be returned to the lessee at the end of the lease term.
Then you do not need to charge VAT on the security payment, since, as a general rule, the penalty and compensation for losses are not taxable. VAT sub. 1 p. 1 Article 146, sub. 2 p. 1 Article 162 of the Tax Code of the Russian Federation; Section 2, Art. 15 Civil Code of the Russian Federation; Letter of the Ministry of Finance of 02.22.2018 No. 03-07-11 / 11149.
Also, the security payment that the landlord received before the conclusion of the main lease agreement under the preliminary contract is not taxed (as security for the tenant's obligations to conclude the main contract). The logic is the same: receiving a security payment is not related to paying for your services.
True, such a payment in the future can be set off against a security payment under the main lease agreement (providing for its direction in payment of rental payments). Then, on the date of conclusion of the main lease, it is safest to calculate the VAT on the credited security deposit as the advance received
Date of publication: 09/28/2012 07:36 (archive)
Lombard activity is lending to citizens on the security of their belongings and their storage (Clause 1, Article 1 of the Federal Law of July 19, 2007 N 196-ФЗ "On Lombards" (hereinafter - the Law)). Lombard activity, by virtue of the direct instructions of the Law, is exclusive, since the pawnshop is forbidden to engage in any other entrepreneurial activity, except for the provision of short-term loans to citizens, storage of things, as well as the provision of consulting and information services (Clause 4, Article 2).
The main legal means of pawnshop activity can be considered loan and storage agreements.
A pawnshop loan agreement is an agreement under which a pawnshop (lender) transfers on a repayable and reimbursable basis for a period of not more than one year a loan to a citizen (individual) - the borrower, and the borrower, who is also the pledgor, transfers to the pawnshop the property that is the subject of the pledge (p 1 Art. 7 of the Law). A loan agreement is executed in writing, but is considered concluded only from the moment of transferring the loan amount to the borrower and transferring the pledged thing to the pawnshop (clause 2 of article 7 of the Law).
A pawnshop loan agreement is formalized by issuing a pledge ticket to the borrower by the pawnshop, while the other (second) copy of the pledge ticket remains at the pawnshop. The security ticket must contain the required information (name of the pledged thing, the amount of its assessment, the amount of the loan granted, the interest rate on the loan, the term for the loan) (paragraph 3 of article 7 of the Law).
The amount of the loan granted and the interest rate on the loan together form the amount of the borrower's obligations to the pawnshop (Article 8 of the Law). Interest on the use of a loan is calculated for the period of its actual use in accordance with the interest rate on the loan established by the loan agreement, while the period of actual use of the loan is the period from the date of the loan to the date of its repayment and payment of interest on the use of the loan or the sale of the pledged thing by the pawnshop (clause 2 of article 4 of the Law).
The second contract, which determines the content of pawnshop activity, is a contract for storage of things in a pawnshop. A storage agreement is an agreement under which a citizen (individual) - depositor gives a pawnshop for storage the thing belonging to him, and the pawnshop agrees to carry out storage of the thing accepted on a fee basis (paragraph 1 of article 9 of the Law).
The security ticket and the security receipt must contain information that the borrower (depositor) in the event of the sale of an unclaimed item has the right to receive from the pawnshop the amount received from the sale of the unclaimed item, or the amount of its assessment (the largest of the indicated amounts), net of expenses to its storage (Clause 7, Clause 7, Clause 5, Clause 9 of the Law). It should be noted that the security ticket and the security receipt are strict reporting forms, the form of which is approved in the manner established by the Government of the Russian Federation.
Only a legal entity can be a pawnshop. An individual entrepreneur is not entitled to carry out this activity.
Pawnshops are payers within the framework of the general taxation system, since on the basis of paragraphs 7 p. 3 Art. 346.12 of the Tax Code does not have the right to apply a simplified tax system.
In addition, the sale of unclaimed property owned by borrowers does not fall under UTII, since the pawnshop is not the owner of this property (Article 346.27 of the Tax Code of the Russian Federation).
The funds received by the pawnshop after the sale of the unclaimed item are funds received in repayment of the borrower's obligation to repay the loan and payment of interest, or as payment by the depositor of remuneration for storing the item.
Income in the form of funds or other property that is received under loan or loan agreements (other similar funds or other property, regardless of the form of borrowing, including securities for debt obligations), as well as funds or other property that are received to repay such borrowings are not recognized as income subject to taxation by corporate profit tax (paragraph 10, paragraph 1, article 251 of the Tax Code of the Russian Federation).
At the same time, the money received by the pawnshop after the sale of the unclaimed thing in the part allocated for the payment of interest of the borrower under the loan agreement relates to non-operating income and is taxed on the profit of organizations (clause 6 of article 250 of the Tax Code of the Russian Federation).
The money converted into pawnshop income on the basis of paragraph 5 of Article 13 of the Law is taken into account when calculating the corporate income tax as part of non-operating income on the basis of paragraph 18 of Article 250 of the Tax Code of the Russian Federation.
In this regard, and also due to the fact that according to paragraph 4 of Article 2 of the Law, pawnshops are forbidden to engage in any other entrepreneurial activity, except for providing short-term loans to citizens, storing things, as well as providing consulting and information services, pawnshop operations for the implementation unclaimed things are not subject to taxation with a single tax on imputed income for certain types of activities (letter of the Ministry of Finance of Russia dated 04.23.2012 No. 03-11-09 / 30).
The Federal Law "On Amendments to Parts One and Two of the Tax Code of the Russian Federation and Separate Legislative Acts of the Russian Federation" dated June 25, 2012 N 94-ФЗ amended according to which the concept of "retail trade" in order to pay UTII (para. 12 Article 346.27 of the Tax Code of the Russian Federation) the sale of unclaimed items in pawnshops is included. Thus, from 01.01.2013 UTII can be used to sell unclaimed items in pawnshops.
The pawnshop gives loans to individuals solely on the security of property. The income from this activity is the accrued interest at the date of the contract (reporting date) with the accrual method and with the receipt of funds using the cash method.
A necessary item of pawnshop expenses is insurance of things accepted as collateral in the full amount of their assessment (Clause 3, Article 358 of the Civil Code of the Russian Federation).
Things transferred as collateral do not pass into the ownership of the pawnshop. If the borrower does not fulfill its obligations under the loan agreement, the pawnshop has the right to foreclose on the pledged (unclaimed) thing. After the sale of such a thing, the requirements of the pawnshop to the borrower are repaid, even if the amount earned from the sale is insufficient to fully satisfy them. But it may happen that the amount of revenue is higher than the amount of the borrower's obligations or the amount of the valuation of the thing. In this case, the pawnshop is obliged to return part of the money to the citizen.
Quite often, a situation occurs when a citizen was unable to redeem an item that was put on bail within the time period established by the contract.
The amount remaining after the sale of the subject of the pledge and the satisfaction of the requirements of the pawnshop remains the accounts payable of the institution until the moment it is returned to the pledger. If it is not returned to the latter, after the expiration of the limitation period, the pawnshop has the right to take into account this debt as part of its non-operating income. The total limitation period established by Art. 196 of the Civil Code, is three years.
In this case, a situation is possible when the funds from the sale of the subject of the pledge are not enough to pay off the citizen's debt to the pawnshop. In accordance with Art. 358 of the Civil Code of the Russian Federation, after the sale of the mortgaged property at public auction, the pawnshop claims against the mortgagor are paid off, even if the proceeds are not sufficient to fully satisfy them. Thus, from the moment the collateral is sold, the debt to the pawnshop is considered to be paid off. The resulting loss cannot be recognized for tax purposes, because according to paragraph 49 of Art. 270 and Art. 252 of the Tax Code is not an expense incurred to carry out activities that are aimed at generating income.
Although pawnshops are entitled to provide storage services, in practice these services are not provided.
As a result, most pawnshops receive only interest income on cash loans that are not subject to VAT (subparagraph 15, paragraph 3, article 149 of the Tax Code of the Russian Federation). Although they do not pay VAT, they submit zero tax returns on a common basis. True, income exempted from taxation, and the amount of VAT not deductible, should be reflected in section. 7 VAT tax return.
At the same time, if the pawnshop charges a fee for storing collateral (for example, when a loan is delayed), then these amounts are subject to VAT. Then the accountant will have to keep separate records of tax amounts for taxable and non-taxable operations (Clause 4, Article 170 of the Tax Code of the Russian Federation).
Information on form 2-NDFL on the income of individuals from the sale of pledged items is not provided by pawnshops.
Property tax and transport tax are calculated and paid by pawnshops in the presence of objects of taxation.
According to paragraph 2 of Article 288 of the Tax Code of the Russian Federation, if a taxpayer has several separate units in the territory of one constituent entity of the Russian Federation, then profit distribution for each of these units may not be made. The amount of tax payable to the budget of this constituent entity of the Russian Federation, in this case, is determined on the basis of the share of profit calculated from the totality of indicators of separate divisions located on the territory of the constituent entity of the Russian Federation. In this case, the taxpayer independently chooses the responsible separate division through which tax is paid to the budget of this constituent entity of the Russian Federation, notifying the decision taken by December 31 of the year preceding the tax period, the tax authorities in which the taxpayer is registered with the tax authority at the location of his separate divisions .
Recommended standard forms of Notification No. 1 and Notification No. 2 are given, respectively, in Appendix No. 1 and in Appendix No. 2 to the letter of the Federal Tax Service of Russia dated December 30, 2008 No. ШС-6-3 / 986 “On notifications on payment of corporate income tax in budgets of constituent entities of the Russian Federation. ”
The above information will remind taxpayers - pawnshops of the need for strict compliance with tax laws.
"Accounting. Taxes. Law", 2006, N 17
Companies working with returnable packaging now need to be especially careful in drafting contracts. Otherwise, difficulties may arise in determining the period for VAT payment in case of non-return of collateral containers.
The agreement eliminates disputes
To ensure the return of containers and to avoid financial losses, sellers establish its collateral value in the contract. Namely, the amount that the buyer must pay for the container, in addition to the price of the goods. If he does not return the container, this amount remains with the seller and compensates his expenses. And the ownership of the container passes to the buyer, that is, implementation occurs.
In this regard, the question arises: when to pay VAT on this implementation? The fact is that since January 1, 2006, the moment of determining the tax base for VAT is not connected with the fact of implementation. The tax base for VAT should be calculated on the earliest of the dates: shipment or payment against future deliveries (paragraph 4 of article 166, paragraph 1 of article 167 of the Tax Code). Since the Code does not spell out what is meant by shipment, the specialists of the Ministry of Finance of Russia consider the day of shipment to be the day of transfer of the goods, regardless of whether it coincides with the day of sale or not<*>. And now there is no definition of payment for VAT purposes in the Code - paragraph 2 of Art. 167 of the Tax Code.
<*> See "Question of the week" in "UNP" N 8, p. 8.
Collateral prices are not included in the tax base for VAT (paragraph 7 of article 154 of the Tax Code). They need to pay tax when the ownership of the container passes to the buyer (paragraph 1 of article 146, article 39 of the Tax Code). But so that the tax authorities do not calculate VAT on the day of receipt of the pledge or shipment of containers, it should be clear from the contract with the buyer that it is the returnable packaging that is transferred, and not the goods. In addition, we recommend that you specify in the contract that the container is to be returned to the supplier within clearly specified terms. It will not be superfluous to indicate also a method of returning containers. More precisely, what exactly should the buyer do in order for the container to be considered returned.
Entrance tax included
In fact, the container will be used for VAT-free operations. Therefore, the input tax cannot be offset. This is also believed in the indirect tax administration department of the Federal Tax Service of Russia, where the "UNP" correspondent addressed. Such an opinion has developed among regional tax specialists (for example, Letter of the Ministry of Taxes and Duties of Russia for the city of Moscow dated April 19, 2004 No. 24-11 / 26611).
Example. The manufacturer sold the products in returnable containers. A collateral value of 2,000 rubles was received for it. The purchase price is 1356 rubles. plus VAT paid upon purchase of containers - 244 rubles. According to the terms of the contract, in case of non-return of the container within two weeks, ownership of it passes to the buyer. The buyer did not return the container in a timely manner.
In accounting postings made:
Debit 10-4 Credit 60 2000 rub.
- the container at the bail price has been taken into account;
Debit 60 Credit 91-1 400 rub.
- reflected the difference between the cost of packaging and the collateral price;
Debit 76 Credit 10-4<**>
2000 rub.
- reflects the cost of containers under the goods at a bail price;
Debit 51 Credit 62 2000 rub.
- the collateral value of the container is received.<**> Such a posting is provided for in paragraphs 176, 180 of the Methodological Instructions for the Accounting of Inventories, approved by Order of the Ministry of Finance of Russia dated December 28, 2001 N 119н. But the organization may provide for another way of accounting: to reflect the collateral value on account 76, and to show the movement of containers with internal records on the container account (for more details see "UNP" N 16, 2005, p. 11).
Security Price + VAT
Now consider what happens when packaging is sold. On the date of sale, the seller charges VAT. How to calculate the amount of tax - accrue VAT on the collateral value or calculate "including"? In the indirect tax department of the Ministry of Finance of Russia, we received the following explanation: "The tax must be charged on the collateral value and this is why. Collateral prices are not included in the tax base for VAT. If the buyer does not return the container, the seller increases the tax base by the amount of the deposit. That is, the tax is levied in excess of the amount received. But the amount of input VAT, taken into account in the cost of packaging, can be restored. The deduction is made if there is an invoice in the period in which the sale occurred. "
We believe that it is possible to act easier, but the result will be the same. According to paragraph 3 of Art. 154 of the Tax Code of the Russian Federation, the tax base for the sale of property recorded with VAT is determined as the difference between the price (including VAT) of the property being sold and its value. In this case, the tax amount is determined by the calculation method.
Let's continue with an example:
Debit 62 Credit 91-1
2000 rub.
- reflected the income from the sale of containers;
Debit 91-3 Credit 68
116 rub
((((2000 rubles. X 118%) - 1600 rubles.) / 118% x 18%) - VAT is charged;
Debit 91-2 Credit 76
2000 rub.
- the collateral value of the container has been written off.
If the accountant had acted as explained by the specialists of the Ministry of Finance, then the amount of VAT that would have to be paid to the budget would be the same - 116 rubles. Accrued tax would be 360 \u200b\u200brubles. (2000 rub. X 18%), tax deductible - 244 rub.
In tax accounting for the sale of containers, the amount of the pledge is included in the proceeds of sale (Article 249 of the Tax Code of the Russian Federation). The purchase price of the container is written off as expenses (subparagraph 2, paragraph 1, article 268 of the Tax Code of the Russian Federation). In our example, taxable profit is 644 rubles. (2000 - 1356).
V. Fedotov
O. Meshcheryakova
SECURITY IMPLEMENTATION: PRICE WITH VAT OR WITHOUT
Y. MIRONENKO
When collecting foreclosure on mortgaged property, recoverers and the Federal Service of Bailiffs often have the question of how to calculate the value added tax when realizing the subject of a pledge from public auction. Often, in court decisions on foreclosure on property when establishing the initial sale price of sales, the procedure for calculating VAT is not indicated, which in some cases makes it impossible to enforce a judicial act.
In accordance with paragraph 4 of Art. 161 of the Tax Code of the Russian Federation VAT is payable when selling property sold by the court in the territory of the Russian Federation. In this case, tax agents are the bodies, organizations or individual entrepreneurs authorized to sell the said property.
When selling the property of a debtor that is not the subject of a pledge at public auction, the cost is estimated in accordance with the provisions of Federal Law of 02.10.2007 N 229-ФЗ "On Enforcement Proceedings" by a bailiff or an independent appraiser, indicating, if necessary, the size of the subject paying tax to the budget. When selling mortgaged property from tenders, the initial selling price in accordance with Art. 28.1 of the Law of 05.29.1992 N 2872-1 "On the Pledge" and Art. 54 of the Federal Law of 16.07.1998 N 102-ФЗ "On Mortgage (Real Estate Mortgage)" is determined by a court decision. When determining the initial selling price, the court takes as a basis either the value of the subject of the pledge specified in the pledge agreement or the market value of the subject of the pledge as of the date of the judgment, determined by the results of an independent appraiser.
The question of the need to include VAT information in a court decision should be decided before a judicial act is enforced. In order to avoid problems with foreclosure, VAT information can be included in a pledge agreement (mortgage). It is necessary to take into account the position of the Ninth Arbitration Court of Appeal, which, in the Decree of 04.06.2010 N 09АП-11330/2010-ГК, noted that if the pledge agreement does not indicate the presence or absence of the amount of VAT in the value of the pledged property, then there is no indication of VAT in the decision court on foreclosure does not contradict the current legislation.
The FAS DO, in Decree dated 02.04.2003 N Ф03-А51 / 03-2 / 480, indicates that the bailiff in the execution of the judicial act is also not obliged to independently calculate the value added tax.
Thus, the amount of tax payable to the budget when selling the subject of a pledge can be established only by a judicial act at the request of the collector.
At the same time, FAS UO, in Decree dated 04.02.2002 N Ф09-63 / 02-ГК, came to the conclusion that the market realizable value of the property should include value added tax. By virtue of Art. 52 of the Law N 119-ФЗ the assessment of the property of the debtor is carried out by the bailiff at market prices, valid on the day of execution of the writ of execution. The sale of seized property at prices excluding VAT, as well as the transfer of property to the collector to pay off existing debt (paragraph 4 of article 54 of Law No. 119-ФЗ) at prices underestimated by VAT amount to a violation of the debtor's right to sell property at the proper price.
At the same time, the court concluded that, since Article 149 of the Tax Code of the Russian Federation establishes an exhaustive list of transactions that are exempted from value added tax, but the sale of seized property is not included in it, the bailiff was not entitled to exclude VAT from the market value of the property.
Despite the fact that in court decisions, as a rule, the initial selling price is indicated without VAT, there is a judicial practice where the issue of calculating VAT when setting the initial selling price is reflected in the judicial act. So, the Arbitration Court of the Khanty-Mansiysk Autonomous Okrug in a decision of 10.10.1999 N 1044-G / 99, the Arbitration Court of Moscow in a decision of 06.12.2005 N A40-12048 / 05-47-80 when enforcing property established the initial selling price and indicated that the price is determined without VAT. In the decisions of the Moscow Arbitration Court of June 23, 2008 No. A40-1836 / 08-42-19, dated March 13, 2008 No. A40-62324 / 07-52-563, dated March 20, 2008 No. A40-60005 / 07-52- 539 when foreclosing on pledged property, the initial selling price was determined including VAT.
There is no unequivocal opinion on how to determine the amount of VAT not established by a court decision. For example, the Federal Antimonopoly Service in the Decree of 11.12.2009 No. A57-5999 / 2009 concluded that the court is not entitled to clarify whether VAT includes the amount of the initial sale price established by the decision of the court of first instance. Having clarified that in the court decision the size of the initial sale price of the pledged property was set without VAT, the court thereby increased the initial sale price by 18% and changed the decision of the court of first instance, which is prohibited by Part 1 of Art. 179 agribusiness of the Russian Federation. From this judicial act, we can conclude that if VAT is not specified in the decision of the court of first instance, establish its size by submitting an application for clarification of the court’s decision in accordance with Art. 179 APC of the Russian Federation is impossible.
Thus, when concluding a pledge agreement with a pledger who is a VAT payer, the future pledge holder should assess in advance the need to reflect VAT when determining the value of the pledged property in the pledge agreement, and in case of foreclosure on the subject of pledge, take all measures to ensure that the issue of VAT It was reflected in the court decision on foreclosure.
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Is the security deposit subject to VAT? The pledge was accepted as security for the execution by the customer of the contract of the obligation to return the material used in the performance of work.
Answer
Transfer of property as a pledge of VAT is not taxed, because not recognized by implementation.
For details, see the materials in the rationale.
The rationale for this position is given below in the materials of the “Glavbukh System” .
1. Situation: How does the mortgagor take into account the transfer of property as collateral when calculating income tax and VAT
“When calculating income tax, transfer of property as collateral is not recognized as an expense ().
When a property is pledged, the ownership of it does not transfer to the pledge holder (Art., Civil Code of the Russian Federation). That is, the sale of goods (works, services, property rights) in this case is absent. Consequently, the organization that issued the pledge does not have a VAT object * ().
The pledger or the pledge holder (depending on who has the pledged item) must insure the pledged item (at the expense of the pledgor) and ensure its safety (unless otherwise provided by law or contract) (). For tax accounting of property insurance expenses (including those pledged), see How to reflect property insurance expenses in accounting and taxation. ”
« OSNO: performance of an obligation at the expense of a pledge
If the mortgagor has not fulfilled the obligations secured by the mortgage, the mortgagee is entitled to sell the mortgaged property. Since the mortgagor remains the owner before the sale of the mortgaged property, it is with him () that the income from the sale of the subject of the pledge occurs. The pledge holder will not have such income.
The amount of costs associated with the sale of the mortgaged property, include in other expenses (). Moreover, such expenses must meet the criteria of the Tax Code of the Russian Federation. The amount received as a reimbursement of expenses for the sale of the subject of pledge from the pledgor must be included in non-operating income ().
When the subject of the pledge is sold due to the non-fulfillment of the obligation of the pledged object of VAT, the pledge holder does not arise (with the exception of pawnshops) (,). In this case, the mortgagor is required to charge VAT * (). This is due to the fact that he retains the right of ownership of the subject of the pledge (up to the moment of its implementation) (Article, Civil Code of the Russian Federation).