Tax Code of the Russian Federation, article 264. Hospitality expenses
The list of other expenses in accordance with paragraph 1 of Art. 264 of the Tax Code of the Russian Federation is open. Accordingly, any expenses of the enterprise, provided they are connected with the production and sale of products, can be taken into account for tax purposes.
Other expenses include:
1 costs in accordance with paragraph 1 of Art. 264 of the Tax Code of the Russian Federation;
2 entertainment expenses in accordance with paragraph 2 of Art. 264 of the Tax Code of the Russian Federation;
3 expenses of the taxpayer for training and retraining of personnel in accordance with paragraph 3 of Art. 264 of the Tax Code of the Russian Federation;
In addition, when calculating corporate income tax, the following expenses should be taken into account:
a) expenses for the repair of fixed assets (Article 260 of the Tax Code of the Russian Federation);
b) development costs natural resources(Article 261 of the Tax Code of the Russian Federation);
c) expenses for Scientific research and experimental design (Art. 262 of the Tax Code of the Russian Federation);
d) expenses for compulsory and voluntary insurance property (Article 263 of the Tax Code of the Russian Federation);
At the same time certain types expenses for tax purposes are set within norms and standards.
These include:
- representative expenses (clause 3 of article 264 of the Tax Code of the Russian Federation);
- expenses for voluntary insurance of employees (clause 16 of article 255 of the Tax Code of the Russian Federation).
Non-operating expenses (Article 265 of the Tax Code of the Russian Federation)
Non-operating expenses include expenses not related to the production and sale of goods, works, services, i.e. not related to the main activity.
These include:
- expenses for the maintenance of the leased property (including depreciation);
- expenses on interest on debt obligations;
- costs of organizing the release valuable papers;
- expenses in the form of a negative exchange rate difference in the revaluation of property and claims;
- expenses of the payer applying the accrual method for the formation of reserves for doubtful debts;
- costs of maintaining the mothballed facilities and facilities;
- court costs and arbitration fees;
- expenses in the form of fines, penalties or other sanctions for violation of contractual or debt obligations, also in the form of amounts for compensation for damage caused;
- expenses for payment of bank services;
- losses of previous periods identified in reporting period;
– receivables which expired limitation period;
- losses from rejects, shortages, production downtime;
- losses from natural disasters, fires, accidents and others non-operating expenses in accordance with Art. 265 of the Tax Code of the Russian Federation.
Expenses not taken into account for profit tax purposes (Article 270 of the Tax Code of the Russian Federation)
The first group of expenses is expenses for which the source of payment is own funds enterprises (dividends, penalties, fines levied by government agencies, etc.).
The second group of expenses - expenses attributable to financial results activities of the organization, but not taken into account in taxation.
The third group of expenses - expenses that exceed the maximum level established for the corresponding group (representation, R&D, advertising, etc.).
The following expenses are not included in taxation:
a) in the form of the amounts of dividends accrued by the taxpayer and other amounts of profit after tax;
b) in the form of penalties, fines and other sanctions transferred to the budget (to state extrabudgetary funds), as well as fines and other sanctions levied government organizations that are granted the right to impose the specified sanctions by the legislation of the Russian Federation;
c) in the form of a contribution to the authorized (share) capital, a contribution to a simple partnership;
d) in the form of the amount of income tax, as well as the amount of payments for excess emissions of pollutants into the environment;
e) in the form of expenses for the acquisition and (or) creation of depreciable property (taking into account the specifics provided for in clause 1 of article 257 of the Tax Code of the Russian Federation in relation to depreciable property of its own production);
f) in the form of contributions for voluntary insurance, except for the contributions specified in Art. 255, 263 and 291 of the Tax Code of the Russian Federation;
g) in the form of contributions for non-state pension provision, except for the contributions specified in Art. 255 of the Tax Code of the Russian Federation;
i) in the form of interest accrued by the taxpayer-borrower to the creditor in excess of the amounts recognized as expenses for tax purposes in accordance with Art. 269 of the Tax Code of the Russian Federation and other expenses.
In accordance with the rules of conduct tax accounting(Article 318 of the Tax Code of the Russian Federation) the division of costs is carried out into indirect costs and direct costs.
Direct costs may include, in particular:
- material costs, determined in accordance with paragraphs. 1 and 4, clauses 1 of Art. 254 of the Tax Code of the Russian Federation;
- the cost of remuneration of personnel involved in the production of goods, performance of work, provision of services;
- the amount of a single social tax accrued on the indicated amounts of labor costs;
- the costs of compulsory pension insurance, going to finance the insurance and funded parts of the labor pension, accrued on the specified amounts of labor costs;
- the amount of accrued depreciation on fixed assets used in the production of goods, works, services.
Indirect costs include all other amounts of production and sales costs incurred by the taxpayer during the reporting (tax) period. In a similar manner, non-operating expenses are included in the expenses of the current period.
Indirect expenses also include expenses incurred by a taxpayer during previous reporting (tax) periods and formed certain groups of expenses, some of which, in accordance with the requirements of Chapter 25 of the Tax Code of the Russian Federation, are included in expenses of the current period (in particular, expenses associated with the development of natural resources, R&D costs).
Methods for recognizing income and expenses under the cash method and the accrual method (Articles 271 - 273 of the Tax Code of the Russian Federation)
In accordance with Art. 271 of the Tax Code of the Russian Federation for profit tax purposes, income and expenses are recognized on an accrual basis or on a cash method(Appendix B).
The organization has the right to determine the date of receipt of income (expense) on a cash basis, if on average for the previous four quarters the amount of proceeds from the sale of goods, works, services excluding VAT did not exceed 1 million rubles. for each quarter. In other cases, the organization is obliged to use the less profitable from the point of view of optimization tax liabilities accrual method.
Example
The organization in the previous year had the following revenue indicators: in the first quarter - 600,000 rubles, in the second quarter - 1,200,000 rubles, in the third quarter - 1,400,000 rubles, in the 4th quarter - 300,000 rubles. On average, over four quarters, revenue will be 875,000 rubles. (600000 + 1200000 + 1400000 + 300000): 4. Therefore, in the current year the organization has the right to apply the cash method.
Cash method- this is a method in which income (expenses) are recognized as such in the reporting (tax) period in which they were actually received (paid).
This definition in relation to costs is conditional, since in some cases they are associated with the presence of additional grounds. In other words, a different condition is added to the obligatory fact of payment. The procedure for applying the cash method is established by Art. 273 of the Tax Code of the Russian Federation.
Cannot determine income and expenses on a cash basis:
- companies with an average revenue for the previous four quarters of more than 1 million rubles. for each quarter;
- participants in a property trust agreement or a simple partnership agreement (clause 4 of article 273 of the Tax Code of the Russian Federation).
Accrual method- this is a method in which income (expenses) are recognized as such in the reporting (tax) period in which they occurred (to which they relate), regardless of the actual receipt (actual payment) Money or another form of payment (clause 1 of article 271 of the Tax Code of the Russian Federation).
The procedure for determining the tax base for income tax (Article 247 of the Tax Code of the Russian Federation)
The tax base for income tax is the monetary expression of taxable profit (clause 1 of article 247 of the Tax Code of the Russian Federation). Profit is the difference between the income and expenses of the organization (Article 247 of the Tax Code of the Russian Federation).
If profits are taxed at different rates, then the tax base for each group of profits is determined by the taxpayer separately. In relation to certain specific operations and groups of organizations, the tax base is determined taking into account the established features. The taxpayer shall keep separate accounting records of income (expenses) on transactions for which it is provided other than general order accounting for profit and loss (Articles 275.1, 276, 278, 279, 280, 304, 323 and 268 of the Tax Code of the Russian Federation).
When determining the tax base, the profit subject to taxation is determined on an accrual basis from the beginning of the tax period. At the same time, income and expenses related to activities that are not taxed on profit are not taken into account in the composition of income and expenses of taxpayers. Income and expenses from non-taxable activities must be accounted for separately, i.e. separate accounting should be kept.
The income and expenses of the taxpayer are recorded in cash when calculating the tax base. Income from sales received in kind (including barter transactions) are accounted for, unless otherwise specified, based on the transaction price, taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation. If income is less than expenses (that is, you have received a loss), the tax base is zero (paragraph 1, clause 8, article 274 of the Tax Code of the Russian Federation). At the same time, losses incurred by the taxpayer in tax period, are accepted for tax purposes in the manner provided for the transfer of losses to the future (Article 283 of the Tax Code of the Russian Federation).
Based on the analysis of Art. 283 of the Tax Code of the Russian Federation can be distinguished following rules carry forward of losses:
- it is allowed to take into account losses incurred by organizations in subsequent tax periods, but only when the size of the tax base is positive;
- the transfer of loss to the future is carried out within ten years following the tax period in which this loss was received;
- the total amount of the transferred loss in any reporting (tax) period is established within the entire taxable tax base without restrictions;
- a loss not carried over to the next next year can be carried forward in whole or in part to the next year out of the next nine years, subject to the first three rules;
- if the taxpayer incurred losses in more than one tax period, the transfer of such losses to the future is made in the order in which they were incurred, subject to the above rules;
- upon reorganization, the successor taxpayer has the right to reduce tax base in the manner and on the conditions provided for by the above rules, for the amount of losses incurred by the reorganized organizations prior to the reorganization.
In clause 4 of article 264 of the Tax Code of the Russian Federation it comes on the organization's expenses on advertising for the purpose of calculating income tax. This paragraph is divided into four paragraphs. In paragraph 2 it is said about the costs of advertising in the media, in paragraph 3 - about the costs of outdoor advertising, in paragraph 4 - about the costs of participation in exhibitions. According to paragraph 5 of clause 4 of article 264 of the Tax Code of the Russian Federation, the costs of the acquisition (production) of prizes awarded to the winners of the draws during advertising campaigns, as well as costs of other types of advertising for tax purposes are recognized in an amount not exceeding 1% of the proceeds.
Based on the structure of clause 4 of article 264 of the Tax Code of the Russian Federation, it can be concluded that the rationing of costs applies only to expenses for prizes, as well as to other expenses for advertising that are not specified in paragraphs 2 - 4.
At the time of preparing the response, the State Duma was considering a draft federal law "On Amendments and Additions to the Second Part of the Tax Code Russian Federation and in separate legislative acts Of the Russian Federation ". This draft, among other things, provides for the introduction of amendments to clause 4 of article 264 of the Tax Code of the Russian Federation. It is assumed that the words of paragraph 5 of clause 4" for other types of advertising "are replaced by the words" other types of advertising not specified in paragraph. 2 - 4 of this paragraph ".
Thus, the prepared amendments confirm that the expenses for advertising in the media, for outdoor advertising and for participation in exhibitions should be taken for tax purposes without restrictions.
Signed to print M. Maslennikov
02/10/2002 "AKDI" Economics and Life ", 2002, N 2
... Is the tax authorities entitled to apply the Methodological Recommendations on the Application of Chapter 21 "Value Added Tax" of the Tax Code of the Russian Federation due to the fact that this Order was not registered with the Ministry of Justice? Does paragraph 8 of clause 21 of these Recommendations apply in terms of non-application of benefits until 01.01.2002 due to the lack of a list approved by the Government of the Russian Federation? "
In accordance with paragraphs. 22 p. 1 of art. 264 of the Tax Code of the Russian Federation, other expenses related to production and (or) sale include entertainment expenses.
According to paragraph 2 of Art. 264 of the Tax Code of the Russian Federation, representative expenses include the taxpayer's expenses for the official reception and (or) servicing of representatives of other organizations participating in negotiations in order to establish and (or) maintain mutual cooperation, as well as participants who have arrived at meetings of the board of directors (management board) or other management of the taxpayer's body, regardless of the place where these events are held, including:
The costs of holding an official reception (breakfast, lunch or other similar event) for the specified persons, as well as officials of the taxpaying organization participating in the negotiations;
Transport support for the delivery of these persons to the venue of the entertainment event and (or) the meeting of the governing body and back;
Buffet service during negotiations;
Payment for the services of non-taxpayer translators to provide translation during entertainment events.
Note! If only employees of the organization take part in the event, then the costs of holding such an event cannot be taken into account when calculating income tax as representative.
For example, an enterprise with many branches gathers employees from these branches for a production meeting. The expenses for holding such an event are not representative (Resolution of the Federal Antimonopoly Service of the East Siberian District of 11.08.2006 N А33-26560 / 04-С3-Ф02-3935 / 06-С1, А33-26560 / 04-С3-Ф02-4272 / 06- C1).
Note! Tax legislation specifically identifies expenses that cannot be attributed to representation.
In accordance with paragraph 2 of Art. 264 of the Tax Code of the Russian Federation, entertainment expenses do not include expenses for organizing entertainment, recreation, prevention and treatment of diseases.
In accounting, entertainment expenses are accounted for as part of expenses for common types activities (debit of accounts 20 "Main production", 26 " General running costs", 44" Selling expenses ") in the amount of actual costs incurred (without any rationing).
For the recognition of entertainment expenses for the purpose of taxation of profits, it is necessary that they comply with the requirements of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, i.e. were justified, documented and related to the implementation of activities aimed at generating income.
In this regard, in practice, the tax authorities quite often insist on the illegality of accounting for the purposes of taxation of the costs incurred associated with the official admission, in the event that specific results were not achieved as a result of the negotiations.
However, achieving concrete results is not necessary condition to include entertainment expenses in the composition of expenses that reduce the tax base for income tax. The main thing is to prove that the topic of the negotiations was related to the activities of the organization aimed at generating income.
This is the approach that the courts adhere to when considering such disputes. So, for example, the FAS of the Ural District indicated that the link tax office the lack of connection between the disputed costs and specific income is illegal, since, given the nature of management costs, they cannot be associated with a specific income, such as material ones, that is, it is enough that they are, in principle, in an appropriate amount (Resolution of 17.06 .2004 N F09-2441 / 04-AK).
Representation expenses during the reporting (tax) period are included in other expenses in the amount not exceeding 4% of the amount of the organization's expenses for labor remuneration for this reporting (tax) period.
Thus, in order to determine the maximum amount of entertainment expenses, it is necessary to correctly calculate the amount of labor costs.
For the purpose of taxation of profits, the composition of labor costs includes payments named in Art.
255 of the Tax Code of the Russian Federation.
When determining the standard of entertainment expenses, labor costs accrued in this reporting (tax) period are taken into account.
For organizations that determine income and expenses on an accrual basis, entertainment expenses are classified as indirect expenses (clause 1 of article 318 of the Tax Code of the Russian Federation). That is, the amount of entertainment expenses incurred in the reporting (tax) period in full (within the calculated standard) refers to the expenses of the current reporting (tax) period.
In accordance with paragraphs. 5 p. 7 art. 272 of the Tax Code of the Russian Federation, the date of the approval of the advance report is recognized as the date of entertainment expenses.
In the event that an organization determines income and expenses on a cash basis, entertainment expenses are recognized only after their actual payment (Article 273 of the Tax Code of the Russian Federation).
Documentary confirmation
In accordance with paragraph 1 of Art. 9 of the Law on Accounting, all business transactions carried out by an organization must be formalized by supporting documents. These documents serve as primary accounting documents on the basis of which accounting is kept.
For profit tax purposes, in accordance with Art. 252 of the Tax Code of the Russian Federation, all expenses must be documented.
Accordingly, the inclusion of entertainment expenses in the organization's expenses, both in accounting and in tax accounting, is possible only if there are primary accounting documents.
To begin with, the organization should draw up an estimate of the entertainment costs for the current year. This estimate can be approved at the general meeting of participants (shareholders) of the organization or by the head of the organization.
In addition, internal organizational and administrative documents should be issued (for example, it can be a provision on the conduct of entertainment events, approved by order of the head of the organization), which may reflect the following points:
The procedure for issuing accountable amounts for entertainment expenses;
The procedure for spending funds on entertainment expenses;
Order documenting entertainment expenses;
The procedure for exercising control over spending and writing off funds for entertainment expenses;
Rationing of certain types of entertainment expenses (for example, the organization may set the maximum amount of expenses per person when holding entertainment events in a restaurant).
In the future, the decision to hold each specific entertainment event should be accompanied by the following documents:
The order of the head on the holding of the event and on the appointment of a person responsible for its holding. This order also reflects the purpose of the event;
The program of the business meeting indicating the date, place and timing of the event, last name, first name, patronymic of the participants from the host organization and from the side of the invitees and their positions, an approved estimate of entertainment expenses.
On the basis of these documents, money is issued against the account.
After the holding of each event, the person responsible for its holding draws up and submits to the accounting department documents confirming both the fact of the event itself and the amount of the actual costs of its holding.
These documents include:
Report on the meeting (list of issues under consideration, agreements reached, etc.);
An advance report, which is accompanied by documents confirming the actual expenses incurred.
Expenses for entertainment purposes can be confirmed by the following documents:
Public catering enterprises accounts;
Sales receipts;
KKT checks;
Documents confirming the payment of transportation costs;
Documents confirming payment for the services of an interpreter;
Waybills, sales and purchase acts, etc.
In the Letter of the Federal Tax Service for Moscow dated 04/12/2007 N 20-12 / 034115, it is indicated that the following information should be reflected in the report on entertainment expenses drawn up after specific entertainment events:
The purpose of the event and the results of its holding;
Date and place of the event;
The program of the event;
Composition of invited delegations;
Host participants;
The amount of expenses for entertainment purposes.
Note that the preparation of such reports, of course, is not a mandatory requirement, but their presence guarantees the absence of claims from the outside tax authorities... So, for example, from the Letter of the Federal Tax Service for Moscow from 22.12.2006 N 21-11 / [email protected] it follows that in the absence of the names of the persons who participated in the event in the report, the expenses incurred cannot be taken into account for the purposes of taxation of profits.
At the same time, arbitration practice shows that the absence in the report of any information from those listed above cannot serve as a reason for refusing to accept the costs incurred. So, for example, the FAS of the Ural District (Resolution of 09/07/2005 N F09-3872 / 05-C7) came to the conclusion that tax law does not require mandatory inclusion in the list of documents confirming the implementation of hospitality expenses, a list of names of representatives of organizations - participants in the negotiations and the program of a business meeting.
By virtue of paragraph 2 of Art. 9 of the Accounting Law, primary accounting documents are accepted for accounting if they are drawn up in the form contained in the albums of unified forms of primary accounting documentation, and documents, the form of which is not provided for in these albums, must contain the following mandatory details:
a) the name of the document;
b) date of preparation of the document;
c) the name of the organization on behalf of which the document was drawn up;
e) meters business transaction in kind and in monetary terms;
f) the names of the positions of the persons responsible for the performance of the business transaction and the correctness of its registration;
g) personal signatures of these persons.
In this way, source documents, confirming the entertainment expenses incurred, must contain all the necessary details listed above.
In the absence of supporting documents or in the absence of any available documents required details the tax authorities, most likely, will insist on the impossibility of accounting for the corresponding expenses for the purpose of taxation of profits (see Letter of the Federal Tax Service for Moscow dated December 23, 2005 N 20-12 / 95338).
Expenses for the official reception, buffet service
Representative events can be held both on the territory of the organization itself, and in some other place, for example, in a cafe, restaurant, club, etc.
When holding an event on the territory of an organization, entertainment expenses may include not only the cost of purchasing food, but also the cost of purchasing disposable tableware (Letter of the Federal Tax Service for Moscow dated 06.10.2006 N 2012 / 89121.2), paper napkins, tablecloths and etc.
As a rule, all this is purchased by accountable persons for cash. Therefore, for documentary confirmation of such expenses in the organization, there must be expense reports with attached cash and sales receipts.
If the event is held on the side (for example, in a restaurant), then the documentary evidence of expenses will be an invoice and a cashier's receipt.
But the inclusion of restaurant rental costs in the entertainment expenses may lead to a dispute with the tax authority, since tax authorities, as a rule, insist that the list of entertainment expenses given in paragraph 2 of Art. 264 of the Tax Code of the Russian Federation, is closed. Expenses that are not named in it cannot be taken into account for tax purposes.
As a rule, judges do not support such a “narrow” approach of the tax authorities. For example, the Federal Antimonopoly Service of the Moscow District agreed that the cost of renting a restaurant for an official reception can be attributed to entertainment expenses on the basis of paragraph 2 of Art. 264 of the Tax Code of the Russian Federation (Resolution of 12.09.2005 N КА-А40 / 8426-05).
However, hospitality should be distinguished from the cost of organizing entertainment and recreation.
Here is the real situation. The organization rented a banquet hall for official negotiations. There were bowling alleys in this banquet hall. The organization did not use the bowling lanes, but paid for their rent, since one of the conditions for renting this banquet hall was the rent of bowling lanes.
According to the Federal Antimonopoly Service of the North-West District (Decree of October 27, 2005 N A56-3124 / 2005), the cost of renting bowling lanes is related to the expenses for organizing entertainment and recreation and, accordingly, cannot be attributed to entertainment expenses.
Alcohol spending
The question of the possibility of attributing the costs of purchasing alcoholic beverages consumed during an official reception to entertainment expenses deserves special attention.
For a number of years, the tax authorities have unequivocally argued that such costs do not belong to entertainment expenses, since they are not named in paragraph 2 of Art. 264 of the Tax Code of the Russian Federation.
However, in Lately, including under the influence of the established arbitration practice, the position of the controlling authorities has changed.
The Ministry of Finance of Russia, in a Letter dated 16.08.2006 N 03-03-04 / 4/136, explained that the expenses of an organization for alcoholic beverages during an official reception may be included in entertainment expenses if they meet the criteria of clause 1 of Art. 252 of the Tax Code of the Russian Federation.
Arbitration courts, in the event of disputes regarding the possibility of attributing expenses for the purchase of alcoholic beverages to entertainment expenses for an official reception, also support taxpayers (Resolutions of the FAS
Volga district from 01.02.2005 N А57-1209 / 04-16, FAS of the North-Western district from 12.05.2005
N A56-24907 / 04).
Travel and accommodation expenses for event participants
According to paragraph 2 of Art. 264 of the Tax Code of the Russian Federation, representative expenses include the expenses of an organization for the official reception and (or) servicing of representatives of other organizations participating in negotiations in order to establish and (or) maintain mutual cooperation, as well as participants who have arrived at meetings of the board of directors (management board) or other management of the taxpayer's body, regardless of the place where these events are held.
Relevant for many organizations is the question of the possibility of attributing the costs of accommodation (hotel services) to representatives of third-party organizations who arrived to participate in official events as representative expenses.
The tax authorities use their standard argument in answering this question. These costs are not named in paragraph 2 of Art. 264 of the Tax Code of the Russian Federation, therefore they cannot reduce the tax base for income tax (see Letters of the Ministry of Finance of Russia dated 04.16.2007 N 03-03-06 / 1/235, Federal Tax Service of Russia dated 04.18.2007 N 04-1-02 / [email protected], UFNS for Moscow from 12.04.2007 N 20-12 / 034115).
but arbitration courts when disputes arise on this issue, as a rule, they hold the opposite opinion.
So, for example, the FAS of the West Siberian District came to the conclusion that the "concept of" service "in the sense of clause 2 of article 264 of the Tax Code of the Russian Federation has a wide range, which, in accordance with the provisions of article 11 of the Tax Code of the Russian Federation, can include security housing as a normal existence of a person who arrived from another locality "(Resolution of 01.03.2007 N Ф04-9370 / 2006 (30552-А81-27)).
Courts of other districts also come to the conclusion that the content of Art. 264 of the Tax Code of the Russian Federation allows organizations to take into account as part of entertainment expenses the costs of hotel services for representatives of other organizations participating in official events (Resolutions of the Federal Antimonopoly Service of the Moscow District of December 23, 2004 N KA-A40 / 12097-04, FAS of the North-Western District of 05/17/2004 N A56-21571 / 03).
Clause 2 of Art. 264 of the Tax Code of the Russian Federation, it is established that entertainment expenses include transport support for the delivery of officials participating in the negotiations to the place of the entertainment event and (or) meeting of the governing body and back.
In the opinion of the tax authorities, this clause does not apply to the payment of the fare of negotiators from other cities or countries to the city in which the official event will take place (see Letter of the Federal Tax Service for Moscow dated July 14, 2006 N 28-11 / 62271).
In the opinion of the tax authorities, on the basis of this provision, only the travel expenses of the invited invited persons to the place of the official event, for example, from the location of the host organization or from the hotel, are related to entertainment expenses.
Thus, the inclusion in the hospitality expenses of travel expenses for participants from other cities (countries) to the city of the hospitality event will lead to a dispute with the tax authority. At the same time, an analysis of judicial practice shows that the judges do not support the tax authorities in this matter (Resolution of the Federal Antimonopoly Service of the Volga District of 31.08.2006 N A65-18519 / 2005-CA2-22).
Keep in mind. If your organization does bear the costs of travel and accommodation for representatives of other organizations who came to the negotiations, the problem may arise not only taking these costs into account for purposes of taxation of profits.
The tax authorities regard the payment of such expenses as payments to individuals. Accordingly, they insist that the cost of travel and accommodation should be included in the income of the respective individuals, which is subject to personal income tax in accordance with the generally established procedure (Letters of the Federal Tax Service of Russia of 18.04.2007 N 04-1-02 / [email protected], UFNS for Moscow from 14.07.2006 N 28-11 / 62271).
Flowers and gifts
A common situation is when partners who have come to negotiations are presented with some kind of gifts - flowers, writing utensils, boxes of chocolates, etc. Flowers can be used to decorate a meeting room.
Tax authorities generally object to accounting for such costs for profit tax purposes. So, for example, in the Letter of the Ministry of Finance of Russia dated 08.16.2006 N 03-03-04 / 4/136 it is indicated that the cost of purchasing souvenirs for business partners cannot be taken into account for tax purposes as part of entertainment expenses.
At the same time, representatives of the Ministry of Finance of Russia admit the possibility of taking into account the cost of souvenirs with the symbols of the organization as part of entertainment expenses,
presented during an official reception in accordance with the custom of business turnover to representatives of counterparty organizations (Letter dated 16.08.2004 N 02-5-10 / 51).
Accordingly, it is likely that it will be necessary to prove the legality of including such expenses in the composition of entertainment expenses in court. BUT arbitrage practice on this issue today is ambiguous.
In some cases, the courts consider that these expenses should be included in the entertainment expenses (Resolutions of the Federal Antimonopoly Service of the West Siberian District of 11.05.2006 N F04-2610 / 2006 (22165-A46-40), Volga District of 01.02.2005 N A57-1209 / 04-16).
However, in other cases, the judges take the following position: the composition of entertainment expenses is really unlimited, however, the taxpayer is obliged to prove the economic justification of the costs of purchasing flowers, and if he cannot do this, these expenses cannot be attributed to representative expenses (Resolution of the FAS Volgo-Vyatsky District from 15.03.2006 N А29-1822 / 2005а).
other expenses
Quite often, situations arise when it is difficult to determine whether the costs of certain events are attributed to entertainment expenses or not.
For example, formal events - business negotiations are held over several days. The organization pays for breakfasts, lunches and dinners, which are not of an official nature, for representatives of third parties.
The Ministry of Finance of Russia, in its Letter dated 05.04.2005 N 03-03-01-04 / 1/157, explained that the expenses for breakfasts, lunches and dinners, which are not of an official nature, should be paid by representatives of delegations who arrived at the negotiations, at the expense of per diem, paid when sending employees, or at their own expense.
Another controversial issue. Clause 2 of Art. 264 of the Tax Code of the Russian Federation, it is established that entertainment expenses include the cost of reception and service:
Representatives of other organizations involved in the negotiations;
Participants attending a meeting of the board of directors (management board) or other governing body.
However, in practice, organizations often incur the costs of hiring other persons, such as members of the audit committee.
Does the organization have the right to classify the costs of receiving and servicing such persons as representative?
The tax authorities give a negative answer. First of all, they refer to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, namely that any costs are recognized as expenses, provided that they are made to carry out activities aimed at generating income. And in the situation under consideration, there is no connection with activities aimed at generating income.
In addition, members of the audit committee do not belong to the governing body.
It should also be borne in mind that the position of the tax authorities is that the list of entertainment expenses given in paragraph 2 of Art. 264 of the Tax Code of the Russian Federation is exhaustive, accordingly, everything that is not named in it does not apply to entertainment expenses accounted for for tax purposes.
In particular, according to the tax authorities, they do not apply to entertainment expenses:
Costs for issuing visas for foreign partners (Letter from the UMNS for Moscow dated 13.02.2002 N 26-12 / 6751);
Costs for registration of premises for an official reception (Letter from the UMNS in Moscow dated January 22, 2004 N 26-08 / 4777);
The cost of renting the premises where the official reception is held (Letter of the Ministry of Finance of Russia dated March 12, 2003 N 04-02-03 / 29);
Expenses for holding an informal meeting (in a cafe) with potential partners (suppliers) organized by an employee of the organization who is on a business trip in the city of residence of these partners (Letter of the Federal Tax Service for Moscow dated 05.16.2006 N 20-12 / 41851);
Expenses for receiving and servicing clients - individuals (Letter of the Ministry of Finance of Russia dated November 24, 2005 N 03-03-04 / 2/119).
However, this position of the tax authorities is successfully challenged by taxpayers in courts.
The courts, as a rule, agree that the list of entertainment expenses is not closed, and when resolving the issue of attributing expenses to entertainment expenses, first of all, one should proceed from their economic justification (see, for example, Resolution of the FAS of the Volgo-Vyatka District of 15.03 .2006 N A29-1822 / 2005a).
Personal income tax and UST
Holding an official event, the organization carries out entertainment expenses, in particular, for the transport services of invited persons, pays for meals, etc.
In this regard, the question arises: is this income of invited persons received in kind, and is it subject to personal income tax?
The tax authorities, in response to specific questions, clarify that in accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation are not subject to personal income tax (exempt from taxation) all types of established current legislation RF, legislative acts of the constituent entities of the RF, decisions of representative bodies local government compensation payments (within the limits established in accordance with the legislation of the Russian Federation) related to the performance of the taxpayer's labor duties.
The amount of entertainment expenses that the organization makes within the norms established by law (subparagraph 22 of paragraph 1 of article 264 of the Tax Code of the Russian Federation) refer to compensation payments related to the performance of labor duties, and are not subject to inclusion in the taxable income of individuals in accordance with paragraph 3 of Art. 217 of the Tax Code of the Russian Federation.
In some cases, this conclusion is also supported by the arbitration courts (Resolutions of the FAS of the Volga District of 03.16.2006 N A72-5629 / 05-6 / 435, A72-5959 / 05-6 / 450, of the Ural District of 05.16.2006 N F09-2876 / 06-C2).
However, in our opinion, the approach here should be completely different. Hospitality expenses are inherently expenses of the organization (in the interests of the organization) and therefore cannot be recognized as payments in favor of individuals, regardless of whether they were made within the limits established by paragraph 2 of Art. 264 of the Tax Code of the Russian Federation, or exceed the established limit.
Note that this logic finds understanding among judges (Resolutions of the Federal Antimonopoly Service of the Central District of 18.08.2004 N A64-1002 / 04-13, of the Volga District of 10.04.2007 N A72-7503 / 06-7 / 283 and of 24.11.2005 N A65 -3726 / 2005-CA1-37).
In accordance with paragraph 1 of Art. 236 of the Tax Code of the Russian Federation, the object of taxation for the unified social tax is recognized as payments and other remuneration accrued by taxpayers in favor of individuals under labor and civil law contracts, the subject of which is the performance of work, the provision of services (with the exception of remuneration paid to individual entrepreneurs), as well as copyright agreements.
Hospitality expenses are not payments and other benefits accrued in favor of individuals under labor and civil law contracts and included in the wages fund, but are other expenses associated with the production and (or) sale of products, and therefore are not subject to UST. (see Letter of the Federal Tax Service of Russia for Moscow dated 22.12.2006 N 21-11 / [email protected]).
This conclusion is fully confirmed by the arbitration practice (Resolution of the Federal Antimonopoly Service of the North Caucasus District of 28.04.2006 N F08-1641 / 2006-682A).
77 Moscow city
Date of publication: 13.08.2012
Letter of the Federal Tax Service of Russia dated 03.04.2009 No. ШС-22-3 / 256 "On the application of subparagraph 29 of clause 1 of article 264 of the Tax Code of the Russian Federation in connection with the cancellation of licensing and the introduction of self-regulation"
Date of letter: 03.04.2009
Room: ShS-22-3 / 256
Tax type (subject): Corporate income tax
Articles Tax Code:
Question:
On the application of subparagraph 29 of clause 1 of article 264 of the Tax Code of the Russian Federation in connection with the abolition of licensing and the introduction of self-regulation
Answer:
Federal tax office, in connection with the requests of the tax authorities regarding the introduction of a self-regulation system in certain areas of activity, in agreement with the Ministry of Finance of Russia (letter of the Department of Tax and Customs and Tariff Policy dated 27.03.2009 No. 03-03-05 / 56) reports the following.
According to Federal Law No. 148-FZ of July 22, 2008 "On Amendments to the Urban Planning Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" (hereinafter - Law No. 148-FZ), a self-regulation system based on the provisions of Federal Law of 01.12.2007 No. 315-FZ "On Self-Regulatory Organizations" (hereinafter - Law No. 315-FZ).
1. The adopted amendments cancel the licensing system in construction activities, replacing it with self-regulation.
At the same time, Law No. 148-FZ provides for the need for a transition period from licensing to self-regulation of activities in the construction industry.
Until 01.01.2010 implementation entrepreneurial activity by engineering surveys, architectural and construction design, construction, reconstruction, overhaul objects capital construction is allowed at the choice of the performer of the relevant types of work on the basis of:
- a license issued in accordance with Federal law dated 08.08.2001 No. 128-FZ "On licensing certain types of activities";
- certificates of admission to a certain type or types of work that affect the safety of capital construction projects issued by a self-regulatory organization in the field of engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction facilities in the manner prescribed The Urban Planning Code Of the Russian Federation (hereinafter referred to as the Town Planning Code).
Articles 55.2 and 55.3 of the Urban Planning Code establish that self-regulatory organizations are organizations created in the form of a non-profit partnership based on the membership of persons performing engineering surveys, training project documentation carrying out construction.
Thus, a membership-based non-profit organization is recognized as a self-regulatory organization.
Since 2010, works on engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities will be carried out solely on the basis of a permit issued by a self-regulatory organization.
A certificate of admission to a certain type or types of work that affect the safety of capital construction projects is issued to a person admitted to a member of a self-regulatory organization (clause 6 of Article 55.6 of the Town Planning Code).
According to article 55.10 of the Urban Planning Code general meeting members of a self-regulatory organization establishes the amount and procedure for payment of the entrance fee, regular membership fees and contribution to compensation fund.
Thus, according to the Urban Planning Code, organizations that are members of a self-regulatory organization that have paid an entry fee, a fee are allowed to carry out work on engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction projects that affect the safety of capital construction projects. to the compensation fund, as well as paying regular membership fees.
In accordance with paragraph 40 of Article 270 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation), when determining the tax base for income tax, expenses in the form of contributions, deposits and other mandatory payments paid to non-profit organizations and international organizations, except for those specified in subparagraphs 29 and 30 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation.
On the basis of subparagraph 29 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation, other expenses related to production and sale include contributions, deposits and other mandatory payments paid to non-profit organizations, if the payment of such contributions, deposits and other mandatory payments is a condition for the implementation of activities by taxpayers - payers of such contributions, deposits or other mandatory payments.
Considering that the payment of the entrance fee, contribution to the compensation fund, as well as regular membership fees to a self-regulatory organization, is a condition for the organization to obtain permission to carry out work on engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction projects that provide impact on the safety of capital construction projects, we believe that these payments for the purpose of taxation of profits should be considered as other expenses under subparagraph 29 of paragraph 1 of article 264 of the Tax Code of the Russian Federation.
2. With regard to accumulation self-regulatory organizations admission fee, regular membership fees and contribution to the compensation fund, we inform you.
In accordance with paragraph 2 of Article 251 of the Tax Code of the Russian Federation, when determining the tax base for income tax, earmarked receipts are not taken into account (with the exception of earmarked receipts in the form excisable goods). Such earmarked receipts include, in particular, earmarked receipts for the maintenance of non-commercial organizations and their statutory activities in the form of admission and membership fees, made in accordance with the legislation of the Russian Federation on non-commercial organizations. In this case, taxpayers - recipients of the specified targeted receipts are required to keep a separate record of income (expenses) received (generated) within the framework of targeted receipts.
Contributions to the compensation fund are not named in the above list.
However, in accordance with Article 55.4. Of the Urban Planning Code, one of the requirements for a non-profit organization necessary for acquiring the status of a self-regulatory organization is the presence of a compensation fund.
At the same time, the exemption of a member of a self-regulatory organization from the obligation to make a contribution to the compensation fund of a self-regulatory organization, including at the expense of his claims to a self-regulatory organization, is not allowed (Article 55.16).
Considering that the civil legislation does not contain a definition of the concept of "admission fee to a self-regulatory organization", a contribution to the compensation fund of a self-regulatory organization, which is an integral condition for admission to membership of a self-regulatory organization and directed to the formation of the property of a self-regulatory organization, used in a targeted way to conduct statutory activities in the manner, established by the City Planning Code, can be considered for profit tax purposes as part of the entrance fee to a self-regulatory organization. A similar position is set forth in the letter of the Ministry of Finance of Russia dated 03.07.2008 No. 03-03-05 / 69.
Considering the above, income in the form of contributions to the compensation fund paid by members of a self-regulatory organization is not taken into account for tax purposes as part of the income of this self-regulatory organization.
Valid state
Counselor of the Russian Federation 2nd class
S.N.Shulgin
Report non-compliance with this recommendation by the tax authority
The Federal Tax Service draws the attention of users of the reference database to the fact that the information you send about cases of non-compliance by the tax authorities with the explanations of the Federal Tax Service of Russia are not:
- an appeal in the sense given to it by the Federal Law of the Russian Federation of May 2, 2006 No. 59-FZ "On the Procedure for Considering Appeals from Citizens of the Russian Federation";
- a complaint against the action (inaction) of officials of tax authorities in accordance with the norms established by Articles 138-141 of the Tax Code of the Russian Federation.
This information will be used by the Federal Tax Service to improve the quality of tax administration and work with taxpayers.
- losses from marriage;
- advertising costs. For tax purposes, the costs of advertising produced (purchased) and (or) sold goods (works, services), taxpayer activities, trademarks and service marks, including participation in exhibitions and fairs, are taken into account (subparagraph 28, paragraph 1 of article 264 of the Tax Code of the Russian Federation ).
- Representation costs associated with the official reception and service of representatives of other organizations participating in the negotiations in order to establish and maintain cooperation (clause 22, clause 1 of article 264 of the Tax Code of the Russian Federation).
- costs for the provision of services for warranty repair and maintenance (including deductions to the corresponding reserve) (subparagraph 9 of paragraph 1 of article 264 of the Tax Code of the Russian Federation).
OTHER EXPENSES ASSOCIATED WITH PRODUCTION AND (OR) SALE (ACCORDING TO ART. 264 TC RF)
Such a reserve is entitled to create organizations that sell goods or work (Article 267 of the Tax Code of the Russian Federation) in cases where contracts with buyers provide for maintenance and repairs during the warranty period. The reserve for warranty repairs is not formed at a time at the beginning of a quarter (year), but gradually - as the goods (work) are sold. The Tax Code of the Russian Federation normalizes the size of the reserve for warranty repairs and warranty service. It should not be more than the value of the goods sold under the condition of the guarantee, multiplied by the share of the actual costs of warranty repairs in the organization's revenue from the sale of such goods for the previous three years.
Non-operating expenses
Letter dated 03.04.2009 No. ШС-22-3 / 256
Tax Code of the Republic of Kazakhstan
Article 264. Costs not subject to deduction
The following are not deductible:
1) costs not related to activities aimed at generating income;
2) expenses on operations performed without the actual performance of work, provision of services, shipment of goods with a taxpayer, the head and (or) founder (participant) of which is not involved in the registration (re-registration) and (or) the implementation of financial and economic activities of such legal entity established by a court decision that entered into legal force, with the exception of operations for which the court established the actual receipt of goods, works, services from such a taxpayer;
3) expenses on transactions with a taxpayer recognized as inactive in the manner specified in Article 91 of this Code, from the date of the order on recognizing him as inactive;
4) expenses for the action (actions) on the issuance of an invoice and (or) other document, recognized (recognized) by an effective judicial act, committed (committed) by a private enterprise without actually performing work, rendering services, shipment of goods;
5) the costs of a transaction that has been declared invalid on the basis of a court decision that has entered into legal force;
6) penalties (fines, penalties) to be paid (contributed) to the budget, with the exception of penalties (fines, penalties) to be paid (paid) to the budget under public procurement contracts;
7) the amount of excess expenses for which this Code establishes deduction rates over the maximum deduction amount calculated using the specified rates;
8) the amount of taxes and payments to the budget, calculated (accrued) and paid in excess of the amounts established by the legislation of the Republic of Kazakhstan or another state (for taxes and payments paid to the budget of another state);
9) costs of acquisition, production, construction, assembly, installation and other costs included in the cost of objects social sphere provided for in Article 239 of this Code, as well as the costs of their operation;
10) the value of property transferred by the taxpayer on a gratuitous basis, unless otherwise provided by this Code. The cost of work performed free of charge, services rendered is determined in the amount of expenses incurred in connection with such performance of work, provision of services;
11) the excess of the amount of value-added tax attributable to offset over the amount of the accrued value-added tax for the tax period, incurred by a taxpayer applying Article 411 of this Code;
12) deductions to reserve funds, with the exception of deductions provided for by Articles 250, 252 and 253 of this Code;
13) book value stocks transferred under a contract of purchase and sale of an enterprise as a property complex;
14) the amount of the additional payment paid by a subsoil user carrying out activities under a production sharing contract;
15) the costs of the taxpayer included in accordance with Article 228 of this Code in initial cost assets not subject to depreciation;
16) expenses related to the sale of minerals transferred by the subsoil user on account of the fulfillment of the tax obligation in kind;
17) the cost of the volumes of minerals transferred by the subsoil user on account of the fulfillment of the tax obligation in kind - from the recipient on behalf of the state;
18) the book value of assets transferred for temporary possession and use under a property lease (lease) agreement, except for a lease agreement;
19) the cost of the volumes of minerals transferred by the subsoil user on account of the fulfillment of the tax obligation in kind;
Note of the RCLI!
Subparagraph 20) is valid until 01.01.2027 in accordance with the Law of the Republic of Kazakhstan dated 25.12.2017 No. 121-VI.
20) expenses of a bank subsidiary that acquires doubtful and hopeless assets of the parent bank:
in the form of money received by this organization in accordance with the legislation of the Republic of Kazakhstan on banks and banking and listed to the parent bank;
not related to the implementation of activities provided for by the legislation of the Republic of Kazakhstan on banks and banking activities;
21) the expenses of a non-profit organization incurred from the income specified in paragraph 2 of Article 289 of this Code.
Paragraph 3. Deductions on fixed assets
Article 1 ... 262263 264 265266…773
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MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
THE FEDERAL TAX SERVICE
ABOUT APPLICATION OF PP. 29 P. 1 ST. 264 of the Tax Code of the Russian Federation in connection with the cancellation of the licensing system and the introduction of self-regulation
The Federal Tax Service, in connection with the requests of the tax authorities regarding the introduction of a self-regulation system in certain areas of activity, in agreement with the Ministry of Finance of Russia (letter from the Department of Tax and Customs and Tariff Policy dated 27.03.2009 N 03-03-05 / 56) reports the following.
According to the Federal Law of 22.07.2008 N 148-FZ "On Amendments to the Urban Planning Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" (hereinafter - Law N 148-FZ), from 01.01.2009, a self-regulation system based on the provisions of Federal Law of 01.12.2007 N 315-FZ "On Self-Regulatory Organizations" (hereinafter - Law N 315-FZ).
1. The adopted amendments abolish the licensing system in construction activities, replacing it with self-regulation.
At the same time, Law N 148-FZ provides for the need for a transition period from licensing to self-regulation of activities in the construction industry. Until 01.01.2010, entrepreneurial activity in engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction facilities is allowed at the choice of the performer of the relevant types of work on the basis of:
- a license issued in accordance with Federal Law of 08.08.2001 N 128-FZ "On Licensing Certain Types of Activities";
- certificates of admission to a certain type or types of work that affect the safety of capital construction projects issued by a self-regulatory organization in the field of engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction facilities in the manner prescribed by the Urban Planning Code of the Russian Federation ( hereinafter referred to as the Urban Planning Code) Articles 55.2 and 55.3 of the Urban Planning Code establish that self-regulatory organizations are organizations created in the form of a non-profit partnership, based on the membership of persons performing engineering surveys, preparing project documentation, carrying out construction.
Thus, a membership-based non-profit organization is recognized as a self-regulatory organization.
Since 2010, works on engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction facilities that affect the safety of capital construction facilities will be carried out solely on the basis of a permit issued by a self-regulatory organization.
Other expenses (Article 264 of the Tax Code of the Russian Federation)
A certificate of admission to a certain type or types of work that affect the safety of capital construction projects is issued to a person admitted to a member of a self-regulatory organization (clause 6 of Article 55.6 of the Town Planning Code).
According to Article 55.10 of the Town Planning Code, the general meeting of members of a self-regulatory organization establishes the amount and procedure for paying the entrance fee, regular membership fees and contributions to the compensation fund.
Thus, according to the Urban Planning Code, organizations that are members of a self-regulatory organization that have paid an entry fee, a fee are allowed to carry out work on engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction projects that affect the safety of capital construction projects. to the compensation fund, as well as paying regular membership fees.
In accordance with paragraph 40 of Article 270 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation), when determining the tax base for income tax, expenses in the form of contributions, deposits and other mandatory payments paid to non-profit organizations and international organizations, except for those specified in subparagraphs 29, are not taken into account. and 30 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation.
On the basis of subparagraph 29 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation, other costs associated with production and sale include contributions, deposits and other mandatory payments paid to non-profit organizations, if the payment of such contributions, deposits and other mandatory payments is a condition for the implementation of activities by taxpayers - payers of such contributions, deposits or other mandatory payments.
Considering that the payment of the entrance fee, contribution to the compensation fund, as well as regular membership fees to a self-regulatory organization is a condition for the organization to obtain permission to carry out work on engineering surveys, architectural and construction design, construction, reconstruction, overhaul of capital construction projects that have an impact for the safety of capital construction projects, we believe that these payments for the purpose of taxation of profits should be considered as other expenses under subparagraph 29 of paragraph 1 of article 264 of the Tax Code of the Russian Federation.
2. Regarding the accumulation of the admission fee, regular membership fees and contribution to the compensation fund by the self-regulatory organizations, we inform you. In accordance with paragraph 2 of Article 251 of the Tax Code of the Russian Federation, when determining the tax base for income tax, targeted receipts are not taken into account (with the exception of targeted receipts in the form of excisable goods). Such earmarked receipts include, in particular, earmarked receipts for the maintenance of non-commercial organizations and their statutory activities in the form of admission and membership fees, made in accordance with the legislation of the Russian Federation on non-commercial organizations. At the same time, taxpayers - recipients of the specified targeted receipts are required to keep a separate record of income (expenses) received (generated) within the framework of targeted receipts. Contributions to the compensation fund are not named in the above list. At the same time, in accordance with Article 55.4 of the City Planning Code, one of the requirements for a non-profit organization necessary to acquire the status of a self-regulatory organization is the existence of a compensation fund.
At the same time, the exemption of a member of a self-regulatory organization from the obligation to make a contribution to the compensation fund of a self-regulatory organization, including at the expense of his claims to a self-regulatory organization, is not allowed (Article 55.16).
Considering that the civil legislation does not contain a definition of the concept of "admission fee to a self-regulatory organization", a contribution to the compensation fund of a self-regulatory organization, which is an integral condition for admission to membership of a self-regulatory organization and is directed to the formation of the property of a self-regulatory organization, used in a targeted way to conduct statutory activities in the order, established by the City Planning Code, can be considered for profit tax purposes as part of the entrance fee to a self-regulatory organization. A similar position is set out in the letter of the Ministry of Finance of Russia dated 03.07.2008 N 03-03-05 / 69.
Considering the above, income in the form of contributions to the compensation fund paid by members of a self-regulatory organization is not taken into account for tax purposes as part of the income of this self-regulatory organization.
Active State Councilor of the Russian Federation, 2nd class S.N. SHULGIN
Other expenses (Article 264 of the Tax Code of the Russian Federation)
Other costs associated with production and distribution include:
- the amount of taxes and fees, customs duties and fees, insurance contributions to extra-budgetary funds;
- contributions for compulsory social insurance from industrial accidents and occupational diseases, produced in accordance with the legislation of the Russian Federation;
- the employer's expenses for the payment of benefits for temporary disability in accordance with the legislation of the Russian Federation (except for accidents at work and occupational diseases) for the days of temporary disability of the employee, which are paid at the expense of the employer;
- expenses for ensuring normal working conditions and safety measures provided for by the legislation of the Russian Federation, as well as expenses for the treatment of occupational diseases of workers employed in jobs with harmful or difficult working conditions (subparagraph 7 of paragraph 1 of article 264 of the Tax Code of the Russian Federation). Normal working conditions, in particular, include (Article 163 of the Labor Code of the Russian Federation):
good condition of premises, structures, machines, technological equipment and equipment;
timely provision of technical and other necessary documentation for work;
proper quality of materials, tools, other means and items necessary for the performance of work, their timely provision to the employee;
working conditions that meet the requirements of labor protection and production safety.
- the costs of recruiting employees, including the costs of the services of specialized organizations for the selection of personnel (clause 8, clause 1, article 264 of the Tax Code of the Russian Federation). However, in the event that the organization did not actually recruit them, including as a result of consideration of candidates submitted by specialized recruiting companies, they cannot be considered as economically justified expenses and taken into account for tax purposes;
- payments for leased property (subparagraph 10 of paragraph 1 of article 264 of the Tax Code of the Russian Federation). The size lease payments and the procedure for their transfer is determined by an agreement concluded in the manner prescribed by civil legislation. In this case, these payments are included in the composition of expenses regardless of the state registration of the lease agreement. If the lease agreement assigns repair obligations to the lessee, the costs of repairing the leased fixed assets are included by the lessee in other expenses in the manner prescribed by Article 260 of the Tax Code of the Russian Federation;
- the amount of travel expenses;
- expenses for the maintenance of official vehicles, as well as expenses for compensation for use for business travel personal cars and motorcycles within the limits established by the government of the Russian Federation;
- expenses for legal and information services;
- expenses for consulting and other similar services;
- payment to a public and (or) private notary for notarization;
- costs of maintenance services accounting provided by third parties or individual entrepreneurs;
- expenses for auditing services;
- costs of managing the organization or its individual divisions;
- publishing costs accounting statements, as well as publication and other disclosure of other information, if the taxpayer is obliged by the legislation of the Russian Federation to publish (disclose) them;
- costs associated with the submission of forms and information of state statistical observation;
- expenses for office supplies, expenses for postage, telephone, telegraph and other similar services;
- expenses for payment for communication services, computing centers and banks;
- expenses for the current study (research) of the market situation, collection of information directly related to the production and sale of goods (works, services);
- losses from marriage;
- expenses under contracts of a civil nature (including work contracts) concluded with individual entrepreneurs who are not on the staff of the organization (subparagraph 41 of paragraph 1 of article 264 of the Tax Code of the Russian Federation);
- advertising costs. For tax purposes, the costs of advertising produced (purchased) and (or) sold goods (works, services), taxpayer activities, trademarks and service marks, including participation in exhibitions and fairs (subparagraphs 28, paragraph 1 of Art.
Art. 264 of the Tax Code of the Russian Federation (2017): questions and answers
for participation in exhibitions, fairs, expositions, for window dressing, exhibitions -
sales, sample rooms and showrooms, the production of advertising brochures and catalogs containing information about the work and services performed and provided by the organization, and (or) about the organization itself, for a discount on goods that have been lost
their original qualities when exhibited.
These expenses for tax purposes can be taken into account without restrictions (subject to the availability of supporting documents).
Expenses for the purchase of prizes that are awarded to the winners of the drawings during the mass advertising campaigns, as well as expenses for other types of advertising (not mentioned above) can be taken into account when taxing in an amount not exceeding 1% of sales proceeds;
- representation costs associated with the official reception and service of representatives of other organizations participating in the negotiations in order to establish and maintain cooperation (p.
22 p. 1 of art. 264 of the Tax Code of the Russian Federation).
Representation expenses include the taxpayer's expenses for the official reception and (or) servicing of representatives of other organizations participating in negotiations in order to establish and (or) maintain mutual cooperation, as well as participants who have arrived at meetings of the board of directors (management board) or other governing body of the taxpayer, regardless of the location of these events. Representation expenses include the costs of holding an official reception (breakfast, lunch or other similar event) for the specified persons, as well as the officials of the taxpayer organization participating in the negotiations, transport support for the delivery of these persons to the venue of the entertainment event and (or) a meeting of the executive authority and back, buffet service during negotiations, payment for the services of interpreters who are not on the taxpayer's staff, to provide translation during entertainment events. Representation expenses during the reporting (tax) period are included in other expenses in the amount not exceeding 4 percent of the taxpayer's expenses for labor remuneration for this reporting (tax) period;
- expenses for training and retraining of personnel. These costs can be taken into account in taxation in full, but for this certain conditions must be met:
training in basic and additional professional educational programs, vocational training and retraining of taxpayer employees are carried out on the basis of an agreement with Russian educational institutions licensed or foreign educational institutions with the appropriate status;
training in basic and additional vocational educational programs, vocational training and retraining are provided to taxpayer employees who have entered into an employment contract with the taxpayer, or individuals who have entered into an agreement with the taxpayer providing for the obligation natural person no later than three months after the completion of the specified training, vocational training and retraining paid by the taxpayer, conclude an employment contract with him and work for the taxpayer for at least one year. If the employment contract between the specified individual and the taxpayer was terminated before the expiration of one year from the date of its commencement, except for cases of termination of the employment contract due to circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation), the taxpayer must include in extraordinary income the reporting (tax) period in which this employment contract was terminated, the amount of fees for education, vocational training or retraining of the relevant individual, previously taken into account when calculating the tax base. In the event that an employment contract of an individual with a taxpayer was not concluded after three months after the completion of training, vocational training or retraining paid by the taxpayer, these expenses are also included in the non-sales income of the reporting (tax) period in which this term for concluding the employment contract expired ...
The taxpayer is obliged to keep documents confirming the costs of training for the entire period of validity of the relevant training contract and one year of work of an individual whose training, vocational training or retraining was paid for by the taxpayer, in accordance with the employment contract concluded with the taxpayer, but not less than four years ;
- costs for the provision of services for warranty repair and maintenance (including deductions to the corresponding reserve) (subparagraph 9 of paragraph 1 of article 264 of the Tax Code of the Russian Federation). Such a reserve is entitled to create organizations that sell goods or work (Article 267 of the Tax Code of the Russian Federation) in cases where contracts with buyers provide for maintenance and repairs during the warranty period. The reserve for warranty repairs is not formed at a time at the beginning of a quarter (year), but gradually - as the goods (work) are sold. The Tax Code of the Russian Federation normalizes the size of the reserve for warranty repairs and warranty service. It should not be more than the value of the goods sold under the condition of the guarantee, multiplied by the share of the actual costs of warranty repairs in the organization's revenue from the sale of such goods for the previous three years.
Non-operating expenses- these are all economically justified costs of the organization that are not directly related to production or sale (Article 265 of the Tax Code of the Russian Federation).
When determining the tax base, expenses are not taken into account, the list of which is given in Art. 270 of the Tax Code of the Russian Federation, it is not closed. Therefore, if the expenses are not documented, are not economically justified or are associated with an activity for which income is not received, such expenses will not deduct the taxable base.
Other costs associated with production and sale (Article 264 of the Tax Code of the Russian Federation)
The list of other expenses in accordance with paragraph 1 of Art. 264 of the Tax Code of the Russian Federation is open. Accordingly, any expenses of the enterprise, provided they are connected with the production and sale of products, can be taken into account for tax purposes.
Other expenses include:
1 costs in accordance with paragraph 1 of Art. 264 of the Tax Code of the Russian Federation;
2 entertainment expenses in accordance with paragraph 2 of Art. 264 of the Tax Code of the Russian Federation;
3 expenses of the taxpayer for training and retraining of personnel in accordance with paragraph 3 of Art. 264 of the Tax Code of the Russian Federation;
In addition, when calculating corporate income tax, the following expenses should be taken into account:
a) expenses for the repair of fixed assets (Article 260 of the Tax Code of the Russian Federation);
b) expenses for the development of natural resources (Article 261 of the Tax Code of the Russian Federation);
c) expenditures on research and development (Art. 262 of the Tax Code of the Russian Federation);
d) expenses for compulsory and voluntary property insurance (Article 263 of the Tax Code of the Russian Federation);
At the same time, certain types of expenses for taxation purposes are established within the limits norms and standards.
These include:
- representative expenses (clause 3 of article 264 of the Tax Code of the Russian Federation);
- expenses for voluntary insurance of employees (clause 16 of Art.
Practical commentary on Art. 264 of the Tax Code of the Russian Federation
Non-operating expenses (Article 265 of the Tax Code of the Russian Federation)
Non-operating expenses include expenses not related to the production and sale of goods, works, services, i.e. not related to the main activity.
These include:
- expenses for the maintenance of the leased property (including depreciation);
- expenses on interest on debt obligations;
- expenses for organizing the issue of securities;
- expenses in the form of a negative exchange rate difference in the revaluation of property and claims;
- expenses of the payer applying the accrual method for the formation of reserves for doubtful debts;
- costs of maintaining the mothballed facilities and facilities;
- court costs and arbitration fees;
- expenses in the form of fines, penalties or other sanctions for violation of contractual or debt obligations, also in the form of amounts for compensation for damage caused;
- expenses for payment of bank services;
- losses of previous periods revealed in the reporting period;
- accounts receivable for which the limitation period has expired;
- losses from rejects, shortages, production downtime;
- losses from natural disasters, fires, accidents and other non-operating expenses in accordance with Art. 265 of the Tax Code of the Russian Federation.
Expenses not taken into account for profit tax purposes (Article 270 of the Tax Code of the Russian Federation)
The first group of expenses is expenses for which the source of payment is the own funds of enterprises (dividends, penalties, fines levied by government agencies, etc.).
The second group of expenses - expenses attributable to the financial result of the organization's activities, but not taken into account in taxation.
The third group of expenses - expenses that exceed the maximum level established for the corresponding group (representation, R&D, advertising, etc.).
The following expenses are not included in taxation:
a) in the form of the amounts of dividends accrued by the taxpayer and other amounts of profit after tax;
b) in the form of penalties, fines and other sanctions transferred to the budget (to state extra-budgetary funds), as well as fines and other sanctions levied by state organizations that are granted the right to impose these sanctions by the legislation of the Russian Federation;
c) in the form of a contribution to the authorized (share) capital, a contribution to a simple partnership;
d) in the form of the amount of income tax, as well as the amount of payments for excess emissions of pollutants into the environment;
e) in the form of expenses for the acquisition and (or) creation of depreciable property (taking into account the specifics provided for in clause 1 of article 257 of the Tax Code of the Russian Federation in relation to depreciable property of its own production);
f) in the form of contributions for voluntary insurance, except for the contributions specified in Art. 255, 263 and 291 of the Tax Code of the Russian Federation;
g) in the form of contributions for non-state pension provision, except for the contributions specified in Art. 255 of the Tax Code of the Russian Federation;
i) in the form of interest accrued by the taxpayer-borrower to the creditor in excess of the amounts recognized as expenses for tax purposes in accordance with Art. 269 of the Tax Code of the Russian Federation and other expenses.
In accordance with the rules for maintaining tax accounting (Art. 318 of the Tax Code of the Russian Federation), the division of expenses is carried out into indirect costs and direct costs.
Direct costs may include, in particular:
- material costs, determined in accordance with paragraphs. 1 and 4, clauses 1 of Art. 254 of the Tax Code of the Russian Federation;
- the cost of remuneration of personnel involved in the production of goods, performance of work, provision of services;
- the amounts of the unified social tax charged on the indicated amounts of labor costs;
- the costs of compulsory pension insurance, going to finance the insurance and funded parts of the labor pension, accrued on the specified amounts of labor costs;
- the amount of accrued depreciation on fixed assets used in the production of goods, works, services.
Indirect costs include all other amounts of production and sales costs incurred by the taxpayer during the reporting (tax) period. In a similar manner, non-operating expenses are included in the expenses of the current period.
Indirect expenses also include expenses incurred by a taxpayer during previous reporting (tax) periods and formed certain groups of expenses, some of which, in accordance with the requirements of Chapter 25 of the Tax Code of the Russian Federation, are included in expenses of the current period (in particular, expenses associated with the development of natural resources, R&D costs).
Methods for recognizing income and expenses under the cash method and the accrual method (Articles 271 - 273 of the Tax Code of the Russian Federation)
In accordance with Art. 271 of the Tax Code of the Russian Federation for profit tax purposes, income and expenses are recognized on an accrual basis or on a cash basis (Appendix B).
The organization has the right to determine the date of receipt of income (expense) on a cash basis, if on average for the previous four quarters the amount of proceeds from the sale of goods, works, services excluding VAT did not exceed 1 million rubles. for each quarter. In other cases, the organization is obliged to use the accrual method that is less profitable in terms of optimizing tax liabilities.
Example
The organization in the previous year had the following revenue indicators: in the first quarter - 600,000 rubles, in the second quarter - 1,200,000 rubles, in the third quarter - 1,400,000 rubles, in the 4th quarter - 300,000 rubles. On average, over four quarters, revenue will be 875,000 rubles. (600000 + 1200000 + 1400000 + 300000): 4. Therefore, in the current year the organization has the right to apply the cash method.
Cash method- this is a method in which income (expenses) are recognized as such in the reporting (tax) period in which they were actually received (paid).
This definition in relation to costs is conditional, since in some cases they are associated with the presence of additional grounds. In other words, a different condition is added to the obligatory fact of payment. The procedure for applying the cash method is established by Art. 273 of the Tax Code of the Russian Federation.
Cannot determine income and expenses on a cash basis:
- companies with an average revenue for the previous four quarters of more than 1 million rubles. for each quarter;
- participants in a property trust agreement or a simple partnership agreement (clause 4 of article 273 of the Tax Code of the Russian Federation).
Accrual method- this is a method in which income (expenses) are recognized as such in the reporting (tax) period in which they occurred (to which they relate), regardless of the actual receipt (actual payment) of funds or another form of payment (clause 1 Art.271 of the Tax Code of the Russian Federation).
The procedure for determining the tax base for income tax (Article 247 of the Tax Code of the Russian Federation)
The tax base for income tax is the monetary expression of taxable profit (clause 1 of article 247 of the Tax Code of the Russian Federation). Profit is the difference between the income and expenses of the organization (Article 247 of the Tax Code of the Russian Federation).
If profits are taxed at different rates, then the tax base for each group of profits is determined by the taxpayer separately. In relation to certain specific operations and groups of organizations, the tax base is determined taking into account the established features. The taxpayer shall keep separate accounting records of income (expenses) on operations for which a different from the general procedure for accounting for profit and loss is provided (Articles 275.1, 276, 278, 279, 280, 304, 323 and 268 of the Tax Code of the Russian Federation).
When determining the tax base, the profit subject to taxation is determined on an accrual basis from the beginning of the tax period. At the same time, income and expenses related to activities that are not taxed on profit are not taken into account in the composition of income and expenses of taxpayers. Income and expenses from non-taxable activities must be accounted for separately, i.e. separate accounting should be kept.
The income and expenses of the taxpayer are recorded in cash when calculating the tax base. Income from sales received in kind (including barter transactions) are accounted for, unless otherwise specified, based on the transaction price, taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation. If income is less than expenses (that is, you have received a loss), the tax base is zero (paragraph 1, clause 8, article 274 of the Tax Code of the Russian Federation). At the same time, losses incurred by the taxpayer in the tax period are accepted for tax purposes in the manner prescribed for the transfer of losses to the future (Article 283 of the Tax Code of the Russian Federation).
Based on the analysis of Art. 283 of the Tax Code of the Russian Federation, the following rules for the transfer of losses to the future can be distinguished:
- it is allowed to take into account losses incurred by organizations in subsequent tax periods, but only when the size of the tax base is positive;
- the transfer of loss to the future is carried out within ten years following the tax period in which this loss was received;
- the total amount of the transferred loss in any reporting (tax) period is established within the entire taxable tax base without restrictions;
- a loss not carried over to the next next year can be carried forward in whole or in part to the next year out of the next nine years, subject to the first three rules;
- if the taxpayer incurred losses in more than one tax period, the transfer of such losses to the future is made in the order in which they were incurred, subject to the above rules;
- in the event of reorganization, the successor taxpayer has the right to reduce the tax base in the manner and on the conditions provided for by the above rules, by the amount of losses incurred by the reorganized organizations prior to the reorganization.