Taxpayers who have reporting period(quarter) the so-called 5 percent rule is fulfilled, they have the right not to distribute the incoming “general” VAT, but to fully accept it for deduction.

Let's look at how to use this right in 1C using an example.

How to use the right to apply the 5 percent rule in 1C?

Analytics when maintaining separate accounting

When setting the accounting policy settings for maintaining separate accounting of incoming VAT according to PDF accounting methods, in documents with postings to account 19, you must indicate the third subaccount:

• Accepted for deduction– for transactions subject to VAT, i.e. input VAT will be deducted in the general manner;
• Included in the price– for transactions not subject to VAT, i.e. input VAT will be taken into account in the price;
• Blocked until confirmation 0%— for transactions subject to VAT at a rate of 0%, except for the export of non-commodity goods;
• Distributed– for transactions subject to and not subject to VAT. In this case, the input VAT must be distributed, because it is presented for acquisitions that will simultaneously be used in activities subject to and not subject to VAT, for example, office rental.

Compliance with the 5 percent rule

In 1C automatic calculation of compliance 5 percent rule is not produced. The accountant must independently calculate the share of total expenses for the acquisition and sale of goods (works, services) that are used in transactions not subject to VAT.

If the share of “non-taxable” expenses is less than 5 percent, then the taxpayer has the right to accept “general” input VAT for deduction in full (clause 4 of Article 170 of the Tax Code of the Russian Federation).

The procedure for determining the share of expenses for VAT-free transactions must be fixed in the Accounting Policy of the Organization, for example, as follows:

Share of total expenses on VAT-free transactions ( ShareRN % ) is determined by the formula:

• Rneobl– expenses directly related to VAT-free transactions;
• Rkosv– the amount of general (indirect) expenses that cannot be attributed only to taxable or non-VAT-taxable transactions;
• VNeobl– revenue (amount) from VAT-free transactions;
• In general - total revenue excluding VAT;
• Rotosh– the total amount of total expenses.

The basis for allocating input VAT to total expenses is revenue.

Let's present the data according to the example in the table.

Let's calculate the share of total expenses for VAT-free transactions by substituting the values ​​in the formula set out in the organization's Accounting Policy.

The share of total expenses on VAT-free transactions amounted to 2.24%, which is less than 5%. Therefore, the 5% rule is satisfied in a given quarter.

As stated above, if the share of “non-taxable” expenses is less than 5 percent, then the entire total input VAT can be deducted in full (clause 4 of Article 170 of the Tax Code of the Russian Federation).

Let's look at an example of what needs to be done in 1C so that all incoming VAT for distribution is included in the VAT accepted for deduction.

Changing the method of accounting for VAT when implementing the 5 percent rule

By doing 5 percent rules must be filed quarterly document VAT distribution In chapter Operations – Closing the period – Regular VAT operations – Create button according to the following algorithm:

• automatically fill out the document using the button Fill ;

• manually on the tab Revenues from sales clear the revenue amount in the field not subject to VAT (not UTII) and leave the revenue amount only in the field subject to VAT .

Then on the tab Distribution Input VAT will not be distributed in proportion to taxable and non-taxable transactions, and for the entire amount of input VAT, the method of accounting for VAT will be changed from Distributed on Accepted for deduction .

Postings according to the document

Acceptance of VAT for deduction of total input VAT

After completing the document VAT distribution Input VAT is accepted for deduction using the document in the section Operations - Closing the period - Regular VAT operations.

Postings according to the document

Result document Generating purchase ledger entries can be checked through the report Book of purchases in the Reports - VAT section. PDF

After completing the document Generating purchase ledger entries the entire amount of 100% input VAT on “general” expenses is accepted for deduction.

For a long time the norm Tax Code Russian Federation on the possibility of not keeping separate records for VAT when carrying out transactions subject to and not subject to this tax, caused controversy as to whether trading firms could apply it. Thanks to amendments made to the main tax document, this issue has been resolved in favor of taxpayers. But problems remain...

When you can not keep separate records

So, earlier in paragraph 4 of Article 170 of the Tax Code of the Russian Federation it was said that an organization (entrepreneur) has the right not to keep separate records in those tax periods (quarters) when the share of total costs for the production of goods, works, services, property rights, operations realization of personal total production costs. In this case, all amounts of “input” VAT are subject to deduction.

However, this provision dealt only with “production costs,” so the question arose: does the benefit apply to trading companies?

The Russian Ministry of Finance did not object to this. The financiers expressed their opinion on this issue in letters dated May 30, 2011 No. 03-07-11/149, dated January 29, 2008 No. 03-07-11/37. However, this position was not shared by the tax authorities (letter of the Federal Tax Service of Russia dated March 22, 2011 No. KE-4-3/4475).

Since October 1, 2011, this norm has been set out in a new edition. Now 5 percent is calculated from the total amount of aggregate expenses for the acquisition, production and sale of goods, work, services, and property rights.

So trading companies have the full right to apply the benefits.

How to justify your right to benefits

Now let's look at how a trading company can justify that it may not keep separate records.

Proportion calculation

To take advantage of the exemption (that is, to avoid separate accounting), a company or entrepreneur must calculate the proportion to prove that they comply with the specified five percent limit. And this is not easy.

The fact is that paragraph 9 of paragraph 4 of Article 170 of the Tax Code of the Russian Federation is formulated so vaguely that the regulatory authorities have to interpret its provisions (for example, in the letter of the Ministry of Finance of Russia dated December 29, 2008 No. 03-07-11/387).

So what is total cost? How to determine them, what type of accounting to use?

As follows from paragraph 29 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 28, 2001 No. 5, registers accounting and calculations based on them are accepted by arbitration courts as evidence for determining expenses for the five percent limit.

Taking into account this clarification, decisions of the FAS of the East Siberian District dated June 7, 2005 No. A74-3752/04-K2-F02-2489/05-S1 and the FAS of the North-Western District dated November 25, 2004 No. A66-563 were issued -04.

The financiers also came to the conclusion (letter dated April 1, 2009 No. 03-07-07/26) that in this situation one should be guided by paragraphs 5 and 7 of PBU 10/99 “Organization expenses” (approved by order of the Ministry of Finance of Russia dated May 6, 1999 city ​​No. 33n). It says that the costs common types activities form:

Expenses associated with the acquisition of raw materials, materials, goods and other inventories;

Expenses arising directly in the process of processing inventories for the purposes of production, performance of work and provision of services and their sale, as well as the sale of goods;

Expenses for the maintenance and operation of fixed assets and other non-current assets, as well as for maintaining them in good condition;

Commercial, administrative expenses, etc.

That is, we can say that total production costs must be calculated according to accounting rules.

At the same time, as indicated in the letter of the Ministry of Finance of Russia dated December 29, 2008 No. 03-07-11/387, when calculating the five percent indicator of total expenses, both direct and other expenses are taken into account.

But there is no specific procedure for distributing costs that cannot be specifically attributed to the sale of goods, works or services that are or are not subject to tax exemption.

Another important point.

If in the company's accounting general running costs are not distributed, but are immediately written off to financial results, then for the purpose of determining the five percent limit, you will have to make a special calculation for their distribution.

Calculation period

Paragraph 4 of Article 170 of the Tax Code of the Russian Federation talks about expenses during the tax period. Currently, the tax period for VAT is a quarter.

>|The tax period for VAT for tax agents is also a quarter (Article 163 of the Tax Code of the Russian Federation).|<

Since value added tax is not calculated on an accrual basis from the beginning of the year, expenses to determine the five percent limit must be established for each quarter separately.

At the same time, the provisions of paragraph 4 of Article 170 of the Tax Code of the Russian Federation apply only to the VAT tax period in which goods, works or services, the cost of which contains an “input” tax, were capitalized.

Therefore, if the “input” VAT on the acquired asset was fully deducted, and in the subsequent tax period part of this asset is used in operations not subject to VAT, then the corresponding part of the “input” tax must be restored for payment to the budget.

The right not to maintain separate accounting for an acquired asset appears only at the moment when the share of total expenses for the acquisition, production and sale of goods (works, services), property rights, transactions for the sale of which are not subject to taxation, does not exceed 5 percent of the total amount of total expenses for acquisition, production and sale. This right does not apply to subsequent tax periods.

Now on to the positive side.

Let us remind you that if goods, works or services are used exclusively in activities not subject to VAT, then the “input” tax on them is fully taken into account in their cost.

But if a company has met the five percent limit, it has the right to deduct the entire amount of “input” VAT for a given tax period, including the part that relates to the above goods, works or services. This conclusion was confirmed in the letter of the Federal Tax Service of Russia dated November 13, 2008 No. ШС-6-3/827@.

Example.
Rodnaya Storona LLC is engaged in wholesale trade. In the first quarter of 2012, the company received revenue:

RUB 12,400,000 (including VAT - 1,891,525 rubles) - from the sale of goods subject to VAT;

RUB 1,200,000 - from the sale of goods not subject to VAT.

Cost of goods sold (excluding VAT) was:

RUB 7,356,000 - for goods on which VAT is paid;

760,000 rub. - for goods on which VAT is not paid.

The Company maintains separate accounting of costs related to turnover subject to and not subject to VAT.

According to the company, direct costs associated with the sale of taxable goods in the first quarter of 2012 amounted to 750,000 rubles. (without VAT). Direct costs related to the sale of VAT-exempt goods - RUB 96,000.

General business expenses that cannot be directly attributed to the sale of taxable or non-taxable goods will be equal to 950,000 rubles. (excluding VAT).

As a method for distributing general business expenses for the purpose of determining the five percent limit, the company chose to calculate the share of revenue from the sale of tax-free goods in the total volume of sales of goods excluding VAT.

This is enshrined in the accounting policies of a trading organization for tax purposes.

Thus, the calculation of the limit will be as follows.

First, it is necessary to establish the share of sales of non-taxable goods in the total cost of goods sold.

It is equal to 11.42 percent (RUB 1,200,000 / (RUB 12,400,000 - RUB 1,891,525) x 100).

Secondly, it is necessary to distribute general business expenses attributable to the sale of goods not subject to VAT, in accordance with their share in the total sales revenue.

Their amount is 108,490 rubles. (RUB 950,000, 11.42%).

Thirdly, you should find the amount of general business expenses attributable to the sale of goods subject to VAT - 841,510 rubles. (950,000 - 108,490).

Fourthly, the total costs associated with sales are calculated for the first quarter of 2012. Their total amount is 9,912,000 rubles. (7,356,000 + 760,000 + 750,000 + 96,000 + 950,000), including:

Expenses associated with the sale of goods subject to VAT - RUB 8,947,510. (7,356,000 + 750,000 + 841,510);

Expenses associated with the sale of VAT-exempt goods - RUB 964,490. (760,000 + 96,000 + 108,490).

It is 9.73 percent (RUB 964,490 / RUB 9,912,000 H 100).

That is, the share of total expenses on the sale of goods not subject to VAT exceeds 5 percent of the company’s total total expenses for a given tax period. Therefore, she will have to distribute the amount of “input” VAT between taxable and non-taxable transactions.

Such documentation of activities as separate accounting of VAT is required for the most accurate determination of the total share of “input” VAT that is accepted for deduction. These procedures should be carried out exclusively by professionals, since possible mistakes can lead to tax authorities removing all deductions and adding tax.

Almost often, commercial enterprises work with products subject to and exempt from VAT. Determining the amounts for these transactions will not be so easy.

Separate VAT accounting should be carried out strictly according to outgoing VAT, that is, the price of shipped products, taxable and exempt from tax. It is also important to take into account the input VAT, which is already included in the price of units of services or goods purchased for taxable and fully exempt transactions.

For trade transactions that are exempt from tax, as well as input VAT, are necessarily included in the cost of all goods sold, property rights and services.

There is no special methodology for maintaining separate VAT accounting. You can use any procedure that will effectively distinguish between all exempt and taxable transactions. Accounting for such transactions must be kept in different sub-accounts that are opened to standard accounting accounts. The procedure for maintaining documents, selected according to the parameters and features of the activity performed, must be enshrined in the general accounting policy of the organization.

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If you do not maintain proper separate accounting, tax officials will quickly restore the entire input VAT on such units that were purchased for use in non-taxable and taxable transactions. This will automatically lead to shortfalls in VAT, and the tax office usually charges fines and penalties on them.

5 percent VAT rule: calculation example

Exemption from maintaining separate accounting is permissible only in a situation where during the quarter the total share of expenses for the production and purchase of goods did not exceed 5% of all total expenses aimed at the production or sale of goods. In this situation, input VAT, which is presented by suppliers in a particular quarter, can be accepted for deduction.

Let’s say that the company’s direct expenses on operations that are taxed amounted to 10 million rubles, of which 600 thousand rubles were non-taxable. 3 million rubles were spent on general economic needs.

The calculation is carried out as follows:

The ratio between expenses will be equal to 4.6% (600,000 rubles: (10,000,000 rubles +3,000,000 rubles) × 100%). This amount less than 5%, accordingly the company has every right to keep separate records of “input” VAT And deduct all of your input VAT for the next reporting period.

Separate accounting for export

Here you cannot do without separate accounting. The raw materials used in the process of export operations, that is, their amount, are presented to the tax authorities in a separately drawn up declaration with a zero rate. There is no legally established methodology for determining input VAT on exported goods. It is chosen independently and is necessarily enshrined in orders relating to accounting policy.

If the company did not know whether it would export products and accepted standard input VAT on a general basis, then the tax paid can be restored. To do this, you will need to submit an updated declaration form and pay the tax amount.

Tax policy of separate accounting in the presence of tax-free transactions

It is mandatory to take into account the reasons under which such transactions are carried out that are not taxed. These could be things like:

• All preferential treatment related to taxation;
• The right to exemption from VAT on the basis of insufficient revenue;
• The presence of taxation transactions where Article 149 of the Tax Code of the Russian Federation is not provided;
• Sales of goods or services outside the country.

In cases where there have been no sales of services or goods that are not taxed for a certain period of time, many entrepreneurs wonder whether it is necessary to keep separate VAT records in this case? The Ministry of Finance takes the position that the complete absence of transactions on exempt units of goods from value added tax is the basis for exemption from separate accounting.

If an organization simultaneously carries out transactions that are taxed and not subject to VAT, it is obliged to carry out separate accounting for tax amounts. This is provided for in Art. 170 Tax Code of the Russian Federation. Collection amounts for taxable transactions are accepted for deduction. In another situation, you have to draw up proportions for each tax period according to the amounts of goods shipped. The “5 percent” VAT rule has been developed specifically for these purposes. An example of calculating the amount of tax in different situations will be discussed in detail below.

The essence

Trade organizations often have to combine the general tax regime with single tax. The presence of export operations is also the basis for separate accounting. The reason is that when exporting, VAT is deducted on the last day of the month when documents were provided confirming the use of a zero rate for such an operation. The procedure for calculating tax on these transactions is determined by the accounting policy.

Let us consider in more detail how such organizations carry out separate

To reflect the distribution of the tax amount in the accounting system, subaccounts to account 19 are used. The distribution is carried out in the period in which the goods were registered. Therefore, the proportion is carried out according to comparable indicators - the cost of the goods with and without VAT. Double accounting is also carried out if the organization has operations that are carried out outside the Russian Federation.

Example 1

Let's consider a standard situation. During the quarter, the company shipped products worth 1.2 million rubles, including taxable products - 0.9 million rubles. The amount of tax presented by suppliers is 100 thousand rubles. Since the cost of the goods, which is not subject to taxation, is 250 thousand rubles, the calculated coefficient is 0.75. Therefore, you can deduct not 100 thousand rubles, but only 75 thousand rubles. (100 * 0.75). And only 25% can be taken into account in the cost of purchased goods: 1.2 * 0.25 = 0.3 million rubles.

Calculations

How to distribute input VAT? An enterprise may have fixed assets and intangible assets registered in the first month of the quarter. In such cases, the proportions are determined based on specific gravity the cost of shipped goods manufactured on a new machine, in the total amount of sales for the month in which the object was accepted for accounting.

The cost of services for providing a loan is calculated based on the amount of income in the form of accrued interest. The exception is an interest-free loan, the cost of which is equal to zero. Such operations do not affect the proportion

When calculating the Central Bank, the difference between the sale price and acquisition costs is calculated. At the same time, non-VAT-taxable transactions must also be taken into account in the cost of work.

Example 2

During the quarter, the company sold goods worth 2 million rubles, including 1,750 thousand rubles. taxable and 250 thousand rubles. not taxable. Suppliers presented a deduction of 180 thousand rubles.

The coefficient for subsequent calculations is 0.875. The following can be deducted from purchased goods: 180 * 0.875 = 157.5 thousand rubles. The remaining 22.5 thousand rubles. should be reflected in the cost of goods.

5% rule

For those periods when the share of expenses on non-taxable transactions is less than 5% of the total amount of expenses, the company may not carry out separate accounting. The procedure for calculating the total amount of expenses when calculating the barrier is not established by law. An enterprise can develop its own justified methodology and consolidate it in its accounting policies.

When calculating the share, all sales excluding VAT are taken into account: non-taxable transactions, sales on imputation, expenses for transactions outside the Russian Federation. As for the first group, both direct and general expenses are taken into account. That is, you need to add up all the costs, add VAT on general business expenses in the appropriate proportion, then divide the resulting amount by the amount of costs.

The “5 percent” rule for VAT, an example of the calculation of which will be presented below, cannot be applied to export transactions. This is provided for in Art. 170 NK. For such transactions the VAT rate is 0%. That is, if:

• the barrier has not been reached;
• the enterprise has export operations;

need to carry out separate

The 5 Percent Rule: An Example

The enterprise's direct costs for taxable operations in the second quarter amounted to 15 million rubles, and for non-taxable ones - 750 thousand rubles. General business expenses - 3.5 million rubles. Accounting policy provision is made for the distribution of expenses in proportion to revenue, which in the reporting period amounted to RUB 21 million, respectively. and 970 thousand rubles.

General business expenses for non-taxable transactions: 3.5 * (0.97 / (21 + 0.97))) = 154.529 thousand rubles, or 4.7%. Since this amount does not exceed 5%, the company can deduct the entire input VAT for the second quarter.

Accounting algorithm

To understand what VAT rate should be applied to goods and how to determine the amount of input tax, you can use the following sequence of actions:

1. Calculate the amount of VAT claimed that can be deducted. If the purchased goods can be directly attributed to activities exempt from taxation, then VAT is included in its cost. In other cases, the tax amount is deducted.

2. At the next stage, you need to apply the “5 percent” rule for VAT, an example of the calculation of which was presented earlier. First, the amount of expenses for non-taxable transactions is determined, then the total costs are calculated and the formula is applied:

% neoreg. oper. = (Normal / Total) x 100%.

If the resulting ratio exceeds 5%, then separate accounting of the amounts should be carried out.

3. Tax amounts with and without VAT are calculated, then they are summed up and the ratio is determined:

% calc. = (Sum of region / Sum of total) * 100%.

Tax = VAT charged * % deducted.

4. The marginal cost is calculated:

VAT limit = VAT claimed - VAT deducted

Cost = (Amount of goods shipped, but not taxable / Total sales volume) * 100%.

Arbitrage practice

A complete interpretation of “total expenses” is not provided in the Tax Code. Based on definitions in economic dictionaries, this term can be understood as the total cost of production of goods incurred by the taxpayer himself. The Ministry of Finance explains that when calculating this value, direct and general expenses for conducting activities are taken into account.

Judicial practice also does not allow us to draw an unambiguous conclusion regarding when separate VAT accounting should be carried out. The 5 percent rule, an example of which was discussed earlier, applies exclusively to manufacturing enterprises. According to the judges, trading companies cannot carry out separate tax accounting.

Transactions with securities raise even more questions. In particular, some judges, referring to Art. 170 of the Tax Code, they claim that when selling such assets, the 5% rule can be used. At the same time, the cost of purchasing securities does not affect the proportion. That is, almost always the amount of expenses will be less than 5%, and the payer will be released from the obligation to keep double records.

In other court decisions there is a reference to PBU 19/02, which states that all transactions with the Central Bank in NU and BU relate to financial investments. In addition, organizations do not have expenses associated with the formation of the cost of such assets. That is, income from such transactions is exempt from taxation. Therefore, the organization must submit full VAT for deduction.

Transactions on the sale of a legal entity’s share in the management company of another organization are not subject to VAT. Therefore, in such cases double counting is always carried out.

Example 3

Before you provide cash as collateral, the company hired auditors to check financial condition borrower. The cost of the company's services amounted to 118 thousand rubles. VAT included. Loan amount - 1 million rubles. The cost of financial investments is determined based on the accounting policies of the lender. If it does not provide for the use of the 5% rule, then VAT for auditor services should be taken into account in the cost of the financial investment. In this case, general business expenses will have to be distributed. If there is a reservation, then all amounts are accepted for deduction.

The issue of accounting for input VAT in transactions with debt securities remains open. Using a preferential scheme for transactions with bills of exchange is risky. The Federal Tax Service will most likely challenge such operations, and then they will have to prove their case in court.

Accounting

From all of the above, we can draw the following conclusion: it is better to determine the method of calculating expenses and indicate it in the accounting policy. In this case, you need to specify the entire list of costs that relate to operations exempt from taxation, and the procedure for their calculation:

• allocate a position on staff for a responsible employee;
• prescribe the procedure for recording time for making calculations;
• determine the principle of distribution of the rental amount, utilities for such operations (for example, proportionally).

To collect information on expenses not related to production, account 26 is used. It can reflect management, general business expenses, depreciation, costs of information, auditing, and consulting services.

VAT or UTII for individual entrepreneurs

To begin with, it is worth noting that entrepreneurs who are single tax payers do not pay VAT on transactions that are recognized as taxable. At the same time, the Tax Code states that organizations that carry out transactions subject to VAT and UTII are required to maintain double accounting of property, liabilities and transactions. For such individual entrepreneurs, the VAT accounting procedure is regulated by the Tax Code. It also spells out the work procedure of exporters located on UTII for individual entrepreneurs.

Separate accounting allows you to correctly determine the amount of tax deduction: in full or in proportion. The code states that the procedure for distributing such operations must be prescribed in the accounting policies of the organization. The above ratio is calculated based on the cost of non-taxable goods sold in total sales. Let's consider another problem in which the "5 percent" rule for VAT is presented.

Calculation example. An enterprise engaged in wholesale and retail trade (paying VAT and UTII) must carry out double tax accounting. Even if the work, equipment, real estate are intended for “imputed” activities, VAT on them is not deductible. If the services received or real estate purchased are intended to conduct transactions subject to VAT, then the tax charged is taken into account in full. If the purchased equipment will be used on “two fronts” at once, then a proportion must be drawn up. One part of the tax should be deducted, and the second part should be included in the cost of goods.

Proportion

The Tax Code specifies the specifics of accounting for ratios for transactions that are exempt from taxation. The cost of services for providing loans and repo transactions is taken into account in the amount of interest income accrued by the taxpayer. When calculating the value of shares, bonds, other valuable papers the amount of income is calculated in the form of a positive difference between the selling price and the costs of purchasing such assets. If the market price is lower than the cost, then the resulting value will not be taken into account.

Example

The plant produces bicycles and strollers for disabled people, which are not subject to VAT. The accountant reflects production costs on sub-accounts opened to account 20. For the first quarter of 2014, the amount of expenses amounted to 10 million rubles: 600 thousand for strollers and 9.4 million rubles. - on bicycles. Additionally, general business expenses were incurred in the amount of 2 and 3 million rubles. respectively.

First, let's find the ratio of expenses:

0.6\(10+2+3) = 0.04, or 4%.

The accountant may not keep separate records of input tax and present the entire amount for deduction. But in the VAT return you need to indicate the revenue and the full cost of preferential products.

Or when separate accounting may not be maintained

Let's continue the discussion of separate VAT accounting. This time we will tell you in which cases it is not necessary to separate the “input” VAT. After all, this opportunity greatly simplifies the work of an accountant. But its practical application reveals a number of ambiguities.

When to use separate accounting

Chapter 21 of the Tax Code does not define what separate accounting is. But the accountant understands that its maintenance requires special subaccounts and additional calculations. This means it increases the labor costs of the accounting department. Therefore, the question of whether it is possible to avoid separate accounting is so important. The legislation provides such an opportunity. Let's figure out how to use it.

The obligation to separately record transactions is established by paragraph 4 of Article 149 of the Tax Code for taxpayers who, along with transactions subject to taxation, also carry out transactions that are exempt from taxation. An exhaustive list of “preferential”, that is, not subject to taxation, transactions is presented in paragraphs 1–3 of this article. In addition, separate accounting is necessary in the conditions of combining the payment of UTII with the general taxation regime (clause 7 of Article 346.26 of the Tax Code of the Russian Federation). Separate accounting should be used as when forming tax base for VAT, and when taking into account the “input” tax (clause 1 of Article 166, clause 4 of Article 170 of the Tax Code of the Russian Federation).

However, tax legislation does not use the concept of “separate accounting” in connection with sales, the place of which is not recognized as the territory of the Russian Federation, as well as in cases in which there is no object of taxation (subclause 2, 4, clause 2, article 170 of the Tax Code of the Russian Federation). Therefore for these business transactions the rules for separate accounting of “input” VAT, prescribed in paragraph 4 of Article 170 of the Tax Code, should not be extended.

But financiers think differently. In letters dated June 6, 2008 No. 03-07-08/145, dated April 28, 2008 No. 03-07-08/104, etc., the Ministry of Finance of Russia equates sales outside the territory of the Russian Federation to sales operations that are not subject to taxation . One can argue with this opinion. After all, tax legislation does not allow for a broad interpretation (Clause 5, Article 3 of the Tax Code of the Russian Federation). Due to the literal wording of subparagraph 1 of paragraph 1 of Article 146 of the Tax Code, sales outside the territory of the Russian Federation take place “not recognized as an object of taxation.” And the concept of transactions “not subject to taxation” clearly originates from Article 149 of the Tax Code.

"Saving" clause

The ninth paragraph of paragraph 4 of Article 170 of the Tax Code allows you to get rid of separate accounting of “input” VAT. But please note that it is addressed to taxpayers. For this reason, the said paragraph does not apply to UTII payers. After all, these business entities are not considered VAT payers due to the direct indication of paragraph 4 of Article 346.26 of the Tax Code. This point of view is reflected in the letter of the Ministry of Finance of Russia dated July 8, 2005 No. 03-04-11/143 and in the letter of the Federal Tax Service of Russia dated May 31, 2005 No. 03-1-03/897/8. But the judges do not share the opinion of the officials (resolutions of the Seventeenth Arbitration Court of Appeal dated July 18, 2008 No. 17AP-4390/2008-AK, FAS Volga District dated February 5, 2008 No. A65-28667/06-SA2-11, FAS North Western District dated December 7, 2007 No. A05-5928/2007, etc.).

As a result, without the risk of tax disputes, only taxpayers using VAT exemption benefits have the right to apply this rule. And even then only under certain conditions. Unfortunately, these conditions must be confirmed after each tax period according to VAT, that is, quarterly.

So, separate accounting of “input” VAT may not be carried out if the costs of carrying out preferential operations do not exceed 5 percent of the total production costs. In this case, the taxpayer can deduct the entire “input” VAT. There is no need to include VAT in the cost of goods, works, or services. This means that there is no need to distribute the “general” VAT by calculation between taxable and non-taxable transactions. But no one exempted taxpayers from separate accounting of income.

The following immediately catches your eye. The final distribution of expenses by type of activity will be determined at the end of the quarter. Of course, it is not known in advance whether the specified 5 percent ratio between expenses will be met. Therefore, it is risky to deliberately refuse to separately account for “input” tax amounts. If it turns out that the 5 percent threshold is exceeded, then expense accounting for the quarter will need to be restored. And companies paying monthly advance payments based on the actual profit received (clause 2 of Article 286 of the Tax Code of the Russian Federation) will have to submit corrective declarations. Their expenses will increase due to non-refundable tax amounts.

Accounting policies are under control

It is the right of the taxpayer not to apply separate accounting if the 5 percent criterion is met. This wording means that the legislator provides the taxpayer with the opportunity to independently choose the method of accounting for “input” VAT. Your choice must be fixed in the accounting policy for tax purposes (clause 2 of article 11 of the Tax Code of the Russian Federation). What if the accounting policy does not stipulate that the taxpayer does not maintain separate accounting until the 5 percent expense ratio is achieved? Then the accountant should not use this rule (clause 12 of Article 167 of the Tax Code of the Russian Federation).

The tax period for VAT is a quarter. The question is, is it possible to start applying the 5 percent criterion not only from the first quarter, but from the second or subsequent quarters? This question should be answered in the negative. The fact is that with separate accounting, non-refundable VAT amounts are taken into account when taxing profits. But the accounting policy for income tax must be established for a year - in accordance with the tax period for this tax (Article 313 of the Tax Code of the Russian Federation). Otherwise it won't be consistent.

But what if non-taxable transactions arose during the year, when the order on accounting policies has already been submitted to tax office? In this case, the company has the right to make an addition to its accounting policies. Based on paragraph 16 of PBU 1/98 “Accounting policy of the organization” (approved by order of the Ministry of Finance of Russia dated December 9, 1998 No. 60n), approval of the method of accounting for newly emerged facts economic activity is not considered a change in accounting policy.

Is trading activity manufacturing?

Taking a closer look, we will find that a 5 percent criterion has been introduced for taxpayers engaged in the production of goods (works, services) and property rights. What about taxpayers carrying out trading operations?

The Ministry of Finance of Russia, in letter dated January 29, 2008 No. 03-07-11/37, agreed that this rule can also be applied to trading activities. True, this is the first time such a position has been officially announced.

Meanwhile, the Russian Ministry of Finance itself, in a letter dated August 7, 2007 No. 03-02-07/2-138, indicated that its letters on the application of tax legislation are of an informational and explanatory nature, and not of a regulatory nature. The interpretation of financiers does not prevent tax authorities from being guided by the norms of legislation on taxes and fees in a different sense.

For this reason, “traders”, including individual entrepreneurs, you should not ignore negative arbitration practices. Thus, in the resolution of the Federal Antimonopoly Service of the Central District dated July 18, 2007 No. A48-602/06-18, the refusal to separate accounting was declared unlawful, since the organization was not a manufacturer of goods, but only sold them. This decision was supported by the Supreme Arbitration Court of the Russian Federation in its ruling dated April 30, 2008 No. 3302/08. A similar conclusion regarding retail trade is contained in the resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 14, 2007 No. A82-6804/2005-99.

The author agrees with the position of the arbitrators and considers it necessary to note the following. Paragraph 1 of Article 11 of the Tax Code establishes that the meanings of concepts not disclosed in tax legislation should be sought in other regulatory sources. First, let's turn to the All-Russian Classifier of Species economic activity OK 029-2001. It follows from it that wholesale and retail trade must be distinguished from production, since these areas are classified under different sections of OKVED. A similar conclusion can be reached by comparing paragraphs 2 and 4 of PBU 5/01 “Accounting for inventories” (approved by order of the Ministry of Finance of Russia dated June 9, 2001 No. 44n). Finally, according to the Instructions for the Application of the Chart of Accounts, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n, production costs are reflected in accounting accounts numbered 20–29. And in connection with trade operations, “production” accounts are not used. Trading costs are reflected in account 44 “Sales expenses”. But the most important thing is that paragraph 1 of Article 39 of the Tax Code does not allow identifying trade operations with production, that is, the provision of services.

Comparing expenses

At the end of the tax period, the accountant will have to compare the total amount of production expenses and the amount of production expenses directly attributable to preferential sales operations. According to the author, “mixed” expenses that support production of taxable and non-taxable activities do not need to be distributed for the purposes of the upcoming calculation.

This conclusion follows from paragraphs one through four of paragraph 4 of Article 170 of the Tax Code in their interrelation. Indeed, the costs of producing preferential products are nothing more than the cost of resources (goods, works, services, property rights) used to carry out tax-free transactions. In paragraph two, the legislator clearly states that they must be direct. There is no reason to go beyond this approach in order to calculate the share specified in paragraph nine of this paragraph. Paragraph three, in turn, talks about the direct costs of carrying out taxable transactions. And in paragraph four of paragraph 4 of Article 170 of the Tax Code we are talking about indirect costs. In total, such costs are precisely the total costs of production. The clarification “total costs” combines costs for the production of different types of products (goods, works, services, property rights), and does not at all require the preliminary distribution of indirect costs to direct cost items.

An additional argument in favor of this conclusion is the requirement for rational accounting, enshrined in paragraph 7 of PBU 1/98 “Accounting Policy of the Organization” (approved by order of the Ministry of Finance of Russia dated December 9, 1998 No. 60n). Indeed, in our case we are talking about the formation of an indicator below the generally accepted threshold of materiality.

As a result, expenses for non-taxable transactions are selected as direct expenses in analytical accounting under account 20 “Main production”, as well as under accounts 21 “Semi-finished products”, 23 “ Auxiliary production" and 29 "Service production and farms" - if in the future they are not subject to closure to account 20 or to each other. General expenses for production are formed taking into account indirect costs, for the reflection of which accounts 25 “General production expenses” and 26 “General business expenses” are intended.

Example 1

The plant produces bicycles and wheelchairs for the disabled. The sale of the latter is exempt from taxation (subclause 1, clause 2, article 149 of the Tax Code of the Russian Federation, Decree of the Government of the Russian Federation of December 21, 2000 No. 998). Accounting reflects direct costs for the production of these products in the subaccounts “Bicycles” and “Wheelchairs” of account 20. For the fourth quarter of 2008, direct costs for production amounted to 10,000,000 rubles, of which for wheelchairs - 600,000 rubles, according to bicycles – RUB 9,400,000. In addition, general production expenses were incurred in the amount of RUB 2,000,000. and general business expenses in the amount of RUB 3,000,000.

Based on these data, the control ratio between expenses will be equal to 4% (600,000 rubles: (10,000,000 rubles + + 2,000,000 rubles + 3,000,000 rubles) × 100%). On this basis, the accountant has the right not to keep separate records of “input” VAT in the fourth quarter. He will submit the entire amount of tax presented by suppliers and contractors for deduction.

However, he will show revenue not subject to VAT in section 9 of the value added tax declaration, approved by order of the Ministry of Finance of Russia dated November 7, 2006 No. 136n, under code 1010204. And in column 3 of this section he will reflect the direct cost of preferential products - 600,000 rub. But in column 4 of section 9 there will be a dash.

Now assume that the firm has no direct expenses for non-taxable transactions. In such a situation, the percentage we are interested in will be equal to zero, which is obviously less than 5 percent. This means that it is not necessary to distribute the “input” VAT.

The legislation does not contain clear instructions on the procedure for determining the ratio of expenses for preferential production and total production costs. Therefore, firms have the right to develop their own algorithm for calculating the control ratio

If the control ratio is calculated by a trading company, then its direct costs for non-taxable transactions will be the cost of non-taxable goods sold.

We emphasize that paragraph four of paragraph 4 of Article 170 of the Tax Code requires the distribution of VAT, and not the indirect costs themselves. Meanwhile, a number of experts believe that the costs of preferential transactions should include a share of indirect costs (from accounts 25, 26, and in trade - from account 44). Perhaps the legislation does not contain unambiguous instructions on the procedure for determining expenses, moreover, the conditions of economic activity are infinitely varied. Therefore, we believe that firms have the right to develop their own reasonable approach to calculating the benchmark cost ratio. To avoid disagreements with tax authorities, we recommend that the chosen algorithm be described in detail in the accounting policy.

Please note that the ninth paragraph of paragraph 4 of Article 170 of the Tax Code does not apply to exporters. For the reason that applying a tax rate of 0 percent is not an exemption from taxation.

Expenses in connection with other income

So far we have considered expenses for ordinary activities. What features arise when accounting for transactions that result in other income?

Interest income on loans

Income in the form of interest from loans is exempt from taxation on the basis of subparagraph 15 of paragraph 3 of Article 149 of the Tax Code. In this case, the lender’s activities are qualified as the production of services. However, interest-bearing loans themselves are accounted for as part of financial investments in the same account 58 “Financial Investments”. Based on paragraph 9 of PBU 19/02 “Accounting for financial investments” (approved by order of the Ministry of Finance of Russia dated December 10, 2002 No. 126n), all direct costs for the acquisition of financial investments are included in their initial cost. Thus, in connection with the provision of services to the borrower, the lender has no direct expenses - in the understanding of PBU 10/99 “Costs of the Organization” (approved by order of the Ministry of Finance of Russia dated May 6, 1999 No. 32n) - in principle, there are no. The loan amount is not recognized as an expense. In support of this conclusion, we additionally refer to paragraph 11 of the Accounting Regulations and financial statements in the Russian Federation (approved by order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n). It states that current costs of producing products, performing work and providing services and costs associated with capital and financial investments are accounted for separately.

In the absence of direct costs, the control ratio becomes zero. Therefore, separate accounting may not be maintained. This approach to financial investments was supported by the Federal Antimonopoly Service of the Moscow District in its resolution dated February 29, 2008 No. KA-A40/1094-08. The subject of this trial was, however, not the loans issued, but the bills taken into account by the organization as financial investments. However, in the ruling, the court made a general conclusion regarding all financial investments.

As you can see, the calculation method, in which indirect (general business) expenses for preferential production are not distributed, is beneficial for the taxpayer in a situation with loans.

Example 2

Before lending money, the company attracted audit organization, who performed the analysis financial situation borrower. The cost of auditors’ services is 118,000 rubles, including VAT – 18,000 rubles. Loan amount – 1,000,000 rubles. In such a situation, the initial cost financial investment depends on the accounting policy of the lending company. If it does not provide for the possibility of applying a 5 percent criterion, then VAT on auditor services must be included in the accounting value of the financial investment. At the same time, VAT related to general business expenses will have to be distributed by calculation. And if the 5% ratio clause is present and observed, then all VAT amounts, including those issued by auditors, are accepted for deduction.

Operations with bills

The sale of securities is also not subject to VAT (subclause 12, clause 2, article 149 of the Tax Code of the Russian Federation). But in bill settlements, the question of the need to distribute “general business” VAT still remains debatable (Resolution of the Federal Antimonopoly Service of the Moscow District dated May 7, 2008 No. KA-A40/3538-08). If the company still agrees with the requirement of the Russian Ministry of Finance, reflected in letter dated June 6, 2005 No. 03-04-11/126, then the question is, will it be able to use the 5 percent criterion? The author believes that paragraph nine of paragraph 4 of Article 170 of the Tax Code of the Russian Federation in connection with bill transactions is risky, although the limited arbitration practice has so far developed favorably (for example, the resolution of the Federal Antimonopoly Service of the Moscow District dated October 8, 2007 No. KA-A40/9013-07 ). This provision is addressed to taxpayers carrying out preferential production. However, in the circulation of bills, unlike the issuance of loans, no proceedings are seen, and the judges agree with this.

Is it possible to consider the sale of bills of exchange as trading in preferential goods? The answer, according to the author, should be negative. A bill of exchange is a document certifying the property right of the bill holder (Resolution of the Central Executive Committee of the USSR and the Council of People's Commissars of the USSR dated August 7, 1937 No. 104/1341 “On the entry into force of the provision on bills of exchange and promissory notes”). But in tax legislation, property rights are not recognized as goods (clauses 2, 3 of Article 38 of the Tax Code of the Russian Federation).

Let's sum it up

Refusal of separate accounting of “input” VAT reduces tax burden firms, which entails losses for the budget. Indeed, savings in connection with income tax expenses are recognized at a tax rate of 24 percent, while VAT is deducted at full amount. That's why tax authorities carefully monitor the validity tax benefit due to the application of the 5 percent threshold. But we have seen that this norm contains a number of ambiguities. Therefore, the situation requires informed decisions. In itself, the 5 percent criterion for the VAT accounting procedure is similar to the principle of materiality in accounting. The same 5 percent threshold is established for it (clause 1 of the Instructions on the procedure for drawing up and presenting financial statements, approved by Order of the Ministry of Finance of Russia dated July 22, 2003 No. 67n). This similarity is noted in the resolution of the Federal Antimonopoly Service of the Ninth Arbitration Court of Appeal dated May 4, 2008 No. 09AP-4395/2008-AK.