Factoring as a tax planning tool. VAT taxation of factoring operations

Due to the difficult economic situation in the market today, factoring agreements are being concluded more and more often. For a client selling receivables to a bank, a factoring agreement is a profitable way to replenish working capital for the further development of his company. For the bank, a transaction to finance a client under the assignment of the right of claim is also profitable, since it receives income in the form of a commission and related payments.

Publication

The essence of the agreement, why it is concluded, who, etc.

There is an opinion that a factoring agreement is the same assignment agreement, only the receivables are purchased not by a third-party organization, but by a bank. This is not entirely true. The fact is that in the legal sense, a factoring agreement, relations under which are regulated by Chapter 43 of the Civil Code of the Russian Federation, combines not only elements of an assignment agreement, but also elements of credit and loan agreements.

The main difference between factoring and assignment agreements is that when concluding a factoring agreement, there is no change of persons in obligations. In addition, under a factoring agreement, the financial agent transfers or undertakes to transfer funds to the client against the client’s monetary claim to a third party arising from the client’s provision of goods, performance of work, provision of services (Clause 1 of Article 824 of the Civil Code of the Russian Federation). And the financial agent must finance it with money.

As for the tax differences in accounting for expenses, the Ministry of Finance of the Russian Federation points out that when accounting for expenses under a factoring agreement, it is necessary to be guided by the provisions of Article 269 of the Tax Code of the Russian Federation, which normalize interest expenses on debt obligations. While accounting for expenses arising under the assignment agreement is not standardized.

The definition of a factoring agreement (a financing agreement for the assignment of a monetary claim) is contained in clause 1 of Art. 824 of the Civil Code of the Russian Federation: under a financing agreement for the assignment of a monetary claim, one party (financial agent) transfers or undertakes to transfer to the other party (client) funds to offset the monetary claim of the client (creditor) to a third party (debtor), arising from the provision of goods by the client, performance of work or provision of services to a third party, and the client cedes or undertakes to cede this monetary claim to the financial agent.

Banks and other credit organizations, as well as other commercial organizations that have permission (license) to carry out activities of this type (Article 825 of the Civil Code of the Russian Federation) can act as a financial agent in financing agreements for the assignment of a monetary claim.

In practice this happens as follows:

1. After concluding a factoring agreement, the client transfers to the financial agent commodity documents (acts of services rendered, work performed), according to which he transfers the right of claim to the factor;

2. The financial agent, without waiting for payment to be received from the supplier, transfers from 60 to 90 percent to the client’s account. This amount is established in the contract and, according to practice, it varies from 60 to 90%.

3. value of debt claims. At the same time, the factor withholds its commission and interest for financing from the transfer amount.

3.1. Non-recourse type of factoring agreement (clause 3 of Article 827 of the Civil Code of the Russian Federation): the client is not responsible for the debtor’s failure to fulfill or improper fulfillment of the claim that is the subject of the assignment if it is presented for execution by the financial agent. If a non-recourse factoring agreement is concluded between the financial agent and the client, then the factor cannot return to the client the right of claim that was previously transferred to him and he himself fully bears the risk of non-payment.

3.2. The regressive type of factoring agreement is characterized by the fact that if payment is not received from the debtor, the financial agent can return to the client the previously received right of claim, while the creditor must return the received financing. The client's return of financing does not mean that the financing agent will not retain interest and commissions.

The obligations of a financial agent under a factoring agreement may include maintaining accounting records for the client (clause 2 of Article 824 of the Civil Code of the Russian Federation). Also, within the framework of a factoring agreement, the client is sometimes provided with other financial services related to the monetary claims that are the subject of the assignment. For example, processing client accounts receivable registers, managing client accounts receivable, processing client payment orders, client risk insurance, etc.

However, the main service under a factoring agreement is the provision of funds to the client and, as a rule, the remuneration of the financial agent for its provision depends on the amount of financing provided and is set as a percentage of this amount. The cost of additional services is usually indicated in the contract in the form of fixed amounts.

In addition to financing against the assignment of the right of claim, this claim can also be assigned by the client to the financial agent in order to ensure the fulfillment of the client’s obligation to the financial agent (paragraph 2, clause 1, article 824 of the Civil Code of the Russian Federation).

Such an agreement consists of elements of a loan or credit agreement and a pledge agreement. When concluding this type of financing agreement, the right of claim is transferred to the financial agent to ensure the fulfillment of the client’s obligations to repay the loan or credit received by him. The financial agent must provide the client with a report on the amounts received from the debtor under the main agreement. If the amounts received exceed the client's debt, then the financial agent must transfer to the client an amount exceeding the amount of the client's debt secured by the assignment of the claim. If the funds received by the financial agent from the debtor turn out to be less than the amount of the client’s debt to the financial agent, secured by the assignment of the claim, the client remains liable to the financial agent for the balance of the debt.

Income tax on factoring

According to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, the organization’s expenses must be economically justified.

In practice, it is difficult to prove that concluding a factoring agreement is economically beneficial for the company. This is due to the fact that financing agreements for the assignment of the right of claim are, as a rule, unprofitable. Using these arguments, tax authorities are trying to exclude costs under a factoring agreement from expenses taken into account for profit tax purposes.

However, the position of the tax authorities is controversial. Thus, in paragraph 3 of the Determination of the Constitutional Court of the Russian Federation dated June 4, 2007 N 320-O-P it is stated that the economic feasibility of expenses cannot be assessed from the point of view of their feasibility and the result obtained, since the tax legislation of the Russian Federation does not uses the concept of economic feasibility. In addition, Part 1 of Article 8 of the Constitution of the Russian Federation establishes freedom of economic activity and, accordingly, the taxpayer independently carries out its activities and has the right to independently evaluate its results.

When accounting for costs under a factoring agreement for tax purposes, it is necessary to take into account the following nuances:

1. If the amounts of commission fees in the factoring agreement are specified in fixed amounts, then such amounts are included in the expenses accepted when determining the tax base for income tax, in accordance with Art. 264 of the Code as other expenses associated with production and sales in full (Letter of the Ministry of Finance of the Russian Federation dated November 6, 2007 No. 03-03-06/1/772);

2. If the above payments are expressed as a percentage, then, in the opinion of the tax authorities, when forming the tax base for income tax, it is necessary to apply the taxation procedure provided for in Article 279 of the Tax Code of the Russian Federation (Letter of the Federal Tax Service for Moscow dated 05.05.2005 No. 20 -12/32441; Letter of the Federal Tax Service for Moscow dated July 27, 2005 No. 20-12/53139). But the opinion of the fiscal is not correct, since with factoring there is no change of persons in obligations.

Thus, the Ministry of Finance of the Russian Federation in its Letter dated April 17, 2008 No. 03-03-06/1/284 noted that “the provisions of Article 279 of the Tax Code of the Russian Federation, which establishes the procedure for taxation of profit upon assignment (assignment) of the right of claim, to relations under a financing agreement under assignment of monetary claims does not apply.

At the same time, expenses associated with the factoring agreement, including commission fees under the factoring agreement, expressed as a percentage, for profit tax purposes are equated to expenses in the form of interest on debt obligations and are taken into account taking into account the provisions of Art. 269 of the Tax Code of the Russian Federation.” A similar point of view is reflected in the Letter of the Ministry of Finance of the Russian Federation dated November 6, 2007 N 03-03-06/1/772.

Thus, the maximum amount of expenses under a factoring agreement, if the financial agent’s remuneration is expressed as a percentage, must be calculated taking into account the provisions of Article 269 of the Tax Code of the Russian Federation. Amounts of expenses exceeding the maximum allowable in Article 269 of the Tax Code of the Russian Federation are not taken into account for tax purposes (clause 8 of Article 270 of the Tax Code of the Russian Federation).

However, it should be taken into account that the Arbitration Courts have a different opinion, noting that relations under a factoring agreement are regulated by Chapter 43 “Financing against the assignment of a monetary claim” of the Civil Code of the Russian Federation, and the legal relations of the parties under loan and credit agreements are separated into independent ones and are regulated by a separate Chapter 42 “Loan and credit" of the Civil Code of the Russian Federation. Consequently, the remuneration under this agreement cannot be attributed to the debt obligations referred to in paragraph 1 of Article 269 of the Tax Code of the Russian Federation and, therefore, the taxpayer does not need to determine the maximum amount of costs taken into account when taxing profits taking into account the provisions of Article 269 of the Tax Code RF. A similar opinion is expressed in the Resolution of the Federal Antimonopoly Service of the Ural District dated 02.11.2005 N F09-4898/05-S7, the Resolution of the Federal Antimonopoly Service of the Moscow District dated 02.08.2005, 28.07.2005 N KA-A40/7021-05.

If the company decides not to take into account the opinion of the Ministry of Finance on the normalization of expenses for commission remuneration to the factor, taking into account the provisions of Article 269 of the Tax Code of the Russian Federation, then it will have to defend its opinion in court.

Accounting for VAT when factoring

For financing transactions under the assignment of the right of claim, according to the agreement, the tax base for VAT is determined in the same manner as for the sale of goods (work, services) described in (clause 1 of Article 155, Article 154 of the Tax Code of the Russian Federation).

As for VAT deductions arising under a factoring agreement, it should be noted that commission payments in favor of the financial agent are subject to VAT. The fact is that Article 149 of the Tax Code of the Russian Federation does not name services for financing under the assignment of the right of claim as transactions not subject to taxation (exempt from taxation). Consequently, the client has the right to accept “input” VAT under the factoring agreement as a deduction. The following points must be taken into account:

1. If the financial agent’s commission is set at a fixed amount, then the client has the right to deduct the entire amount of VAT reflected in the factor’s invoice;

2. If the commission is set in percentage terms, then it is normalized for tax purposes by income tax and, therefore, VAT on such invoices must be deducted in proportion to the amount of expenses taken into account for income tax purposes. This is stated in paragraph 7 of Article 171 of the Tax Code of the Russian Federation.

3. If transactions are carried out under a factoring agreement that are not subject to taxation in accordance with Article 149 of the Tax Code of the Russian Federation, then the client does not have the right to deduct the amount of VAT on the financial agent’s commission. This situation may arise, for example, in transactions related to the sale and purchase of bills.

There are decisions of Arbitration Courts regarding this situation. For example, the Federal Arbitration Court of the East Siberian District in its Resolution dated May 22, 2007 in case No. A78-3112/06-S2-17/149-04AP-161/06-F02-2849/07 noted that the use of VAT deduction on amounts paid to the bank as part of the commission under the factoring agreement, contradicts the requirements of Articles 149, 171 of the Tax Code of the Russian Federation, since the bank’s fulfillment of obligations under the factoring agreement is associated with the company’s implementation of transactions for the purchase and sale of bills of exchange, which are not subject to value added tax.

It should be noted that when the right of claim is assigned to a financial agent in order to ensure the fulfillment of the client’s obligation to the financial agent, according to paragraph 2 of paragraph 1 of Article 824 of the Civil Code of the Russian Federation, an object of VAT taxation does not arise. This follows from paragraph 1 of Article 146 of the Tax Code of the Russian Federation, which states that the sale of goods (work, services) on the territory of Russia, including the sale of collateral, is recognized as subject to value added tax. In turn, according to Article 39 of the Tax Code of the Russian Federation, sale is a transfer of ownership. But when property is transferred as collateral, ownership of it does not pass and, therefore, the client (pledgor) does not become subject to VAT.

Currently, factoring is becoming more widespread than bank loan products that have become noticeably more expensive. By concluding a factoring agreement, the company receives real financing, the interest on which has already been paid. But, it should be borne in mind that while receiving every second benefit in the form of replenishment of working capital, the company receives a loss on the transaction as a whole.

In tax practice, disputes constantly arise regarding the validity of factoring, the essence of which can be reduced to the main question: why should an organization enter into a financing agreement with a bank for the assignment of a monetary claim? The explanation is simple: with the help of factoring, an organization receives funds and, as a result, minimizes losses under other contracts. But can the costs of such contracts always be considered economically justified?

Chapter 43 of the Civil Code of the Russian Federation regulates the features of financing for the assignment of a monetary claim, which is sometimes called factoring.

According to Art. 824 of the Civil Code of the Russian Federation, under a financing agreement for the assignment of a monetary claim, one party (financial agent) transfers or undertakes to transfer to the other party (client) funds to offset the client’s (creditor’s) monetary claim to a third party (debtor), arising from the provision of goods by the client, the fulfillment by him works or provision of services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent.

As a financial agent, financing agreements for the assignment of a monetary claim can be concluded by banks and other credit organizations, as well as other commercial organizations that have permission (license) to carry out activities of this type (Article 825 of the Civil Code of the Russian Federation).

Let's look at several examples of court consideration of cases related to the issue of justification of expenses for payment of factoring services.

Thus, the Federal Antimonopoly Service of the North-Western District considered a dispute about the legality of a taxpayer’s reduction of profit for the costs of paying for factoring services provided by the bank. Let us present the position of the court, set out in the Resolution of September 1, 2005 in case No. A56-11266/04.

Under a factoring agreement, the LLC ceded to a non-bank credit organization the right to demand payment arising from the buyer’s obligations.

The LLC entered into two different agreements: with the buyer and the seller, respectively, for the sale and purchase of goods.

The tax authority concluded that costs in the form of remuneration paid under a factoring agreement cannot be included in the expenses of an LLC when calculating the tax base for income tax. The inspection referred to paragraph 2 of Art. 279 of the Tax Code of the Russian Federation, according to which the negative difference between the income from the sale of the right to claim a debt and the cost of goods sold is recognized as a loss on the transaction of assignment of the right of claim, which is included in the non-operating expenses of the taxpayer. This condition is met when the taxpayer, the seller of the goods, who calculates income (expenses) using the accrual method, cedes the right to claim the debt to a third party after the payment deadline stipulated in the contract for the sale of goods has arrived.

The courts rejected the tax inspectorate's arguments, arguing as follows:

in the case under consideration, the LLC assigned the right of claim at the book value, therefore, for profit tax purposes, the taxpayer does not have a loss from the assignment of the claim, and therefore, the rules of Art. 279 of the Tax Code of the Russian Federation are not applicable;
expenses for paying for the services of a financial agent for carrying out factoring operations can be taken into account either as part of other expenses, if related to the production and sale of goods (work, services), or as part of non-operating expenses not directly related to production and sale, if these services are economically justified in connection with conducting activities aimed at generating income;
According to the terms of the contract, if there is a delay in payment for the delivered goods, the LLC pays the seller a penalty in the amount of 30% of the transaction amount. Due to the lack of funds that arose as a result of non-receipt of payment from the buyer under the purchase and sale agreement, the LLC entered into a factoring agreement, paying the financial agent a fee of 15% of the transaction amount. Consequently, the conclusion of a factoring agreement is economically justified, since it led to smaller losses than those that could have arisen as a result of the LLC’s late payment of goods to the seller.

It is worth paying attention to the important conclusion of the court. Expenses are also economically justified when they help reduce losses: the loss of 15% to pay factoring fees when assigning the buyer’s debt under one agreement allowed us to avoid paying a 30% fine to the seller under another agreement. This fine was quite real due to the failure to receive funds from the buyer on time. However, according to the author, from the point of view of Art. 333 of the Civil Code of the Russian Federation, such a large fine can be questioned (see information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 1997 No. 17).

A similar tax dispute was considered by the Federal Antimonopoly Service of the North-Western District, whose point of view is given in the Resolution of April 10, 2006 in case No. A56-35713/2005.

The tax authority stated that the expenses under the factoring agreement were economically unjustified and that there were signs of a financial scheme in connection with the overstatement of the amount of remuneration under the agreement, which entails a deliberate unprofitability of the transaction for the taxpayer. The reason for this conclusion was the commission paid to the bank in an amount exceeding 25.6% of the amount of receivables sold to the bank. According to the tax authority, this transaction is unprofitable and is not economically feasible due to the provisions of Art. 252 of the Tax Code of the Russian Federation.

However, the arbitration courts of all three instances recognized the disputed expenses as economically justified.

The essence of the matter boils down to the following. The organization (buyer), on the basis of an agreement concluded with the LLC (seller), acquired 45 simple interest-free promissory notes of Sberbank of Russia. According to the terms of the contract, the buyer is obliged to pay the seller the value of the bills on time. The contract also provides for the buyer's obligation to pay the seller a penalty in the amount of 0.5% of the contract price for each day of delay in payment, but not more than 10% of the contract price in case the buyer fails to comply with the deadline for transferring funds. If there is a delay in fulfilling obligations by more than two days or refusal to pay bills, in addition to penalties, the buyer pays the seller a fine in the amount of 5% of the contract price.

The organization subsequently sold the purchased bills of exchange to a third party, who, shortly before the due date for settlements between the buyer and the seller, informed it of the impossibility of timely fulfilling the obligations stipulated in the said agreement to pay for the purchased bills of exchange due to financial difficulties.

Due to the lack of funds to pay for the bills purchased from the LLC and in order to avoid liability under the contract, the organization entered into a factoring agreement with the bank, which provided for the obligation to pay the financial agent for factoring services.

From the point of view of the organization, the conclusion of a factoring agreement is economically justified, since it led to smaller losses than those that could have arisen as a result of the organization’s untimely payment of the cost of bills purchased from the LLC.

Having assessed the presented documents and arguments of the parties, the courts of all instances concluded that the expenses incurred by the organization for factoring operations were economically justified (taking into account the absence of legally established criteria for the economic justification of expenses for tax purposes).

The cassation board considered the tax authority's argument to be untenable. The court concluded that financing against the assignment of a monetary claim is not an independent transaction related to the receipt of income, but is aimed at reducing the organization’s losses when it carries out purchase and sale transactions of bills of exchange.

FAS East Siberian District in its Resolution dated May 23, 2006 in case No. A19-15665/05-20-Ф02-2423/06-С1 did not accept the tax inspectorate’s arguments about the economic unjustification of financing agreements concluded with a bank for the assignment of a monetary claim (factoring ), believing that the tax authority does not have the right to determine the economic feasibility of contracts concluded by the taxpayer. Conclusions about the need to analyze the applied prices under factoring agreements during a tax audit are legally untenable, since the voluntary fulfillment by debtors of their contractual obligations eliminates the need to conclude a factoring agreement.

At the same time, if the taxpayer cannot explain what exactly the business purpose of the factoring agreements was for him, the courts will not recognize the expenses incurred as economically justified.

For example, in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated May 24, 2006 in case No. A82-16240/2005-14, the following decision was made not in favor of the taxpayer.

The companies entered into a purchase and sale agreement, according to which the seller (LLC) agreed to transfer ownership, and the buyer (OJSC) agreed to accept and pay for the goods. The seller notified the buyer about the actual delivery time of the goods, and the parties signed an additional agreement to the contract on the payment of penalties by the seller in case of violation of the delivery time of the goods. The OJSC received the goods on time and on the same day sold the goods to a third party, who undertook to make payments under this agreement after five days from the date of signing the agreement. Before the payment deadline under the specified agreement, the OJSC entered into a factoring agreement with the bank, under which it assigned its monetary claim to a third party, and also instructed the bank to transfer from the amount received from the third party to the account of its creditor (LLC) the funds necessary to pay for the goods. For the services provided under the factoring agreement, the OJSC transferred remuneration to the bank.

The Arbitration Court of the Yaroslavl Region found that the resale of the goods on the day of its receipt from the seller indicated that the buyer had been found in advance. The payment period for goods under these agreements was five banking days from the date of acceptance of the goods. The contracts provided for the buyer's liability for late payment for goods: the liability of the OJSC to the LLC was set at 0.5% of the cost of the goods for each day of delay, and the liability of a third party to the OJSC was 1% for each day of delay. The OJSC incurred a loss from the operation of resale of goods.

Based on these circumstances, the court of first instance came to the conclusion that the conclusion of a factoring agreement between the OJSC and the bank (before the payment terms under these agreements) and the payment of remuneration under it cannot be recognized as either economically justified or carried out for the purpose of conducting activities aimed at generating income . Thus, the disputed expenses of the OJSC do not meet the criteria allowing them to be considered expenses that reduce taxable profit.

The FAS of the Central District also considered a tax dispute about the validity of expenses under a factoring agreement (Resolution of February 17, 2006 in case No. A14-8904-05/341/24). After conducting an on-site audit, the tax authority came to the conclusion that the OJSC, having entered into a financing agreement with the bank under the assignment of a monetary claim and paying a commission in the amount of more than 20% of the financing amount, incurred economically unjustified costs. The inspectorate refused to refund the VAT to the company, assessed additional taxes and penalties. The company, not agreeing with this decision, appealed to the arbitration court. The cassation instance, returning the case for a new trial to the court of first instance, noted: when resolving this dispute, the court of first instance did not establish the goals of the concluded factoring agreements, their economic feasibility and validity. As can be seen from the case materials, factoring agreements had no economic benefit, which contradicts the principles of entrepreneurial activity aimed at systematically making a profit.

The court of first instance referred to the forced nature of concluding transactions with the bank, but did not provide any justification. The cassation court noted that the threat of buyers' failure to fulfill their payment obligations under sales contracts was not confirmed by evidence, and the insolvency of buyers was not proven.

To summarize, we note: the purpose of factoring is to receive funds for assigned receivables. The taxpayer assigning the debt must explain why it was necessary to sell it, paying a fee to the financial agent for this. This explanation could be:

expiration of the payment period and temporary insolvency of the debtor (in this case, the situation should not arise that the financial agent (bank) will receive the required amount in full and within a reasonable time);
the need to quickly receive “real” money to pay off accounts payable in order to avoid losses (in this case, the penalties that are avoided must be proportionate to the consequences of violations of payment obligations and exceed the amount of remuneration paid to the financial agent).

Only if there are such explanations, expenses under a factoring agreement can be considered economically justified, i.e. reducing taxable profit.

"Financial and accounting consultations", 2006, N 9

Chapter 43 of the Civil Code of the Russian Federation regulates the features of financing for the assignment of a monetary claim, which is sometimes called factoring.

Let's look at several examples of court consideration of cases related to the issue of justification of expenses for payment of factoring services.

Under a factoring agreement, the LLC ceded to a non-bank credit organization the right to demand payment arising from the buyer’s obligations.

The LLC entered into two different agreements: with the buyer and the seller, respectively, for the sale and purchase of goods.

The courts rejected the tax inspectorate's arguments, arguing as follows:

in the case under consideration, the LLC assigned the right of claim at the book value, therefore, for profit tax purposes, the taxpayer does not have a loss from the assignment of the claim, and therefore, the rules of Art. 279 of the Tax Code of the Russian Federation are not applicable<1>;
expenses for paying for the services of a financial agent for carrying out factoring operations can be taken into account either as part of other expenses, if related to the production and sale of goods (work, services), or as part of non-operating expenses not directly related to production and sale, if these services are economically justified in connection with conducting activities aimed at generating income;
According to the terms of the contract, if there is a delay in payment for the delivered goods, the LLC pays the seller a penalty in the amount of 30% of the transaction amount. Due to the lack of funds that arose as a result of non-receipt of payment from the buyer under the purchase and sale agreement, the LLC entered into a factoring agreement, paying the financial agent a fee of 15% of the transaction amount. Consequently, the conclusion of a factoring agreement is economically justified, since it led to smaller losses than those that could have arisen as a result of the LLC’s late payment of goods to the seller.

<1>Nevertheless, the loss from factoring is subject to inclusion in expenses, taking into account the restrictions established by Art. 279 of the Tax Code of the Russian Federation, - attention was drawn to this circumstance in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 3, 2006 in case No. A28-10585/2005-259/29. This document also emphasizes that factoring is not an exclusive banking transaction.

It is worth paying attention to the important conclusion of the court. Expenses are also economically justified when they help reduce losses: the loss of 15% to pay factoring fees when assigning the buyer’s debt under one agreement allowed us to avoid paying a 30% fine to the seller under another agreement. This fine was quite real due to the failure to receive funds from the buyer on time. However, according to the author, from the point of view of Art. 333 of the Civil Code of the Russian Federation, one can question such a large fine (see Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 14, 1997 No. 17).

A similar tax dispute was considered by the Federal Antimonopoly Service of the North-Western District, whose point of view is given in the Resolution of April 10, 2006 in case No. A56-35713/2005.

However, the arbitration courts of all three instances recognized the disputed expenses as economically justified.

The FAS of the East Siberian District, in its Resolution dated May 23, 2006 in case No. A19-15665/05-20-Ф02-2423/06-С1, did not accept the arguments of the tax inspectorate about the economic unjustification of financing agreements concluded with a bank for the assignment of a monetary claim (factoring ), believing that the tax authority does not have the right to determine the economic feasibility of contracts concluded by the taxpayer. Conclusions about the need to analyze the applied prices under factoring agreements during a tax audit are legally untenable, since the voluntary fulfillment by debtors of their contractual obligations eliminates the need to conclude a factoring agreement.

For example, in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated May 24, 2006 in case No. A82-16240/2005-14, the following decision was made not in favor of the taxpayer.

expiration of the payment period and temporary insolvency of the debtor (in this case, the situation should not arise that the financial agent (bank) will receive the required amount in full and within a reasonable time);
the need to quickly receive “real” money to pay off accounts payable in order to avoid losses (in this case, the penalties that are avoided must be proportionate to the consequences of violations of payment obligations and exceed the amount of remuneration paid to the financial agent).

Only if there are such explanations, expenses under a factoring agreement can be considered economically justified, i.e. reducing taxable profit.

A.N.Medvedev

chief auditor

CJSC "Audit BT",

tax consultant

More than 23 million rubles had to be paid in court to the budget of the company that entered into the factoring agreement. The fact is that she was unable to repel the claims of the tax authorities in the Supreme Arbitration Court of the Russian Federation regarding the lack of a reasonable business purpose and economic justification of the transaction - determination of the Supreme Arbitration Court of the Russian Federation dated June 23, 2008 No. 7365/08. The judges came to the conclusion that the funds were passed through a payment scheme for one purpose. For illegal reimbursement of VAT from the treasury in the absence of real costs for its payment. Read in the notes what arguments will help you win such cases.

GAP 1. The procedure for accounting for expenses for factoring services is not established in the Tax Code of the Russian Federation

The subject of a factoring transaction can be either a “receivable”, the payment period for which has already arrived, or a monetary claim that will arise in the future, that is, a future “receivable”. This follows from Article 826 of the Civil Code of the Russian Federation.

From the definition of financing for the assignment of the right of claim, two types of factoring agreement can be distinguished: non-recourse and recourse. Non-aggressive factoring is when a financial agent acquires from an organization the right to receive its client’s receivables. That is, it actually buys receivables from the organization. Usually at a reduced price. Moreover, all risks associated with the debtor’s non-payment of money in non-recourse factoring are borne by the financial agent, and not the organization.

With recourse factoring, the financial agent provides the organization with funds to cover receivables that have not been repaid by the debtor or that have not yet matured. The financial agent issues money for a certain period, after which the organization must return it. In this case, ensuring the return of financing is the right to claim the debt against the debtor, which the organization assigns to him. That is, there is no repurchase of receivables, as with recourse factoring, but lending to the organization. In this case, the guarantor of the return of the “loan” is. All risks associated with the debtor’s non-payment of money are borne by the organization, and not the financial agent.

Now about the payment of remuneration for factoring operations. Since with non-aggression factoring the financial agent or bank immediately buys the “receivable” from you and assumes all the risks of receiving it, then he does not charge any commission for this service in the future.

In practice, recourse factoring is most often used, in which lending to an organization is secured by the right to claim the debt. In this case, the financial agent retains additional remuneration for the funds provided. And the problem here is this. For income tax purposes, the procedure for accounting for factoring remuneration is not established in the Tax Code of the Russian Federation. According to the Ministry of Finance of Russia (Letters of the Ministry of Finance of Russia dated April 17, 2008 No. 03-03-06/1/284, dated February 19, 2008 No. 03-03-06/1/116), if the amount of remuneration is expressed in a fixed amount , then it can be immediately included in other or non-operating expenses in accordance with Article 264 and Article 265 of the Tax Code of the Russian Federation - letter of the Ministry of Finance of Russia dated January 18, 2006 No. 03-03-04/1/33.

If the commission is expressed as a percentage of the amount of the assigned monetary claim, then such expenses must be taken into account as interest on debt obligations. That is, in accordance with paragraph 1 of Article 269 of the Tax Code of the Russian Federation, within the limit. Amounts exceeding the established limit are not accepted as expenses - paragraph 8 of Article 270 of the Tax Code of the Russian Federation.

ARBITRATION. It should be noted that the courts do not support this position. For example, the resolution of the Federal Antimonopoly Service of the Volga Region dated November 8, 2007 No. A55-2208/07 states that a factoring agreement is concluded in accordance with the provisions of Chapter 43 of the Civil Code of the Russian Federation. This allows us to conclude that the remuneration under this agreement cannot be attributed to the debt obligations referred to in Article 269 of the Tax Code of the Russian Federation. A similar conclusion is contained in the resolution of the Federal Antimonopoly Service of the Ural District dated April 10, 2008 No. Ф09-2195/08-С2.

Considering the contradiction between the official position and judicial practice, each organization must decide independently on the procedure for accounting for interest.

GAP 2. Factoring transactions are not subject to VAT

When concluding a factoring agreement, an accountant is faced with several questions related to VAT, to which the Tax Code of the Russian Federation does not provide a direct answer. Let's start in order.

Is the transaction of assignment of the right of claim itself subject to VAT? In practice, officials require VAT to be charged on the factoring operation, since they see this as the implementation of property rights. And such sales are taxed in accordance with subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation. In this case, the tax base must be recognized as the value of realized property rights (Clause 2 of Article 153 of the Tax Code of the Russian Federation), that is, the value of the assigned monetary claim.

I can't agree with this. And that's why. Firstly, the rules for determining the tax base when transferring property rights, established in Article 155, do not stipulate a special procedure for calculating VAT in transactions involving the initial assignment of a monetary claim. Secondly, if you follow the logic of officials and charge VAT, then the organization faces double taxation. First, she pays tax when she sells the goods to the buyer. And then again when assigning debt. And this is unacceptable.

ARBITRATION. This point of view is confirmed by arbitration practice. For example, resolutions of the FAS of the Volga District dated May 10, 2007 No. A55-13072/06, FAS of the Central District dated November 8, 2007 No. A48-5635/06-8. Moreover, the legality of this approach was confirmed by the Supreme Arbitration Court of the Russian Federation (Determination of the Supreme Arbitration Court of the Russian Federation dated March 14, 2008 No. 10887/07).

The judges indicated that the agreement on the assignment of the right of claim is related to the execution of a contract for the sale of goods, works or services. Therefore, based on the provisions of paragraph 1 of Article 155 of the Tax Code of the Russian Federation, value added tax should be charged not on transactions for the assignment of the right of claim, but on transactions for the sale of goods. And since the lender has already paid the tax upon sale, there is no need to re-assess it upon assignment.

GAP 3. Should input VAT on factoring services be normalized?

Now regarding VAT deductions for fees paid to the financial agent. Here we must immediately note the following. Despite the fact that financing under the assignment of the right of claim is very similar to lending, it does not apply to banking operations (Article 5 of the Federal Law of December 2, 1990 No. 395-1 “On Banks and Banking Activities”).

Therefore, the norm of subparagraph 3 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation, which establishes an exemption from VAT for banking services, does not apply to factoring operations. Moreover, the list of non-taxable banking services in this norm is exhaustive. Thus, services under a factoring agreement are subject to VAT. This is also confirmed by letters from regulatory agencies - for example, the Ministry of Taxes of Russia dated June 15, 2004 No. 03-2-06/1/1371/22. And judicial practice, in particular the resolution of the Federal Antimonopoly Service of the North-Western District dated October 26, 2005 No. A56-45999/04, etc.

As for the deduction of input VAT on factoring services, the situation here is as follows. As I said above, according to officials, the costs of factoring services, expressed as a percentage of the assignment amount, should be taken into account within the limit. Thus, you must also take into account the input VAT on these expenses within the limit. Moreover, there are no official explanations regarding the regulation of commissions for factoring services. But there is a letter in which the Russian Ministry of Finance states that VAT amounts are deductible only within the limits for all types of expenses normalized for income tax purposes. Moreover, both those named in paragraph 7 of Article 171 of the Tax Code of the Russian Federation, and those not named (Letters of the Ministry of Finance of Russia dated April 9, 2008 No. 03-07-11/134, dated November 11, 2004 No. 03-04-11/201) .

In general, arbitration practice on the issue of VAT regulation is ambiguous. According to some judges, VAT rationing rules apply only to travel and entertainment expenses. For example, resolution of the Federal Antimonopoly Service of the Volga District dated January 22, 2008 No. A55-5349/2007. Others believe that if any expenses are accepted for profit tax purposes according to the standards, then input VAT on such expenses is accepted for deduction in the amount corresponding to the specified standards. For example, resolutions of the Federal Antimonopoly Service of the Ural District dated February 20, 2006 No. F09-746/06-S2, FAS Moscow District dated May 27, 2005 No. KA-A40/4502-05.

We do not have any judicial practice on standardization of input VAT on factoring services. Therefore, you will have to decide this issue yourself.

GAP 4. A loss from a transaction does not mean it is fictitious

If you assign receivables as if at a discount, that is, sell at a loss, then the resulting loss relates to non-operating expenses - subparagraph 7 of paragraph 2 of Article 265 of the Tax Code of the Russian Federation. It must be taken into account according to the rules of Article 279 of the Code. In this case, the procedure for recognizing the amount of loss in tax accounting depends on the expiration of the payment period under the agreement under which you are transferring the right of claim. This follows from paragraphs 1 and 2 of Article 279 of the Tax Code of the Russian Federation.

If the repayment period for the transferred “receivables” has not yet expired, then the amount of loss that can be taken into account when calculating income tax is limited. It must be calculated in accordance with the rules of paragraph 4 of paragraph 1 of Article 269 of the Tax Code of the Russian Federation. The amount of loss accepted for taxation can be calculated using the formula:

Y = D x C x 1.1: 365 (366) x d, where

Y - loss taken into account when calculating income tax;

D - income from the assignment of the right of claim;

C - refinancing rate on the date of assignment;

d - the number of days for the period from the date of assignment to the date of payment provided for in the contract for the sale of goods (work, services).

If the contract under which the right of claim is assigned was concluded in foreign currency, then instead of the coefficient of 1.1, a rate of 15 percent is used.

Olga Stepanovna, tell me, what if the amount of the resulting loss is less than the amount of the limit calculated by the formula?

Then you can take into account the entire amount of the resulting loss from the assignment of the right of claim. Take into account the loss on the date of signing the act of assignment of the right of claim. This follows from paragraph 5 of Article 271 of the Tax Code of the Russian Federation and is confirmed by letter of the Ministry of Finance of Russia dated September 28, 2007 No. 03-03-06/2/187.

Further. If the term of the agreement under which the right of claim is assigned has expired, that is, an overdue “receivable” is transferred, then include the amount of the loss in the following way. You must include 50 percent of the total loss as expenses at the time of signing the deed of assignment. Include the remaining amount of the loss in expenses after 45 calendar days from the day following the day of signing the act of assignment of the right of claim. This procedure is established by paragraph 2 of Article 279, paragraph 5 of Article 271 of the Tax Code of the Russian Federation and is recommended in the letter of the Ministry of Finance of Russia dated September 28, 2007 No. 03-03-06/2/187.

ARBITRATION. I draw your attention to this point. If a loss is incurred under a factoring agreement, then claims from the tax authorities are possible. Since officials believe that such operations are aimed at reducing the organization’s income in order to minimize income tax. Arbitration practice on this issue is contradictory.

Thus, according to arbitrators supporting organizations, if expenses under a factoring agreement are economically justified and documented, then they can reduce taxable profit completely. In addition, the very focus of the transaction on generating income is important. For example, if a factoring transaction will allow avoiding the occurrence of debt obligations or if the expense of a factoring transaction led to smaller losses than those that could have arisen in the absence of a factoring agreement. See the resolutions of the Federal Antimonopoly Service of the West Siberian District dated March 17, 2008 No. F04-1044/2008 (741-A46-26), the Federal Antimonopoly Service of the Ural District dated October 3, 2006 No. F09-8840/06-S2.

Court decisions in support of tax authorities are based on the fact that the organization lacks a business goal and economic justification for concluding a factoring agreement. That is, there was no need to conclude a factoring agreement and transactions under the factoring agreement are fictitious in nature. For example, resolutions of the FAS Volga-Vyatka District dated August 25, 2006 No. A17-3760/5-2005, FAS East Siberian District dated May 22, 2007 No. A78-3112/06-S2-17/149-04AP-161 / 06-Ф02-2849/07.

And in the ruling of the Supreme Arbitration Court of the Russian Federation dated June 23, 2008 No. 7365/08, the judges indicated that the funds under the factoring agreement were passed through a settlement scheme for the unlawful reduction of the taxable base for income tax.

According to AFK, the turnover of the factoring market in Russia in the second half of 2012 exceeded 617 billion rubles More and more companies are turning to the services of Factors, having managed to evaluate over the 14 years of the industry’s existence the opportunities for safe growth that factoring and financial logistics provide to businesses. However, Clients still have a lot of questions, and today ifactoring will tell readers about such an important issue as accounting and taxation of factoring operations.

You can find publications on this topic on the Internet and business literature, but most of them date back to 2002 - 2004 and, naturally, are no longer relevant.

As a rule, the Factor advises the Client at the beginning of work on the legal and accounting formalization of factoring operations, providing methodological recommendations, as, for example, NFC does.

Chief accountant of a large manufacturing company, working with NFC on non-recourse factoring since 2010: “To be honest, the director’s message about the start of factoring work was received by both the accounting and legal departments without much enthusiasm. Document management and installation of an electronic system raised many questionse-factoring. It was completely unclear how to reflect factoring work in tax accounting. Attempts to find information in open sources were unsuccessful. Then we asked representatives of the factoring company to send some information. EmployeesNFCresponded immediately. We received detailed instructions by email, and with the systeme-factoringThe client manager taught us how to work when he came to our office. The first reporting did not cause any difficulties.”

To understand what accounting and taxation of factoring operations actually are, we turned to NFC for information.

So, let’s look at how tax accounting for the most popular factoring products is organized: factoring without recourse and factoring with recourse.

Factoring without recourse

The factoring service scheme is as follows:

Recommendations for accounting transactions under a financing agreement for the assignment of a monetary claim (factoring operations without recourse) subject to payment of a commission based on the issued invoice:

We draw attention to such an important fact as the fact that when using factoring without the right of recourse, the amount of receivables in accounting is not reflected in the off-balance sheet account 009 “Security for obligations and payments issued,” since the risk of non-fulfillment of the obligation by the Buyer is borne by the Factor. Those. in fact, the receivable is written off from the balance sheet at the time of its sale to the Factor.

Tax accounting of transactions under a financing agreement for the assignment of a monetary claim (transactionsfactoring without recourse)

1.1. Income tax

Base: Articles 269, 279 of the Tax Code of the Russian Federation

The Factor's remuneration under a factoring agreement without recourse is, for the purpose of determining the tax base for income tax, nothing more than the negative difference between the income from the sale of the right to claim the debt and the cost of the goods (work, services) sold, which is recognized as a loss for tax purposes in the manner prescribed by Article 279 Tax Code of the Russian Federation.

1.2. Value added tax

1.2.1. The tax base

Base: Articles 154, 155 of the Tax Code of the Russian Federation

The tax base for value added tax on transactions of sale of goods (works, services), monetary claims for which are ceded by the Client to the Factor, is determined in accordance with the generally established procedure, i.e. as the cost of these goods (works, services), calculated on the basis of prices determined in accordance with Article 40 of the Tax Code of the Russian Federation, taking into account excise taxes (for excisable goods) and without including value added tax.

1.2.2. Moment of determining the tax base

Base: Article 167 of the Tax Code of the Russian Federation

The moment of determining the tax base for value added tax is the earliest of the following dates:

1) the day of shipment (transfer) of goods (work, services), property rights;

2) the day of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

The Client's use of factoring in his activities does not entail changes in the moment of determining the tax base for VAT, while the Client receives the funds necessary to pay the tax to the budget on goods shipped but not yet paid for by buyers.

1.2.3. Tax deductions

Base: Articles 171, 172 of the Tax Code of the Russian Federation

The amount of value added tax on the Factor's commission is subject to deduction by the Client based on the invoice issued by the Factor in the generally established manner.

Next time we will look at how tax accounting of transactions for the factoring product with recourse is organized.