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How to optimize VAT - schemes and ways to reduce tax. Nuances of calculating VAT for business entities Tax optimization of VAT in production

One of the main payments in the Russian tax system is value added tax (VAT). The calculation procedure and methods for optimizing VAT are problems that many businessmen, accountants and tax specialists have to solve. And here it is extremely important not to overdo it, otherwise you may be suspected of seeking an unjustified tax benefit. And this is a direct path to penalties.

Tax benefit is not an end in itself

Every transaction, like every business decision, must have a specific business purpose. But reducing the tax burden in itself cannot be the goal of the operation. Just recently, a new article 54.1 was included in the Tax Code of the Russian Federation. Among other things, it determines the conditions for reducing the tax base, and one of them is the presence of the main purpose of the transaction not related to tax reduction. This is the general approach to the issue of tax optimization. It is important to understand it in order to competently motivate your actions in the event of disputes with the tax service.

For example, a business is split up to apply special tax regimes. Instead of one large store, a businessman opens several small ones nearby, each of which falls under UTII. Often even in the same shopping center. Thus, he gets rid of paying VAT and other basic taxes. The Federal Tax Service may think that the owner started all this to obtain tax benefits, because such a division of the company does not provide any other advantages. It’s another matter if small retail outlets are located, say, in different parts of the city or even in different localities. Then this can be motivated, at a minimum, by the fact that the businessman wants to cover new sales territories and different categories of buyers.

Such questions will not arise if you know how to reduce VAT exclusively using white-collar methods.

Deduction of "input" tax

VAT is an indirect tax, that is, it is ultimately paid at the expense of the end buyer. A company that is a VAT payer has the right to deduct the amount of tax that suppliers charged it for purchased assets, for example, for materials. There are several conditions for applying the deduction:

the sale of goods that will be produced using these materials must be subject to VAT;

the supplier must issue an invoice to the company, where VAT is included in the cost of materials;

materials must be accepted for accounting, but no more than three years ago.

This is the simplest mechanism for reducing the amount of VAT, which is successfully used by many companies. But it is important to ensure that the above conditions are met.

Exemption from VAT

Not every taxpayer knows, but Article 145 of the Tax Code of the Russian Federation provides for a completely legal way to be exempt from VAT. This benefit applies to those companies that, over the last 3 calendar months in a row, have earned no more than 2 million rubles in sales revenue. The relaxation does not apply to importers and sellers of excisable goods. To apply this benefit, it is enough to submit the appropriate notification and documents confirming the right to it to the tax authority.

However, there is one thing: the company's counterparties will not be able to process a VAT tax deduction. That is, for those buyers who themselves pay this tax, working with the company will not be so profitable. As a result, they will either refuse to cooperate or demand a discount. Here, in each case, you will have to calculate in advance whether it is more profitable to work without VAT at a discount or still pay tax.

The second disadvantage is related to the size of revenue - its maximum threshold is limited by law. If you cross it, the right to apply tax exemption will be lost.

Application of reduced and zero tax rates

For those who are thinking about how to reduce VAT, it will be useful to familiarize yourself with Article 164 of the Tax Code of the Russian Federation. It lists goods and services that are taxed not at the standard rate of 18%, but at a preferential rate. For example, at a rate of 0% VAT is levied on the sale of goods for export and international transport. A 10% rate is applied to the sale of most food products, including meat, dairy products, flour, bakery products, cereals, and vegetables. In addition, the same rate applies to the sale of children's goods, medicines and medical devices. As you can see, the choice of discounted goods is quite large.

Working in simplified form

Another option for working without VAT is to use the simplified taxation system (STS). When switching to it, the need to charge and pay VAT will disappear completely. You can notify the Federal Tax Service about the application of the simplified tax system from the beginning of the next year by submitting a corresponding application in advance.

At the same time, there is a risk of losing some buyers who will not want to work with a VAT evader due to the impossibility of processing a tax deduction. But as practice shows, such counterparties can be interested in a good discount. As a result, it is still more profitable than paying VAT and income tax.

The downside is this: in order to switch to the simplified tax system, the company must meet certain criteria. For example, it should employ no more than 100 people, and the amount of revenue for three quarters of the current year should not exceed 112 million rubles. There are a number of other restrictions - all of them are listed in paragraph 3 of Article 346.12 of the Tax Code of the Russian Federation. As we see, such optimization of VAT is also not a panacea.

When the company is too big

If a company “does not fit” into the simplified tax system, there are much fewer legal levers left. Alternatively, you can additionally register a new company that will use the “simplified” procedure. And work with those counterparties who are not VAT payers themselves through it. Or the company is divided into several small parts so that each of them complies with the requirements of the simplified tax system. All business is distributed between these new organizations.

However, one should not forget about the need to have a business purpose and carefully consider the motive for such a division.

Work under agency contracts

There are also schemes based on agency relationships, and here is one of them. The company and the intermediary it created on the simplified tax system enter into a commission agreement. The principal (intermediary) purchases goods from the supplier and transfers them to the main company (commission agent) for commission. For this, the principal pays the commission agent a small remuneration. Tax optimization is as follows: since the intermediary uses the simplified tax system, he does not pay VAT on purchased goods. The main organization in this case will have to pay tax only on the amount of its remuneration, and it is small.

In practice, many companies operate under agency agreements quite successfully. And yet, it is risky to definitely recommend such methods, since the tax service is very suspicious of transactions of interdependent companies.

How to reduce VAT payable: scheme with reorganization

The methods that we described above are practiced with varying degrees of success in the current activities of organizations. But it happens that you need to save on VAT one-time, for example, when transferring expensive property. In most cases, such a transaction will be considered a sale, even if the property is transferred free of charge. And once there is a sale, VAT should be charged.

A common method of avoiding this is reorganization in the form of a spinoff. From company A, which is on the main tax system, company B is separated - it will apply the simplified tax system. By law, Company B is the successor to Company A during reorganization. If, at the same time, company A transfers any property to company B, this will not be considered a sale. Accordingly, there will be no tax base. VAT optimization in its purest form! But there is also a fly in the ointment - the reorganization process itself is quite labor-intensive and long.

Creation of a partnership

A simple partnership is a form of cooperation between organizations that have temporarily united to achieve a specific goal. There is no need to register with the Federal Tax Service - the partners simply enter into an agreement on joint activities. At the same time, they invest property, money, knowledge, reputation - whoever has what - into the common cause. How to evaluate contributions is also decided by the comrades themselves.

Let's give an example of how to reduce VAT without breaking the law. Company A and company B created a simple partnership and made contributions: company A - property, and company B - money. By default, it is considered that the contributions are equal and are the common property of the partners. After a certain time, the participants realized that they had achieved their goal and decided to stop collaborating. The time has come to withdraw your deposits - this is where the exchange takes place. Company A takes the money, and Company B takes the property. The transfer took place, but no taxable object arose - such a transaction is not considered a sale by law and is not subject to VAT.

In theory, this is an ideal scheme to reduce VAT. How this works in practice is entirely up to the implementation. First, you need to have a well-thought-out purpose for creating the partnership. Secondly, you should not close it too quickly - this will give the participants away completely. Thirdly, it is worth preparing for the fact that you may have to fight off the claims of the tax authorities in court. In arbitration practice, there are cases decided in favor of the partnership participants, so with a competent approach, the chances of success are high.

Prepayment masking schemes

Advance payment towards future delivery is subject to VAT in the same way as payment for property or goods. But it’s a completely different matter if the seller receives the same amount from the buyer in a different capacity. This is the basis for VAT optimization with the help of bills, loans, and deposits. The essence of all schemes is approximately the same with minor nuances. First, the buyer transfers an advance payment to the seller, which is disguised, for example, as a loan of funds, and the seller transfers the property to the buyer. After this, the parties have mutual demands: the seller receives the right to demand payment for the property from the buyer, and the buyer from the seller to repay the loan. The parties settle by offsetting counterclaims, and no VAT subject matter arises.

Let's not hide: these schemes are well known to the tax authorities. And therefore, the success of the event will depend on whether the inspectors can prove that the transaction for the transfer of a loan, bill, or deposit was a sham.

Penalty as part of the cost

Another common scheme is based on the application of penalties. The contract includes a condition that if certain provisions are violated, the buyer pays a penalty to the seller. This could be, for example, the deadline for transferring funds. In this case, the price of the transaction object is set deliberately lower than the real one. The buyer, of course, “violates” the terms of the contract and pays a penalty. As a result, the seller receives the full value of the property, which is the sum of the amount specified in the contract and the amount of the penalty. Penalties are not subject to VAT, and this allows the seller to save part of the tax. The risks are the same as those of previous schemes - they are not news to the Federal Tax Service.

In conclusion, I would like to say that there are at least a hundred ways to avoid paying VAT. And many of them are at least gray, or even black. So when deciding how to reduce VAT, you should not agree to any schemes proposed by tax optimization specialists. After all, you will have to bear responsibility for this!

As arbitration practice shows, most disputes between taxpayers and inspectors arise regarding VAT. But there are legal ways to optimize VAT, for example, cooperation with friendly companies on special regimes. Let's take a closer look at them.

To effectively combat value added tax evasion schemes, inspectors use the electronic services of ASK VAT-2 and AIS Tax-3. These software systems automatically monitor the activities of taxpayers. However, tax authorities have not yet been able to completely defeat “gray schemes.” Unscrupulous taxpayers continue to optimize the level of tax burden outside the legal framework.

There are ways to optimize VAT that do not contradict the law. The fact is that for the needs of medium and large businesses, usually one legal entity is not enough. They create groups of companies, which include organizations both on the general taxation system and on the simplified one. Using a special regime is a legal way to avoid paying VAT ().

We divide incoming revenue streams to optimize VAT

Within a group of companies, it is possible to divide the revenue streams from sales between companies, into the OSN and the simplified tax system, in order to collectively pay less VAT to the budget. This VAT minimization scheme is suitable for businesses where revenue simultaneously comes from both VAT payers and VAT evaders. For example, there are wholesale and retail buyers, as well as buyers exempt from VAT. Non-payers do not need VAT to be deducted - they will buy goods from a simplified seller. The rest of the consumers are in the company's general mode.

Practice shows that if buyers who do not need VAT account for at least 10 percent of the wholesaler’s turnover, the costs of fragmentation begin to pay off. How can you determine which buyers need VAT and which don’t? Customer surveys are of little help here. There are more effective ways:

present customers with a fact: we are moving to work without VAT. And only those who refuse to cooperate because of this should be offered a backup option with VAT;
make work without VAT more profitable (discounts, deferred payment);
conduct a preliminary analysis of customers and offer the transition to working without VAT only to those who are sure to not lose anything from this.

The law does not prohibit registering several interdependent legal entities. However, the tax authorities in this case will try to prove that the splitting had the sole purpose of saving on taxes. Consequently, the activities of the simplifier are fictitious, and all of his revenue must be recorded in the company’s turnover under the general regime. Naturally, this will lead to additional charges of VAT, income tax, fines and penalties (). In addition, a company under a special regime can be deprived of this status and its taxes recalculated according to the general system.

A good argument for tax authorities will be the company’s marketing policy and the presence of a business goal. For example, an attempt not to lose the retail market due to a special pricing strategy.

How to transfer VAT deductions safely and without loss

When the amount of VAT to be deducted is greater than the accrued amount, and even exceeds the standard of 88 percent, the company faces not only an in-depth desk audit and a call to a commission at the Federal Tax Service, but also an on-site tax audit. See how to avoid such consequences.

Arbitration practice

The Arbitration Court of the West Siberian District, in its resolution dated January 31, 2017 No. F04-6830/2016, considered the dispute about the division of a business. The tax authority accused the taxpayer of creating a VAT optimization scheme with the participation of newly created interdependent and controlled organizations using the simplified tax system. Based on the results of the audit, the company was assessed additional income tax and VAT.

The court ruled in favor of the taxpayer. He managed to prove that interdependent persons conducted independent business activities. The company entered into agreements with controlled organizations for sublease of premises, processing of customer-supplied raw materials and transportation. The simplifiers had their own suppliers and buyers who worked only with them and did not interfere with the taxpayer being audited. Interdependent companies sold similar products at lower prices.

The taxpayer, in addition to purchasing and selling agricultural products, was engaged in their processing. Interdependent companies did not engage in processing. That is, their activities are not identical.

The tax authority referred to the results of the warehouse inventory. The storage areas for raw materials in the warehouse were not demarcated. Raw materials from different companies were stored together. This indicates the allegedly dependent activities of dependent persons and formal document flow.

However, the court noted that such joint storage of raw materials is permissible. Agricultural products are not endowed with individual characteristics and differ only in type, variety, etc. For correct warehouse accounting, it is enough to know the amount of raw materials owned by a particular legal entity, and not where exactly it is located.

The absence of property ownership among simplifiers, current accounts in the same credit institutions, and a single IP address with the taxpayer do not indicate the non-independent nature of the organizations’ economic activities.

How to optimize VAT? Become intermediaries

Why trade at your own expense if you have the opportunity to become a representative of counterparties and switch to a simplified system? In this case, the company will receive income, which previously represented a trade margin, in the form of an intermediary fee, as well as part of the additional benefit, the del credere fee. There is no need to pay VAT or income tax on this income.

This is achieved either through an agency agreement for the purchase of goods, where the principal is a former buyer, or through an agreement for their sale, when the principal is a former seller. The choice depends on with whom it is easier to agree on representation. At the same time, counterparties do not lose anything in the case when they do not need to deduct VAT - after all, the remuneration of a simplified intermediary is not subject to this tax. If the principals (committees) still need VAT, then you can try to negotiate with them a discount on the remuneration, up to 18 percent. In any case, the intermediary will save on income tax.

In addition to tax savings, in particular optimization of value added tax, working under an intermediary agreement has a number of advantages. The ownership of the goods does not pass to the intermediary; he does not deduct VAT. Therefore, this deduction cannot be deprived if, for example, the principal turns out to be an unscrupulous taxpayer.

The lower the company's turnover, the lower the likelihood of appointment , and the intermediary’s turnover consists only of his own remuneration. Even if the audit takes place, it will not concern such “problematic” taxes as VAT and income tax - the risk of large additional charges is reduced.

But there are also disadvantages. It is more difficult for a commission agent or agent to obtain credit. There is a risk of the intermediary agreement being reclassified as a purchase and sale, especially if there are errors in the document flow.

Of course, tax authorities are aware of this method of optimizing VAT and treat intermediary agreements with suspicion. In the event of a dispute, success will depend on evidence of the interdependence and subordination of the agent to the principal. In addition to the formal signs of affiliation, what is important here are the facts of the creation of a new intermediary when the simplifier’s income approaches critical indicators that allow the use of a special regime, the agent’s work with only one interdependent principal, etc.

Inspectors will pay attention to transactions if the agent uses a special regime, or the agent has signs of being a one-day deal. They will also be interested in agents - foreign organizations.

How to prove to tax authorities the need to involve intermediaries

Determining the validity of an agency fee is simple - you need to understand whether there is a business purpose in attracting an intermediary or whether it was possible to do without him (Decision of the Supreme Court dated August 2, 2016 No. 309-KG16-8920). Let's consider what arguments will help prove the need to involve intermediaries.

Sales volume increased. In one of the disputes, the company was able to prove the validity of expenses and deductions under two agency agreements. The agent had to ensure an increase in the volume of sales of aviation fuel (Resolution of the AS of the West Siberian District dated June 28, 2016 No. F04-2457/2016). And he succeeded. The court found that the sales volume increased by 1.3 times.

The functions of the agent do not duplicate the duties of the principal’s employees. The company entered into a contract for the provision of paid services with an entrepreneur. The individual entrepreneur was required to promptly supply medical and pharmaceutical institutions in Moscow and the Moscow region with the guarantor’s products. The inspectors stated that the entrepreneur’s services duplicate the responsibilities of the marketing service and the company’s director of development and sales. But the court established the reality of the intermediary services provided by the counterparty. The inspectorate did not provide evidence that the individual entrepreneur and the company’s employees were engaged in the same work (Resolution of the Moscow District Administrative Court dated August 29, 2016 No. F05-11844/2016).

The principal could not sell the goods directly to end customers. When building a defense, it is important to prove that the intermediary independently conducts its activities and also has the necessary material and labor resources. Tax authorities should not have suspicions that the principal performs the functions transferred to the agent independently.

In one of the disputes, tax authorities recognized expenses and deductions for intermediary transactions as unfounded. The company justified the economic feasibility of concluding an agency agreement. She explained that she could not work with end customers directly (resolution of the Central District Court of November 19, 2014 No. A09-564/2014).

We engage in toll processing to reduce VAT

For manufacturing companies, a toll-based VAT optimization scheme with the participation of a simplifier is beneficial. It allows you to make maximum use of the benefits of special regimes without fragmenting your business.

In this case, the manufacturer produces products not at his own expense, but at the expense of friendly companies that act as supply customers. The manufacturer transfers minimum amounts of taxes to the budget, since a minimum amount of remuneration is established for processing work. The tolling organization applies a special regime and pays taxes at preferential rates.

An agreement for the processing of customer-supplied raw materials is, in fact, a type of contract (Chapter 37 of the Civil Code). The contractor may use a general system. But a significant part of its expenses will be salaries, insurance premiums and other costs excluding VAT. Therefore, it is more profitable for him to use a simplification.

There may be several givers. One of them may use a general system, the other a special regime. Most often this is the simplified tax system, but in the case of further retail sales of products it may be UTII or PSN. Providers independently or through a common purchasing agent purchase the necessary raw materials and materials for processing and transfer them to the processor.

The finished products belong to the dealers. They sell it to external buyers. If the dealer is on OSN, he sells products to large wholesalers who require VAT. If using the simplified tax system - for small wholesalers, budgets and other buyers who do not need VAT. If on UTII or PSN - to retail buyers.

The main advantage of working as a salesperson on the simplified tax system is the absence of VAT. This is especially important after the introduction of a new form of VAT declaration and a special ASK VAT 2 program. If a manufacturer uses the general system, then it pays taxes only on the cost of work on processing raw materials. The minimum possible price is set for these works.

Controllers may see an unjustified tax benefit in the tolling scheme. They will argue that the functions of tolling organizations are artificial, and that the purchase of raw materials and the sale of finished products is actually carried out by the manufacturer himself. To justify a tax benefit, you need a business purpose.

The manufacturer’s business objectives for concluding a tolling agreement may be:

lack of a sufficient customer base or access to raw material suppliers,
lack of working capital,
inability to attract debt financing.

But at the same time, the manufacturer has equipment, a good business reputation, a streamlined production process, qualified personnel, and work experience. Everything that the seller doesn’t have.

The main advantage of working as a salesperson on the simplified tax system is the absence of VAT. This is especially important after the introduction of the new VAT return form and the ASK VAT 2 program.

Arbitration practice

If the business purpose is obvious, taxpayers can defend their case in court. An example is the resolution of the AS of the West Siberian District dated January 31, 2017 No. F04-6830/2016.

Tax officials accused the company of creating a “business fragmentation” scheme by creating controlled dealers using a simplified taxation system. The goal is to obtain an unjustified tax benefit for VAT and income tax.

The taxpayer presented the following arguments in his favor:

the price of processing a unit of product was not fixed, but was calculated monthly taking into account the costs actually incurred for processing, using a trade margin and charging VAT;
the company fully took into account the income received from this activity in accounting and tax accounting;
the taxpayer sold similar products at lower, that is, more competitive prices than the applicant;
As a result of concluded transactions, budget losses are responsible.

We split the business to reduce VAT

The essence of splitting a business to optimize VAT is that a general regime company formally creates several simplified companies that have the right not to pay VAT. The danger here lies precisely in the word “formally”. If several organizations are really necessary for business, then splitting is legal.

Among the most common grounds that tax authorities identify when establishing a fictitious division of a business, one can note such signs of the lack of independence of friendly companies, such as:

formal signing of documents;
lack of personnel, property, vehicles;
work exclusively with internal counterparties;
similar activities of several companies or employees;
use of intermediary agreements;
monetary transactions of a transit nature;
registration on one day, shortly before concluding contracts with the main company;
coincidence of legal addresses serving banks, directors, chief accountants, etc.;
termination of activities through reorganization in the form of merger with other legal entities.

If we talk about VAT optimization using the example of an organization, we can distinguish two typical situations in which medium and large businesses use business fragmentation.

Situation 1. The business is divided into several legal entities using the simplified tax system, each of which carries out independent operations within the framework of the general commercial activities of the group.

In general, judicial practice in this situation is developing, rather, in favor of taxpayers (resolutions of the North-Western AS of 03/02/2016 No. A56-22627/2015, West Siberian of 05/06/2016 No. A27-19625/2014, Ural of 12/16/2015 No. A60-12924/2015, Far Eastern district No. A51-34304/2014 dated 10/07/2015).

There are also negative practices for this type of crushing (determination of the Supreme Court dated November 27, 2015 No. 306-KG15-7673, resolution of the Federal Antimonopoly Service of the West Siberian dated August 16, 2013 No. A81-3642/2012 and the West Siberian AS dated February 6, 2017 No. A27-10743 /2016 districts). It is older, but it still shows that even with complete independence of legal entities, there is a risk of additional charges.

Situation 2. Each of the legal entities created during splitting on the simplified tax system takes on some part of the overall activity. Unlike the previous situation, in this case, judicial practice is not in favor of taxpayers (resolutions of the East Siberian AS dated October 13, 2016 No. A74-9292/2015, West Siberian AS dated March 2, 2016 No. A45-2687/2015, Moscow dated April 3. 2013 No. A40-22050/2012, North-Western district No. A13-7050/2013 dated 02/06/2017).

There is also positive practice (resolutions of the Ural District No. A76-3351/2013 dated July 31, 2015, the North Caucasus District No. A63-4162/2014 dated May 25, 2015, and the East Siberian District No. A19-16584/2013 dated February 3, 2015).

As the Constitutional Court notes in Resolution No. 3-P dated February 24, 2004, judicial control is not intended to check the economic feasibility of decisions made by business entities that have independence in the business sphere. Due to the risky nature of business, there are objective limits in the ability of courts to identify the presence of business miscalculations in it.

In the ruling of the Constitutional Court dated July 4, 2017 No. 1440-O, Judge Aranovsky expressed a special opinion that the fragmentation of a business, in principle, does not constitute an offense. Conducting activities through several persons is not prohibited. The tax code explicitly allows interdependence. There should be no talk of intent at all, since any company or entrepreneur is registered with the inspectorate intentionally, and not by accident.

Fragmentation of a business, in principle, does not constitute an offense. Conducting activities through several persons is not prohibited.

When tax authorities fail to hold taxpayers accountable for business fragmentation

Analysis of judicial arbitration practice allows us to identify a number of reasons when tax authorities fail to hold taxpayers accountable for business fragmentation. For example, court decisions were made in favor of taxpayers in the following cases:

the tax authority did not prove the existence of a formal document flow, all links in the trade and production chains confirmed the reality of the transactions, or the inspection did not make such requests (Resolution of the AS of the Ural District dated January 12, 2018 No. F09-8406/17);
delivery of products is confirmed by correctly executed primary and tax documents and the inspection does not dispute the reality of the transaction, and the counterparties independently carried out their business activities (Resolution of the North Caucasus District Administration of October 18, 2017 No. F08-7598/2017);
The legislation does not contain grounds under which unreasonably reimbursed VAT when exporting goods is subject to additional assessment to a third party who did not export the goods and did not submit VAT for reimbursement from the budget (Resolution of the Autonomous District of the North-Western District dated May 3, 2017 No. F07-3073/2017).

Leading lawyer of the tax law department
Dorofeev S.B.

Tax optimization: illegal, semi-legal and legal methods

Optimization of taxation in general, and value added tax in particular, is a vast topic that is simply impossible to fully cover within the framework of one work. Currently, even a separate type of specialists in the tax field is beginning to emerge, specializing exclusively in searching and identifying for taxpayers various ways to reduce VAT, as well as other taxes.

Traditionally, in this matter, methods of minimizing the tax burden are classified into illegal, semi-legal and legal (legal).

In most cases, an illegal way to optimize taxation (the so-called “black optimization”) is a banal non-payment of taxes, disguised by certain circumstances. In the case of a VAT reduction, such non-payment is perhaps more common than with any other tax due to its indirect nature and the complexity of calculation.

It should be noted that over the years of the existence of a market economy, Russian entrepreneurs have come up with many specific ways not to pay taxes and, in particular, to reduce VAT in a black way, however, their essence in most cases is the same - this is the use of tax deductions by one organization (in many cases leading to tax refund from the budget) and non-payment of output VAT by another, interconnected organization from which goods, works, services are purchased (often fictitiously). In general, this scheme represents one link of the so-called. “carousel” VAT refund schemes, when each subsequent buyer of a product reimburses the VAT charged by the seller, and each subsequent seller does not pay this VAT to the budget.

Concealing objects of taxation, for example, unaccounted sales of products or unaccounted receipt of other benefits subject to taxation, also applies to these methods of optimizing VAT.

Semi-legal methods include formal compliance with the norms of the Tax Code of the Russian Federation, but using them without a business purpose, solely for the purpose of reducing VAT and other taxes. Examples of such methods of optimizing taxation are the artificial division of large businesses into smaller ones in order to apply special tax regimes (except for cases of legal means of exercising the right to freedom of economic activity and the use of these regimes), transferring employees to an organization on the simplified tax system in order to minimize the unified tax (currently time, however, is no longer relevant), fictitious hiring of disabled people for the purpose of using benefits, prepayment with a loan in order not to pay value added tax on the advance, payment of a penalty that is not included in the VAT tax base, but is economically the price of the goods, etc. etc., thousands of them.

A distinctive feature of these schemes, as already noted, is the obligatory element of fictitiousness or artificiality of certain circumstances that allow the taxpayer to achieve a reduction in VAT payable and, in general, the tax burden. That is, obtaining a tax benefit in such situations is the sole business goal of the taxpayer.

Naturally, receiving such a benefit is considered unlawful according to the clarifications of the Supreme Arbitration Court of the Russian Federation (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53 “On the assessment by arbitration courts of the validity of the taxpayer receiving a tax benefit”).

However, it is in these schemes that the degree of discretion and subjective assessment of legally significant circumstances (primarily the business purpose) is greatest on the part of tax authorities and courts, which, at their own internal discretion (within certain limits, of course) can establish the presence or absence of the specified purpose from the taxpayer. In fact, these powers were granted to them by the Supreme Arbitration Court of the Russian Federation in the said Resolution.

Given these circumstances, taxpayers are trying to create the appearance of business purposes in their actions, passing off a reduction in the tax burden as a by-product. It is during the development of such schemes that the “creative” potential of the “specialists” indicated at the beginning of this article, who come up with these goals and “create” documentation for their implementation, can be revealed to the greatest extent.

The development and implementation of such methods for optimizing VAT and other taxes is, of course, actively discussed in practical implementation in taxation, however, it is worth taking into account the tax and criminal law consequences of such optimization established by law, in particular the experience of the management of the well-known company YUKOS.

We should also not forget about the legal opportunities to reduce VAT and other taxes.

It should be noted here that usually such opportunities are associated with a certain choice provided by the Tax Code of the Russian Federation to the taxpayer in the specific situation of his actual economic activity. Having calculated the taxation options, the taxpayer can simply make the most beneficial choice specifically for him, while, given the reality of the transactions, the presence of a business purpose in such cases does not play as important a role as with semi-legal methods.

A legal way to optimize VAT and other taxes is, for example, to choose for business activities operations that are not subject to VAT under Art. 149 of the Tax Code of the Russian Federation, or export transactions that allow systematic reimbursement of VAT from the budget, the choice of one or another taxation regime when creating a company, making investments through an offshore founder or lender, allowing to minimize income tax in connection with the application of double taxation agreements, the choice of more profitable method of calculating depreciation (including the use of accelerated depreciation), development and application of an effective method of separate accounting for VAT (separate accounting of incoming VAT).

Such methods of tax optimization are the most resistant to claims from tax authorities and are, in fact, not optimization, but competent tax planning of business activities, allowing to achieve the necessary tax savings with acceptable tax risks.

Speaking about ways to optimize VAT, as well as other taxes in general, one cannot fail to mention such a favorite method among Russian entrepreneurs as the formation of profit centers in interdependent entities with a reduced tax burden. Perhaps we can say that this method of minimizing taxes is the most common in the Russian business environment due to the potential for significant savings and, at the same time, not being priced too much.

Typically, this method is implemented through various types of intermediary agreements (although there are others) with interdependent persons and price manipulation in transactions with them. So, for example, an enterprise can sell its products through an agent on the simplified tax system, whose remuneration economically accounts for almost the entire profit of the enterprise. In this case, VAT on agency fees is not paid at all, and income tax is paid at a reduced rate of 5 to 15%.

Or, for example, an enterprise using the simplified tax system (or even better, an offshore company) can provide certain services to the main company, thus withdrawing its profits and taxing it at a lower rate.

At the same time, one can even say that such actions of the taxpayer are legal, but with one caveat, which is nevertheless of great importance. The tax consequences of such activities should not differ from the consequences that would have occurred if the parties to the transaction were not interdependent. That is, the state does not prohibit the seizure of profit in this way and taking it anywhere, even abroad, but it requires taxes to be paid in Russia.

Needless to say, none of the companies involved in such tax optimization pay extra taxes in Russia voluntarily. Meanwhile, a separate head of the Mechel company for his passion for this method of optimization (with the help of an offshore agent) was publicly reprimanded by senior government officials on this issue, indicating the possibility of conducting a targeted audit to eliminate possible problems.

General trend in regulating tax optimization, including VAT optimization

Finally, we note that from the trends in the development of tax law in the Russian Federation, we can conclude that the state has decided to pay close attention to this particular method of tax optimization (including in terms of VAT optimization) and to combat it most actively. In this regard, on January 1, 2012, Section V.1 of the Tax Code of the Russian Federation on control over pricing in transactions between related parties came into force, for the most part introducing completely new institutions and concepts into the tax system of the Russian Federation (for example, controlled transactions), and also new forms of control (special types of price checks in controlled transactions).

In this context, it can be noted that in modern conditions, optimization of taxation as an element of freedom of economic activity requires a balanced approach to solving the task - primarily in terms of minimizing the risk of occurrence and negative development of tax disputes for taxpayers when recovering VAT and implementing other measures to achieve tax compliance. savings.

One of the most difficult taxes to optimize is value added tax. In principle, Russian tax legislation provides for quite a lot of legal schemes and ways in which this tax can not be paid at all, or paid in a reduced amount. However, most enterprises and organizations cannot, do not want, or do not know how to take advantage of such tax benefits.

Planning and optimizing VAT is not an easy task. But, as practice shows, it is still solvable.

So what is value added tax?

This tax is, as mentioned above, one of the most complex in tax legislation and belongs to the group of indirect taxes. Indirect taxes

These are taxes on goods and services, established in the form of surcharges on the price of goods or on tariffs for services and do not depend on the income of taxpayers (unlike direct taxes related to income). When indirect taxes are introduced, producers (sellers) of goods and services sell them at prices and tariffs, taking into account the tax surcharge, which is then transferred to the state. Thus, manufacturers and sellers act as tax collectors authorized by the state, and the buyer becomes the payer of this tax. The following operations are recognized as the object of VAT taxation in accordance with Article 146 of the Tax Code of the Russian Federation:

Sale of goods (work, services) on the territory of the Russian Federation, including the sale of collateral and transfer of goods (results of work performed, provision of services) under an agreement on the provision of vacation pay or innovation, as well as transfer of property rights;

Transfer of goods (work performed, services provided) on the territory of the Russian Federation for one’s own needs, expenses for which are not deductible (including through depreciation charges) when calculating corporate income tax;

Carrying out construction and installation work for own consumption;

Import of goods into the customs territory of the Russian Federation.

Optimization of VAT taxation will be a reduction in the size of tax liabilities through targeted lawful actions of the taxpayer, including the full use of all tax benefits provided by law and other legal techniques and methods.
In other words, this is the organization of the activities of an enterprise or organization in which tax payments for VAT are reduced to a minimum legally, without violating the norms of tax, administrative and criminal legislation.

How to optimize VAT?

It should be noted that there are many methods and schemes for optimizing VAT. Here are some of them:

1. One of the schemes for optimizing VAT is replacing part of the cost of goods sold with interest on a commercial loan.

In accordance with Article 823 of the Civil Code of the Russian Federation, contracts, the execution of which is associated with the transfer into the ownership of another party of amounts of money or other things determined by generic characteristics, may provide for the provision of a loan, including in the form of an advance, prepayment, deferment and installment payment for goods, works or services (commercial loan). That is, the seller, under a commercial loan agreement, reduces the value of the property and provides a deferment. In this case, it charges interest, the amount of which is equal to the discount. As a result, it turns out that part of the proceeds from the sale of goods from the seller is not subject to VAT. However, tax authorities insist that interest on a commercial loan is subject to VAT. At the same time, they refer, firstly, to Article 823 of the Civil Code of the Russian Federation, from which it follows that the provision of a commercial loan (and therefore interest) is directly related to payment for goods. Secondly, they refer to the fact that Chapter 21 of the Tax Code of the Russian Federation directly exempts from VAT only interest on a commodity loan, and then only to the extent not exceeding the refinancing rate of the Bank of Russia.

Meanwhile, judicial and arbitration practice adheres to a different point of view.

In paragraph 14 of the joint Resolution dated 08.10.98 of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 13 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds”, the following is emphasized: the supplier is given the right to indicate in the contract the obligation the buyer must pay interest on the amount corresponding to the price of the goods, starting from the day the goods are transferred by the seller. This interest, accrued (unless otherwise provided by the contract) until the day when payment for the goods was made, is a payment for a commercial loan. It has, therefore, been made clear that the said percentages do not increase the price of the goods; they are payments for the use of funds and are not related to payment for goods. Therefore, interest on a commercial loan should not be subject to VAT. This conclusion is also fully confirmed by the Resolution of the Federal Antimonopoly Service of the East Siberian District dated 05.08.08 No. A33-3593/08-F02-3654/08.

2. The next method is to use one of the intermediary commission, agency or commission agreements instead of a purchase and sale agreement for the purpose of VAT optimization.

Quite often in practice, situations arise when trade organizations are forced to work with suppliers who are not VAT payers (using special tax regimes under the simplified tax system and UTII, or exempt from paying VAT under Article 145 of the Tax Code of the Russian Federation). In this case, these trading organizations do not have the right to deduct any amount of VAT on purchased goods, since the sellers of the goods do not pay this tax: they either issue the buyer an invoice with zero VAT (in case of exemption under Article 145 of the Tax Code RF), or they do not issue an invoice at all (when paying UTII or when applying the simplified tax system). In the future, when reselling this product, these trade organizations (if they apply the general taxation system) will be required to calculate and pay VAT to the budget on the entire cost of the products sold. In such situations, the use of an agreement, for example, a commission, under which a friendly or subsidiary intermediary organization will act as a commission agent (i.e., sell goods on behalf of its supplier, without acquiring ownership of the goods being sold) and participate in payments from own name, allows you to pay VAT only on the amount of your remuneration, which, in essence, is nothing more than a trade margin (Article 156 of the Tax Code of the Russian Federation).

It is easy to calculate the benefits of using this method. The amount of VAT payable is equal to the difference between the VAT that the intermediary organization would charge upon shipment to the consumer and the tax deduction that arises after payment of the product to the supplier who is not exempt from paying this tax. It turns out that buyers working with counterparties-sellers on the simplified tax system or UTII, or exempt from VAT, must pay less value added tax than if the relationship between partners was based on a purchase and sale agreement.

3. Another way to optimize VAT in this situation is to defer VAT payment.

For example, a “simplified” seller still issues an invoice to the buyer with allocated VAT. In accordance with paragraph 5 of Art. 173 of the Tax Code of the Russian Federation, issuing invoices with VAT of the Tax Code of the Russian Federation is not prohibited not only for “simplified” people, but also for any VAT defaulters. Having issued a VAT invoice, he transfers the tax to the budget not immediately, but with a long delay. In turn, the buyer counterparty reimburses this amount of tax from the budget. In general, such a group of companies will receive an economic benefit in the amount of VAT reimbursed from the budget for the duration of the deferment received. In this situation, tax officials, defending their position, advanced the argument: since the supplier is not a VAT payer, then he does not have the right to issue VAT invoices. Such a dispute was the subject of judicial consideration, and the Supreme Arbitration Court of the Russian Federation, in its Ruling dated February 13, 2009 No. VAS-535/09, confirmed that a trade organization under the general regime does not lose the right to deduct VAT on invoices issued to it by a “simplified person.”

A deferment from paying VAT can also be obtained by establishing in the sales contract a special procedure for transferring ownership of the goods.
In accordance with clause 1 of Article 223 of the Civil Code of the Russian Federation, the right of ownership of the acquirer of a thing under a contract arises from the moment of its transfer, unless otherwise provided by law or contract. In turn, the object of VAT is the sale of goods, works, and services. At the same time, according to clause 1 of Article 39 of the Tax Code of the Russian Federation, the sale of goods recognizes the transfer of ownership of these goods.

Consequently, in the absence of a transfer of ownership of the goods, the object of VAT taxation does not arise. Thus, the contract can establish such a procedure for the transfer of ownership of a product or part of a product that provides the maximum deferment of payment of VAT to the budget.

4. The next way to optimize VAT is to include discounts for distributors for a selected volume of purchases in the VAT tax base.

For example, a taxpayer - a legal entity - has entered into distribution agreements with purchasing organizations (distributors) for the distribution and sale of goods to third parties. At the same time, product sales plans were developed. This is confirmed by an annex to the distribution agreements. In order for distributors to buy more, the taxpayer developed and introduced a system of discounts. At the same time, in the contracts concluded by the taxpayer with counterparties, only the base price of the goods was indicated without taking into account the discount. The same price was recorded in the primary shipping documents. At the end of the tax period, the organization determined the volume of purchases of each distributor and provided him with a discount for the previous quarter. In the current period, the organization reduced the price of goods already shipped and adjusted the VAT base based on “negative” invoices.

According to tax authorities, discounts provided to distributors are not related to changes in the price of the product, i.e. the taxpayer unlawfully adjusted revenue and underestimated the VAT tax base.

The stated situation was the subject of consideration by the Supreme Arbitration Court of the Russian Federation.
Thus, in its Resolution No. 11175/09 of December 22, 2009, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated: “As established by the courts, the company sold its goods through a network of distributors during the tax periods in question. When concluding distribution agreements, it was provided that distributors distribute and sell goods to third parties, while in order to motivate the latter to increase the volume of purchased goods, increase the market share of goods, develop distribution of goods, and also strengthen payment discipline, the company, in agreement with the distributor, establishes a system of discounts from the price of the product (system of bonus discounts). The discount is provided to the distributor based on performance results as a percentage of the volume of goods sold for a certain period, in particular for fulfilling the sales plan, timely payment, achieving set goals (for special efforts to promote the product on the market).

The courts, refusing to satisfy the company's claim in this part, came to the conclusion that retrospective discounts (bonus discounts) provided to distributors are discounts that do not change the price of the goods, since such discounts were determined by the company as a percentage of the total cost of all goods sold for the previous period, and the supply contracts do not indicate the initial price of the goods and the price formed taking into account the discounts provided to the buyer.”

However, taking into account what is stated in paragraph 1 of Article 39, paragraph 2 of Article 153 and paragraph 4 of Article 166 of the Tax Code of the Russian Federation, the Presidium of the Supreme Arbitration Court of the Russian Federation came to the conclusion that, regardless of how the parties to the distribution agreement determined the incentive system: by providing a discount that determines the size of a possible reduction in the base price of the product specified in the contract, or providing a bonus - an additional remuneration, a premium provided by the seller to the buyer for fulfilling the terms of the transaction, as well as regardless of the procedure for providing discounts and bonuses (transfers to a current account, offset as advance payment or reduction of debt) when determining the tax base, the amount of revenue is subject to determination taking into account discounts, and, if necessary, adjustment for the tax period in which the sale of goods (work, services) is reflected.

Thus, on the basis of the provisions of paragraph 1 of Article 153 and paragraph 4 of Article 166 of the Tax Code of the Russian Federation, the tax base for the purpose of calculating the amount of VAT is subject to determination taking into account discounts, and if these discounts are provided after the date of shipment of goods - adjustment for the tax period, when the corresponding shipment of goods is reflected. This is confirmed by the above Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation N 11175/09.

5. A type of activity that is completely exempt from VAT due to the provisions of paragraphs. 4 paragraph 3 art. 149 of the Tax Code of the Russian Federation.

The specified subparagraph of this article reads: “The following operations are not subject to taxation (exempt from taxation) on the territory of the Russian Federation: 4) operations carried out by organizations that provide information and technological interaction between settlement participants, including the provision of services for the collection, processing and distribution of information to settlement participants on transactions with bank cards."

If we read this norm literally, it turns out that all operations carried out by such organizations are exempt from VAT, and not just operations related to ensuring interaction between participants in settlements. Therefore, it is enough for an organization, for example, to rent terminals connected to any payment system and accept payments independently. This will be “information and technological assistance in calculations,” although this concept is not officially explained anywhere. As a result, the organization fulfills the requirements established by the Tax Code of the Russian Federation, therefore all operations carried out by it are not subject to VAT on the basis of clause 4 of clause 3 of Art. 149 of the Tax Code of the Russian Federation.

It should also be taken into account that in accordance with clause 7 of Article 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities in acts of legislation on taxes and fees are interpreted in favor of the taxpayer.

Exemption from VAT will allow you to reduce the price to increase competitiveness, as well as generate additional profits.

6. Exclusion from the VAT tax base of funds received to pay for services to preferential categories of citizens.

In accordance with paragraph 2 of Article 154 of the Tax Code of the Russian Federation, when selling goods (work, services), taking into account subsidies provided by the budgets of the budget system of the Russian Federation in connection with the use by the taxpayer of state regulated prices, or taking into account benefits provided to individual consumers in accordance with the law, the tax base is defined as the cost of goods (work, services) sold, calculated on the basis of their actual sales prices.

The amounts of subsidies provided by the budgets of the budgetary system of the Russian Federation in connection with the use by the taxpayer of state regulated prices, or benefits provided to individual consumers in accordance with the law, are not taken into account when determining the tax base.

Taxpayers believe that amounts to cover losses and amounts to compensate the taxpayer’s expenses are not included in the VAT tax base. At the same time, funds received to pay for services to preferential categories of citizens must be included in the tax base on the basis of paragraphs. 2 p. 1 art. 162 of the Tax Code of the Russian Federation (the tax base increases by the amounts received for sold goods (work, services) in the form of financial assistance, to replenish special-purpose funds, to increase income or otherwise related to payment for sold goods (work, services).

Meanwhile, judicial practice is developing in favor of taxpayers:

Thus, in the Resolution of the Federal Antimonopoly Service of the Moscow District dated April 26, 2010 N KA-A40/3844-10 in case N A40-101211/09-80-665, the conclusion was made: subsidies provided to the company are not amounts received to increase income. These funds cannot be included in the tax base on the basis of Art. 162 of the Tax Code of the Russian Federation, because they were received as part of targeted financing aimed at paying off the company’s expenses. “As the courts correctly pointed out, from the meaning of paragraphs. 2 p. 1 art. 162 of the Tax Code of the Russian Federation does not entail the taxpayer’s obligation to include amounts of subsidies in the VAT taxable base, since such funds cannot be regarded as received for goods (work, services) sold in the form of financial assistance, to replenish special-purpose funds, to increase income or otherwise related to payment for goods (work, services) sold.

Taking into account the above, the courts correctly concluded that subsidies provided to the taxpayer as a result of the application of state regulated prices or the provision of benefits to individual consumers in accordance with the law should not be included in the tax base for value added tax.”

A similar conclusion was made by the Federal Antimonopoly Service of the Volga District in its Resolution dated February 12, 2009 in case No. A06-2848/2008 - since budget funds were allocated to reimburse expenses associated with the sale of utilities by the enterprise at preferential prices, they cannot be included in the tax base for VAT. The tax authority’s argument that such funds are subject to inclusion in the tax base on the basis of paragraphs. 2 clause 1 of article 162 of the Tax Code of the Russian Federation, was declared insolvent.

7. Tax scheme for the sale of property without VAT through a simple partnership.

The Tax Code of the Russian Federation does not require the restoration of VAT when transferring property to a simple partnership. This was confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation, indicating in its Resolution No. 2196/10 of June 22, 2010 that the norms of the Tax Code of the Russian Federation do not establish for a taxpayer who has entered into an agreement on joint activities (a simple partnership agreement), the obligation to restore the tax previously presented to deduction. “The provisions of Art. Art. are not applicable to the situation under consideration in terms of resolving the issue of the existence of an obligation to restore the value added tax. 39 and 146 of the Tax Code of the Russian Federation, since the circle of persons who are entrusted with the obligation to restore the tax previously declared for deduction is established by Art. 170 of the Code and is not subject to broad interpretation. The fact that, according to paragraph 3 of Art. 39 of the Tax Code of the Russian Federation, contributions under a simple partnership agreement are not recognized as sales; it only indicates that such a transfer does not form an object of taxation for value added tax. At the same time, transactions carried out under a simple partnership agreement are recognized as subject to value added tax in accordance with Chapter 21 of the Tax Code of the Russian Federation, and the calculation and payment of this tax, including the application of tax deductions, is carried out by a participant in the partnership in the manner prescribed by Article 174.1 of the Tax Code of the Russian Federation.” .

Taking into account the above, a tax scheme for the sale of property without VAT through a simple partnership is acceptable, when several participants make contributions to a joint activity in the form of real or movable things, as well as cash, and in the event of a break in relations they simply exchange contributions.

8. In addition to the above schemes and methods for optimizing VAT, there are also many other methods:

a) execution of a loan agreement instead of prepayment or advance payment. Under the terms of such a loan agreement, the buyer provides a loan to the seller in an amount equivalent to the advance amount. The date of repayment of borrowed funds is close to the date of delivery of goods (provision of services, performance of work). In this case, the purchase and sale agreement must indicate that the goods (work, service) will be supplied without receiving an advance payment. It is also desirable that the loan amount does not coincide with the amount of the cost of the goods (work, service), and the date of repayment of the borrowed funds does not coincide with the date of delivery of the goods (performance of work, provision of services);

b) execution of a deposit agreement instead of an advance payment or advance payment. In accordance with the Civil Code of the Russian Federation, a deposit is recognized as a sum of money given by one of the contracting parties in payment of payments due from it under the contract to the other party, as proof of the conclusion of the contract and to ensure its execution. Thus, the deposit is not an advance payment for goods (work, services). Its purpose is to ensure the fulfillment of obligations. Consequently, the seller does not need to charge VAT on the amount received as a deposit; c) buyers of goods subject to VAT at a rate of 10% may overestimate the VAT deduction on prepayment. The Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 10120/10 dated January 25, 2011, came to the conclusion that VAT on the prepayment amount can be calculated at the calculated rate of 18/118, regardless of which goods are planned to be supplied in the future under the contract: taxable at the rate of 18 % or 10%. It follows from this that goods whose sales are taxed at a rate of 10% are more profitable to purchase with prepayment. In this case, the seller will issue an invoice for the advance payment, where VAT will be calculated at a rate of 18, not 10%. Naturally, then these amounts will have to be adjusted and additional taxes will have to be paid. But the organization received a VAT benefit due to the temporary gap between prepayment and shipment. The larger the time gap, the greater the benefit.

However, when using all of the above, as well as other schemes and methods for optimizing VAT, one must clearly remember and follow the basic rule: all methods and schemes must necessarily have an economic justification and proper documentation, all business transactions must be accompanied by primary documents drawn up in the manner prescribed by law .

In addition to the above, in conclusion it should be said about some practical conclusions:

You should always remember another rule of tax optimization: the scheme must be invisible to inspectors;

When choosing specific forms of optimization, it is imperative to determine the acceptable degree of tax risks, including taking into account law enforcement and judicial practice;

The introduction of any method of VAT optimization must have clearly defined business goals and be accompanied by a serious legal justification, and only the result of this will be a tax benefit.

With all this, it should be taken into account that unsuccessful optimization of not only VAT, but also any other tax, can lead to conflicts between the organization not only with the tax authorities, but also with its counterparties and with its employees.

Yuri Fedotenko

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