"Tax Expert", 2006, N 5

Background

Since the entry into force of Ch. 21 of the Tax Code of the Russian Federation, disputes regarding the imposition of value added tax on transactions with property rights do not subside. The reason for this was the obvious shortcomings of legal technology, as well as the inconsistency of the legislator in the issue of taxation of transactions related to the transfer of property rights.

First edition of Art. 146 of the Tax Code of the Russian Federation did not include transactions on the transfer of property rights among the objects of VAT taxation: the general provisions contained in paragraph 1 of this article on the inclusion of the operation of the sale of goods among the transactions subject to VAT could not be applied to property rights, since, according to Art. 38 of the Tax Code of the Russian Federation, such rights did not apply to property, and, accordingly, to goods. Special instructions on the inclusion of transactions with property rights in the object of VAT taxation in Chapter. 21 were also not contained.

Without establishing the object of taxation, the legislator nevertheless considered it possible to include in the Tax Code of the Russian Federation rules on the specifics of determining the tax base when carrying out transactions related to the assignment of a claim. At the same time, Art. 155 of the Code remained the only article of Ch. 21, from which some prerequisites for the taxation of assignment of claims followed.

It should be noted that such inattention of the legislator led to the fact that not only the turnover of obligatory rights, but also the transfer of real rights (use and ownership) fell out of the list of transactions subject to VAT.

Federal Law No. 57-FZ of May 29, 2002 introduced Art. 146 of the Tax Code of the Russian Federation, changes that included transactions on the transfer of property rights among the objects of taxation, and the effect of these changes was extended to legal relations that arose from January 1, 2002. However, the establishment of an object did not eliminate the uncertainty in the issue of taxation of transactions related to the turnover of rights of obligation. Thus, the issue of the so-called primary assignment of the claim, when the creditor under the main agreement transfers his right of claim to a third party, remained unresolved.

The procedure for determining the tax base for transactions of assignment of claims was established by Art. 155 Tax Code of the Russian Federation. In accordance with paragraph 1 of this article, “when assigning a claim arising from a contract for the sale of goods (works, services), transactions for the sale of which are subject to taxation, or transfer of the specified claim to another person on the basis of law, the tax base for transactions for the sale of these goods (works) , services) is determined in the manner prescribed by Article 154 of this Code."

Analysis of paragraph 1 of Art. 155 of the Tax Code of the Russian Federation allows us to conclude that the tax base for transactions of sale of goods (works, services) is determined by the agreement from which the rights are assigned, and not by transactions of assignment of the right of claim.

Clause 2 of Art. 155 of the Tax Code of the Russian Federation establishes the procedure for determining the tax base during the subsequent exercise of the right of claim by a new creditor, that is, this clause has nothing to do with the initial assignment of the right of claim.

Thus, Art. 155 of the Tax Code of the Russian Federation determines the tax base only for a secondary assignment of the right of claim, that is, when a new creditor, to whom the right of claim has been transferred, cedes such right to the next creditor.

General principles for determining the tax base for the sale of goods (work, services), established by Art. 154 of the Tax Code of the Russian Federation cannot apply to the implementation of property rights, since in accordance with this article the tax base is determined for the sale of goods (work, services).

Thus, the legislator, having established the transfer of property rights as an object of taxation, did not establish a procedure for determining the tax base for the initial assignment of the right of claim.

According to Art. 17 of the Tax Code of the Russian Federation, a tax is considered established only if the taxpayers and elements of taxation are determined, namely:

object of taxation;
tax base;
tax period;
tax rate;
tax calculation procedure;
procedure and deadlines for tax payment.

The absence of any of the listed elements means that the tax cannot be considered established and the taxpayer has no obligation to pay it. Consequently, even after changing Art. 146 of the Tax Code of the Russian Federation, the initial assignment of a claim was not subject to VAT.

However, even in cases where the taxpayer did not have any difficulties with calculating tax on transactions of assignment of claims, for example, during assignment, other problems arose related to insufficient regulation of issues regarding the taxation of the turnover of property rights. One of the most significant problems faced by taxpayers carrying out transactions involving the purchase and sale of property rights was the formal impossibility of deducting the amount of tax paid upon the acquisition of property rights. Articles 171 and 172 of the Tax Code of the Russian Federation established only the right to deduct VAT paid upon the acquisition of goods (works, services), but did not say anything about VAT paid upon the acquisition of property rights. In such a situation, the taxpayer could either refuse to deduct the tax paid to the assignor or defend his right to a deduction in court.

Taxation of transactions involving the transfer of monetary claims

Changes made to Ch. 21 of the Tax Code of the Russian Federation, Federal Law No. 119-FZ of July 22, 2005, affected, among others, the taxation of transactions on the transfer of property rights.

The legislator has finally eliminated the uncertainty in the application of tax deductions when acquiring property rights: from January 1, 2006, Art. Art. 171 and 172 of the Tax Code of the Russian Federation fully apply to transactions with property rights.

Art. has also undergone significant changes. 155 of the Code, which from January 1, 2006 is called “Features of determining the tax base when transferring property rights.” Clause 1 of the article underwent the least amendments: the legislator only endowed the assigned right of claim with a qualifying feature, and now clause 1 relates exclusively to monetary claims. Under a monetary claim in accordance with Art. 11 of the Tax Code of the Russian Federation and Art. 826 of the Civil Code of the Russian Federation, one should understand the right of the creditor to receive funds from the debtor.

The necessity of the norm established by paragraph 1 of Art. 155 of the Tax Code of the Russian Federation has always raised doubts, since it, in fact, duplicated the provisions of Art. Art. 154 and 167 of the Code. Taking into account the transition to calculating VAT at the time of shipment, the existence of this rule only introduces uncertainty into tax relations, since by the time the taxpayer could use it (at the time of assignment of the right of claim), the value added tax on sales transactions, as usually already calculated and paid. In this regard, it is not clear what the legislator was guided by, not only not excluding this norm, but also introducing “cosmetic” amendments to it.

According to paragraph 2 of Art. 155 of the Tax Code of the Russian Federation, “the tax base upon assignment by a new creditor who has received a monetary claim arising from an agreement for the sale of goods (work, services), transactions for the sale of which are subject to taxation, is determined as the amount of excess income received by the new creditor upon subsequent assignment of the claim or upon termination of the corresponding obligation, over the amount of expenses for the acquisition of the specified claim."

The legislator excluded from the text of the norm an obscure phrase about the sale of certain financial services related to the assignment of a claim. No other changes were made to clause 2. At the same time, the question remains open of what is meant by “income received by the new creditor upon termination of the relevant obligation.” The wording itself is clear: the assignee who has received the right of claim can receive income as a result of the termination of the obligation; income can be received as a result of the fulfillment of an obligation by the debtor or termination of the obligation in another acceptable way (offset, provision of compensation, etc.). But such income can be received only if, at the time of termination of the obligation, the assignee continued to remain a creditor under this obligation. Meanwhile, the hypothesis of the norm of paragraph 2 of Art. 155 of the Tax Code of the Russian Federation stipulates that the obligation to calculate the tax base arises only upon assignment of a claim, and this fits well with the concept of the tax base as a cost characteristic of the object of taxation, in this case, the transaction of transfer of property rights.

Thus, it is obvious that paragraph 2 of Art. 155 of the Code needs additional adjustments to eliminate internal contradictions and bring it into line with Art. 146 of the Tax Code of the Russian Federation.

As stated above, paragraph 2 of Art. 155 of the Tax Code of the Russian Federation establishes the procedure for determining the tax base when assigning a monetary claim arising from a contract for the sale of goods (work, services), transactions for the sale of which are subject to taxation. Cases of assignment of a monetary claim arising from other agreements are dealt with in paragraph 4 of this article. The tax base for such transactions is determined as the excess of the amount of income received upon subsequent assignment over the amount of expenses for acquiring the right of claim.

Clause 4 of Art. 155 of the Tax Code of the Russian Federation, in contrast to paragraph 2 of the article, leads to the need to calculate the tax base upon assignment of any monetary claim, including those arising from an agreement, transactions under which are not subject to value added tax<*>, as well as rights arising from non-contractual obligations (causing harm, unjust enrichment, etc.).

<*> For example, the right to demand repayment of the loan amount.

Provisions of paragraph 4 of Art. 155 of the Tax Code of the Russian Federation will most likely cause disputes between taxpayers and tax authorities. In addition to incorrect wording (legislators indicated the need to calculate the tax base not upon transfer, but upon acquisition of the right of claim), from a literal reading of this paragraph it follows that the taxpayer who purchased the right of claim must pay VAT even in cases where the right of claim is not transferred to them: “When when acquiring a monetary claim from third parties, the tax base is determined as the amount of excess of the amount of income received from the debtor and (or) upon subsequent assignment over the amount of expenses for the acquisition of the specified claim."

It is unclear whether such wording can be considered simply a lack of legal technique or a meaningful desire of the legislator to impose value added tax on any profit received by the taxpayer as a result of acquiring the right to claim. Returning to paragraph 2 of Art. 155 of the Tax Code of the Russian Federation, it should be recognized that the legislator is quite purposefully trying to expand the object of taxation at the expense of the tax base.

However, in any case, under the current version of the Tax Code of the Russian Federation, a taxpayer who has not completed operations to transfer the right of claim does not have an obligation to pay VAT. Articles 17, 38 and 146 of the Tax Code of the Russian Federation link the occurrence of the obligation to pay tax with the presence of an object of taxation. The object of VAT is the transfer of property rights, and not the profit from their acquisition.

According to Art. 53 of the Tax Code of the Russian Federation, the tax base is a cost, physical or other characteristic of the object of taxation. This article expresses the essence of such an element of taxation as the tax base: the tax base is always associated with the object of taxation, and the absence of this object makes it impossible to calculate the base. Accordingly, if the assignee, without transferring the right of claim to third parties, receives income from the right of claim as a result of the fulfillment of an obligation by the debtor, then he does not have an object of VAT taxation and, as a consequence, the obligation to pay tax.

It is worth noting that both paragraph 2 and paragraph 4 of Art. 155 of the Tax Code of the Russian Federation establishes the procedure for determining the tax base only when transferring monetary claims, that is, the rights to receive funds. At the same time, obligatory property rights are not limited to monetary ones: they include, among other things, the rights to demand the transfer of a thing, perform work, provide services, and each of such rights can also be assigned by the creditor. However, in Art. 155 of the Code there are no instructions on determining the tax base when assigning such claims (with the exception of the right to receive real estate).

Article 155 of the Tax Code of the Russian Federation still does not contain rules defining the procedure for determining the tax base for a primary assignment. However, if earlier taxpayers, in response to the claims of tax authorities, could refer to the fact that the Tax Code of the Russian Federation does not contain rules allowing to determine the tax base for such transactions, now such a position is not so clear: in addition to Art. 155 of the Tax Code of the Russian Federation, changes affecting the taxation of transactions on the transfer of property rights were also made to other articles of Chapter. 21, in particular in Art. 153 Tax Code of the Russian Federation.

According to paragraph 2 of Art. 153 of the Tax Code of the Russian Federation, when determining the tax base, proceeds from the sale of goods (work, services), transfer of property rights are determined based on all income of the taxpayer associated with settlements for payment for such goods (work, services), property rights received by him in monetary and (or ) in kind, including payment in securities.

It is possible that the Russian Ministry of Finance, relying on this norm, will come to the conclusion that it is necessary to calculate VAT on operations for the primary assignment, and the tax base will be defined as the entire proceeds from the transfer of the right of claim. Formally, such payment will not lead to double taxation, since the tax will be paid from different objects: the first time - from the transaction of sale of goods (works, services), the second - from the transaction of transfer of property rights. But in fact, this will mean that taxpayers will be forced to pay tax twice on the same amounts.

In our opinion, such logic does not correspond to the provisions of Art. 153 of the Tax Code of the Russian Federation.

In accordance with paragraph 1 of Art. 53 of the Tax Code of the Russian Federation must establish not only the tax base, but also the procedure for determining it. Clause 1 of Art. 153 of the Code determines that the tax base for the transfer of property rights is determined taking into account the features established by Chapter. 21 of the Code. The specifics of determining the tax base upon assignment of the right of claim are established by Art. 155 of the Tax Code of the Russian Federation, and the norms of this article do not contain provisions determining the tax base for the initial assignment. In turn, the provisions of paragraph 2 of Art. 153 of the Tax Code of the Russian Federation cannot be considered as a procedure for determining the tax base when assigning the right of claim: the norms of this paragraph establish only the procedure for determining revenue in cases where the norms of Art. 155 of the Code establishes a mechanism for determining the tax base.

Taxation of transactions involving the transfer of non-monetary claims

According to paragraph 3 of Art. 155 of the Tax Code of the Russian Federation, when transferring property rights by taxpayers (including participants in shared construction) to residential buildings or residential premises, shares in residential buildings or residential premises, garages or parking spaces, the tax base is determined as the difference between the cost at which property rights are transferred, taking into account the tax and costs of acquiring these rights.

This rule could put an end to the issue of taxation of transactions on the transfer of rights arising from investment agreements, especially since the practice of applying the previous version of Chapter. 21 of the Tax Code of the Russian Federation on this issue was not uniform: some courts indicated that the assignment of such rights is subject to value added tax<**>, others - that tax is not calculated on the transfer of such property rights<***>.

<**>See: Resolution of the Federal Antimonopoly Service of the Central District dated May 13, 2004 N A14-1047/03/353/24.
<***>See: Resolution of the Federal Antimonopoly Service of the North-Western District dated June 21, 2005 N A56-29388/04.

To some extent, the task of resolving this issue has been resolved by the legislator: from January 1, 2006, the transfer of rights to housing or garages is subject to VAT. However, having resolved one question, legislators posed another to taxpayers: is the transfer of property rights to non-residential premises (with the exception of garages and parking spaces) subject to tax and in what order?

Formally, taxpayers performing such transactions do not have obligations to pay VAT, since Art. 155 of the Tax Code of the Russian Federation does not contain a procedure for determining the tax base for such transactions. At the same time, it is doubtful that the legislator deliberately sought to exclude transactions for the transfer of property rights to non-residential premises from those subject to value added tax. Thus, even after the amendments are made, there remains room for disputes regarding the obligation to pay VAT on transactions of transfer of rights to non-residential premises.

It should be noted that the property right to real estate can arise not only from an equity participation agreement or other agreement related to the investment activities of its parties, but also from a real estate purchase and sale agreement. From a formal point of view, in this case, the buyer of real estate, who assigns the right to receive real estate from the seller, must pay VAT on such a transaction.

Tax base for the transactions listed in clause 3 of Art. 155 of the Tax Code of the Russian Federation is determined in the same manner as when calculating the tax base when selling property included in VAT, that is, as the difference between the cost at which property rights are transferred, taking into account tax, and the costs of acquiring these rights. In this case, the amount of tax, taking into account which the tax base should be calculated, should be understood as the amount determined in accordance with clause 2 of Art. 168 of the Tax Code of the Russian Federation based on the application of the tax rate to the price of the property right being sold.

Law N 119-FZ also included in the article under consideration a clause regulating cases of assignment of another type of non-monetary claims. According to paragraph 5 of Art. 155 of the Tax Code of the Russian Federation, when transferring lease rights and rights related to the right to conclude an agreement, the tax base is determined in the manner prescribed by Art. 154 of the Code.

The transfer of the right related to the conclusion of an agreement may take place when assigning the right arising from a preliminary agreement, as well as when transferring the right to conclude an agreement by a person who has won an auction or received it through a competition.

Provisions of paragraph 5 of Art. 155 of the Tax Code of the Russian Federation applies to the so-called lease, when the tenant transfers, with the consent of the lessor, his rights and obligations to another person under a lease agreement.

R.S. Kurbanov

Supervisor

legal department

Company "Audit - new technologies"

Tax Code of the Russian Federation, when assigning a monetary claim arising from a contract for the sale of goods (work, services) subject to VAT, or when transferring the specified claim to another person on the basis of law, the tax base for VAT for sales of the specified goods (work, services) is determined in the following manner: , provided for in Art. 154 of the Tax Code of the Russian Federation, unless otherwise provided in paragraph 1 of Art. 155 Tax Code of the Russian Federation.

The tax base for VAT when the original creditor assigns a monetary claim arising from a contract for the sale of goods (work, services), or when the said claim is transferred to another person on the basis of law, is determined as the amount of excess income received by the original creditor upon assignment of the right of claim over the amount of monetary claims for which rights have been assigned. See also letter of the Federal Tax Service of Russia dated November 14, 2011 N ED-4-3/18981@.

By virtue of the direct rule, when assigning the right of claim, the original creditor has a VAT taxable base only if the amount of his income under the assignment agreement exceeds the amount of the monetary claim for which the rights were assigned.

VAT on the transfer of property rights during shared construction

When transferring property rights by taxpayers (including participants in shared construction) to residential buildings or residential premises, shares in residential buildings or residential premises, garages or parking spaces, the tax base is determined as the difference between the cost at which property rights are transferred, including VAT and expenses for the acquisition of these rights (clause 3 of Article 155 of the Tax Code of the Russian Federation).

However, the Presidium of the Supreme Arbitration Court of the Russian Federation, in its resolution dated February 25, 2010 N 13640/09, indicated that property rights to real estate and to the property listed in clause 3 of Art. 155 of the Tax Code of the Russian Federation are classified as one type of objects of civil rights and their legal regime in relation to issues of VAT calculation, if the legislation on taxes and fees does not establish exceptions, should be determined in the same way. Consequently, when realizing property rights to non-residential premises, the tax base should be calculated on the basis of clause 3 of Art. 155 of the Tax Code of the Russian Federation, that is, in the form of the difference between the sale price and the acquisition price of property rights (see also decisions of the FAS Volga District dated December 23, 2010 N A55-6801/2010, FAS Moscow District dated August 19, 2010 N KG-A40/8856- 10). The letter of the Federal Tax Service of Russia dated June 27, 2014 N GD-4-3/12291@ states that the decisions of the Plenum and the Presidium of the Supreme Arbitration Court of the Russian Federation for tax authorities are established judicial practice, which tax authorities should be guided by when considering the feasibility of additional VAT assessments in the case under consideration . That's why when realizing property rights to non-residential premises VAT should be calculated in the manner established by clause 3 of Art. 155 Tax Code of the Russian Federation.

R.S. Kurbanov,

Head of Legal Department
company "Audit-new technologies"

Background

Since the introduction of Chapter 21 of the Tax Code of the Russian Federation, disputes regarding the imposition of value added tax on transactions with property rights have not subsided. The reason for this was the obvious shortcomings of legal technology, as well as the inconsistency of the legislator in the issue of taxation of transactions related to the transfer of property rights.

The first edition of Article 146 of the Tax Code of the Russian Federation did not include transactions on the transfer of property rights as objects of VAT taxation: the general provisions contained in paragraph 1 of this article on the inclusion of the operation of the sale of goods among the transactions subject to VAT could not be applied to property rights, since, according to Article 38 of the Tax Code of the Russian Federation, such rights did not apply to property, and, accordingly, to goods. Chapter 21 also did not contain special instructions on the inclusion of transactions with property rights in the subject of VAT taxation.

Without establishing the object of taxation, the legislator nevertheless considered it possible to include in the Tax Code of the Russian Federation rules on the specifics of determining the tax base when carrying out transactions related to the assignment of a claim. At the same time, Article 155 of the Code remained the only article of Chapter 21, from which some prerequisites for the taxation of assignment of claims followed.

Federal Law No. 57-FZ of May 29, 2002 introduced changes to Article 146 of the Tax Code of the Russian Federation, which included transactions on the transfer of property rights among the objects of taxation, and the effect of these changes was extended to legal relations that arose from January 1, 2002. However, the establishment of the object did not eliminate the uncertainty in the issue of taxation of transactions related to the turnover of liability rights. Thus, the issue of the so-called primary assignment of claim, when the creditor under the main agreement transfers his right of claim to a third party, remained unresolved.

The procedure for determining the tax base for transactions of assignment of claims was established by Article 155 of the Tax Code of the Russian Federation. In accordance with paragraph 1 of this article “in case of assignment of a claim arising from a contract for the sale of goods (work, services), transactions for the sale of which are subject to taxation, or transfer of the specified claim to another person on the basis of law, the tax base for transactions for the sale of these goods (work, services) is determined in the manner prescribed Article 154 of this Code".

An analysis of paragraph 1 of Article 155 of the Tax Code of the Russian Federation allows us to conclude that the tax base for transactions in the sale of goods (work, services) is determined by the contract from which the rights are assigned, and not by transactions of assignment of the right of claim.

Paragraph 2 of Article 155 of the Tax Code of the Russian Federation establishes the procedure for determining the tax base during the subsequent exercise of the right of claim by a new creditor, that is, this clause has nothing to do with the initial assignment of the right of claim.

Thus, Article 155 of the Tax Code of the Russian Federation determines the tax base only for a secondary assignment of the right of claim, that is, when a new creditor, to whom the right of claim has been transferred, cedes such right to the next creditor.

The general principles for determining the tax base for the sale of goods (work, services), established by Article 154 of the Tax Code of the Russian Federation, cannot apply to the implementation of property rights, since in accordance with this article the tax base for the sale of goods (work, services) is determined.

According to Article 17 of the Tax Code of the Russian Federation, a tax is considered established only if the taxpayers and elements of taxation are determined, namely:

Object of taxation;

Tax base;

Tax period;

Tax rate;

Tax calculation procedure;

Procedure and deadlines for tax payment.

The absence of any of the listed elements means that the tax cannot be considered established and the taxpayer has no obligation to pay it. Consequently, even after the amendment to Article 146 of the Tax Code of the Russian Federation, the initial assignment of a claim was not subject to VAT.

Taxation of transactions involving the transfer of monetary claims

The changes made to Chapter 21 of the Tax Code of the Russian Federation by Federal Law No. 119-FZ of July 22, 2005, affected, among others, the taxation of transactions on the transfer of property rights.

The legislator has finally eliminated the uncertainty in the application of tax deductions when acquiring property rights: from January 1, 2006, Articles 171 and 172 of the Tax Code of the Russian Federation fully apply to transactions with property rights.

Article 155 of the Code, which since January 1, 2006 is called “Features of determining the tax base when transferring property rights,” has also undergone significant changes. Paragraph 1 of the article was subject to the least amendments: the legislator only endowed the assigned right of claim with a qualifying feature, and now paragraph one relates exclusively to monetary claims. A monetary claim, in accordance with Article 11 of the Tax Code of the Russian Federation and Article 826 of the Civil Code of the Russian Federation, should be understood as the right of the creditor to receive funds from the debtor.

The necessity of the norm established by paragraph 1 of Article 155 of the Tax Code of the Russian Federation has always been in doubt, since it, in fact, duplicated the provisions of Articles 154 and 167 of the Code. Taking into account the transition to calculating VAT at the time of shipment, the existence of this rule only introduces uncertainty into tax relations, since by the time the taxpayer could use it (at the time of assignment of the right of claim), the value added tax on sales transactions, as usually already calculated and paid. In this regard, it is not clear what the legislator was guided by, not only not excluding this norm, but also introducing “cosmetic” amendments to it.

According to paragraph 2 of Article 155 of the Tax Code of the Russian Federation “the tax base upon assignment by a new creditor who has received a monetary claim arising from an agreement for the sale of goods (work, services), transactions for the sale of which are subject to taxation, is determined as the amount of excess of the income received by the new creditor upon the subsequent assignment of the claim or upon termination of the corresponding obligation, above the amount of expenses for the acquisition of the specified requirement.”

The legislator excluded from the text of the norm an obscure phrase about the sale of certain financial services related to the assignment of a claim. No other changes were made to paragraph two. However, the question remains open as to what is meant by “income received by the new creditor upon termination of the corresponding obligation.” The wording itself is clear: the assignee who has received the right of claim can receive income as a result of the termination of the obligation; income can be received as a result of the fulfillment of an obligation by the debtor or termination of the obligation in another acceptable way (offset, provision of compensation, etc.). But such income can be received only if, at the time of termination of the obligation, the assignee continued to remain a creditor under this obligation. Meanwhile, the hypothesis of the norm of paragraph 2 of Article 155 of the Tax Code of the Russian Federation stipulates the onset of the obligation to calculate the tax base only upon assignment of the claim, and this fits well into the concept of the tax base as a cost characteristic of the object of taxation, in this case, the transaction of transfer of property rights.

Thus, it is obvious that paragraph two of Article 155 of the Code needs additional adjustment to eliminate the internal contradiction and bring it into line with Article 146 of the Tax Code of the Russian Federation.

As stated above, paragraph 2 of Article 155 of the Tax Code of the Russian Federation establishes the procedure for determining the tax base when assigning a monetary claim arising from an agreement for the sale of goods (work, services), transactions for the sale of which are subject to taxation. The fourth paragraph of this article is devoted to cases of assignment of a monetary claim arising from other agreements. The tax base for such transactions is determined as the excess of the amount of income received upon subsequent assignment over the amount of expenses for acquiring the right of claim.

Clause 4 of Article 155 of the Tax Code of the Russian Federation, in contrast to clause 2 of the article, leads to the need to calculate the tax base upon assignment of any monetary claim, including those arising from an agreement, transactions under which are not subject to value added tax, as well as rights arising from non-contractual obligations (causing harm, unjust enrichment, etc.).

The provisions of paragraph 4 of Article 155 of the Tax Code of the Russian Federation will most likely cause disputes between taxpayers and tax authorities. In addition to incorrect wording (legislators indicated the need to calculate the tax base not upon transfer, but upon acquisition of the right of claim), from a literal reading of this paragraph it follows that the taxpayer who purchased the right of claim must pay VAT even in cases where the right of claim is not transferred to them: “When acquiring a monetary claim from third parties, the tax base is determined as the amount of excess of the amount of income received from the debtor and (or) upon subsequent assignment over the amount of expenses for the acquisition of the specified claim.”.

It is not clear whether such wording can be considered simply a lack of legal technique or a meaningful desire of the legislator to impose value added tax on any profit received by the taxpayer as a result of acquiring the right to claim. Returning to paragraph 2 of Article 155 of the Tax Code of the Russian Federation, it should be recognized that the legislator is quite purposefully trying to expand the object of taxation at the expense of the tax base.

According to Article 53 of the Tax Code of the Russian Federation, the tax base is a cost, physical or other characteristic of the object of taxation. This article expresses the essence of such an element of taxation as the tax base: the tax base is always associated with the object of taxation, and the absence of this object makes it impossible to calculate the base. Accordingly, if the assignee, without transferring the right of claim to third parties, receives income from the right of claim as a result of the fulfillment of an obligation by the debtor, then he does not have an object of VAT taxation and, as a consequence, the obligation to pay tax.

It is worth noting that both paragraph 2 and paragraph 4 of Article 155 of the Tax Code of the Russian Federation establish the procedure for determining the tax base only when transferring monetary claims, that is, rights to receive funds. At the same time, obligatory property rights are not limited to monetary ones: they include, among other things, the rights to demand the transfer of a thing, perform work, provide services, and each of such rights can also be assigned by the creditor. However, Article 155 of the Code does not contain any instructions on determining the tax base for the assignment of such claims (with the exception of the right to receive real estate).

Article 155 of the Tax Code of the Russian Federation still does not contain rules defining the procedure for determining the tax base for a primary assignment. However, if earlier taxpayers, in response to the claims of the tax authorities, could refer to the fact that the Tax Code of the Russian Federation does not contain rules allowing to determine the tax base for such transactions, now such a position is not so clear: in addition to Article 155 of the Tax Code of the Russian Federation, changes affecting the taxation of transactions on transfer of property rights were also included in other articles of Chapter 21, in particular in Article 153 of the Tax Code of the Russian Federation.

According to paragraph 2 of Article 153 of the Tax Code of the Russian Federation, when determining the tax base, proceeds from the sale of goods (work, services), transfer of property rights are determined based on all income of the taxpayer associated with settlements for payment for such goods (work, services), property rights received by him in cash and (or) in kind, including payment in securities.

It is possible that the Russian Ministry of Finance, relying on this norm, will come to the conclusion that it is necessary to calculate VAT on operations for the primary assignment, and the tax base will be defined as the entire proceeds from the transfer of the right of claim. Formally, such payment will not lead to double taxation, since the tax will be paid from different objects: the first time from the transaction of sale of goods (works, services), the second time from the transaction of transfer of property rights. But in fact, this will mean that taxpayers will be forced to pay tax twice on the same amounts.

In our opinion, such logic does not correspond to the provisions of Article 153 of the Tax Code of the Russian Federation.

In accordance with paragraph 1 of Article 53 of the Tax Code of the Russian Federation, not only the tax base must be established, but also the procedure for determining it. Paragraph 1 of Article 153 of the Code determines that the tax base for the transfer of property rights is determined taking into account the specifics established by Chapter 21 of the Code. The specifics of determining the tax base upon assignment of the right of claim are established by Article 155 of the Tax Code of the Russian Federation, and the norms of this article do not contain provisions determining the tax base upon the initial assignment. In turn, the provisions of paragraph 2 of Article 153 of the Tax Code of the Russian Federation cannot be considered as a procedure for determining the tax base when assigning the right of claim: the norms of this paragraph establish only the procedure for determining revenue in cases where the rules of Article 155 of the Code establish a mechanism for determining the tax base.

Taxation of transactions involving the transfer of non-monetary claims

According to paragraph 3 of Article 155 of the Tax Code of the Russian Federation, when transferring property rights by taxpayers (including participants in shared construction) to residential buildings or residential premises, shares in residential buildings or residential premises, garages or parking spaces, the tax base is determined as the difference between the cost at which property rights are transferred, taking into account taxes and expenses for the acquisition of these rights.

This provision could put an end to the issue of taxation of transactions on the transfer of rights arising from investment agreements, especially since the practice of applying the previous version of Chapter 21 of the Tax Code of the Russian Federation on this issue was not uniform: some courts indicated that the assignment of such rights is subject to value added tax , others - that tax is not calculated on the transfer of such property rights.

To some extent, the task of resolving this issue has been resolved by the legislator: from January 1, 2006, the transfer of rights to housing or garages is subject to VAT. However, having resolved one question, legislators posed another to taxpayers: is the transfer of property rights to non-residential premises (except for garages and parking spaces) subject to tax and in what order?

Formally, taxpayers performing such transactions do not have obligations to pay VAT, since Article 155 of the Tax Code of the Russian Federation does not contain a procedure for determining the tax base for such transactions. At the same time, it is doubtful that the legislator deliberately sought to exclude transactions for the transfer of property rights to non-residential premises from those subject to value added tax. Thus, even after the amendments are made, there remains room for disputes regarding the obligation to pay VAT on transactions of transfer of rights to non-residential premises.

The tax base for the transactions listed in paragraph 3 of Article 155 of the Tax Code of the Russian Federation is determined in the same manner as when calculating the tax base for the sale of property included in VAT, that is, as the difference between the cost at which property rights are transferred, taking into account tax and the costs of acquiring these rights. In this case, the amount of tax, taking into account which the tax base should be calculated, should be understood as the amount determined in accordance with paragraph 2 of Article 168 of the Tax Code of the Russian Federation based on the application of the tax rate to the price of the property right being sold.

Law No. 119-FZ also included in the article under consideration a clause regulating cases of assignment of another type of non-monetary claims. According to paragraph 5 of Article 155 of the Tax Code of the Russian Federation, when transferring lease rights and rights related to the right to conclude an agreement, the tax base is determined in the manner prescribed by Article 154 of the Code.

The provisions of paragraph 5 of Article 155 of the Tax Code of the Russian Federation apply to the so-called re-tenancy, when the tenant, with the consent of the lessor, transfers his rights and obligations to another person under a lease agreement.

Key words: tax dispute, transfer of property rights, payment of tax, VAT, interpretation, interpretation, tax dispute, tax payment, transfer of property rights, VAT

1.3 Foreign experience in cost management

economic indicator cost material

The influence of such factors as increased competition, changes in consumer behavior, constant rise in prices for basic resources - on the development of individual companies and entire sectors of the market economy - has undergone significant growth in recent decades, forcing private companies in developed countries to pay increasing attention to the development of new management concepts the internal business environment of the organization and the factors that shape it.

In the last two decades of the 20th century, leading foreign companies, with the assistance of the best economists in the world, developed a number of special cost management methods, most of which are of real interest to enterprises in countries with newly established market economies.

Now the focus of attention of leading companies is cost management within the framework of the lean production concept (lean, rational production), when the objects of reduction are system costs associated with the elimination of inventories, queues, redundant processing, etc. This is closely related to the process approach, allocation key customer groups that support end-to-end business processes. They “pull” only what is necessary from the enterprise’s resources, force them not to make unnecessary movements, and provide a unique opportunity to reduce costs and improve consumer quality at the same time.”

The most commonly used cost management methods are:

· Absorption costing

Direct costing

ABC system

Absorption costing

Absorption costing - costing with full distribution of costs - involves determining the cost of production with the distribution of all costs between sold products and remaining goods. Moreover, within the framework of this method, production or total cost can be calculated. Costing with full cost allocation involves the calculation of production costs based on direct (labor and material) and indirect overhead costs distributed into the cost of production. General business indirect expenses are either used to calculate the full cost, or are calculated as period costs, that is, they are not associated with physical units of finished products and are written off for the period (month, quarter, year). The total cost, therefore, consists of production cost plus general business (administrative, sales) expenses.

In this method, the main task is to correctly distribute overhead costs, since direct costs, according to the principles of classification of expenses in this method, we can easily identify and attribute to cost objects.

However, when determining direct costs, you may encounter a number of problems. For example, if many types of products are produced in one place using the same equipment and using the same materials, then in this case direct costs are distributed in proportion to the standards developed by the technological and planning department, and the standards developed once must be periodically compared with actual consumption and amendments made.

Absorption-costing allows you to create a more correct cost price and eliminates excessive losses and profits by including constant commissioning and commissioning in the cost of production, and not in period expenses.

The profit generation scheme for the absorption-costing system in general looks like this:

1. Revenue from sales.

2. Direct production costs:

· basic materials;

· basic salary.

3. General production expenses.

4. Gross profit.

VP=V-PZ-OPR, (1.1)

where VP is gross profit;

B - sales revenue;

PP - direct production costs;

OPR - general production expenses.

5. General business expenses (commercial and administrative).

6. Operating profit.

OP=VP-OHR, (1.2)

where OP is operating profit;

VP - gross profit;

OCR - general business expenses (commercial and administrative).

Absorption costing is relevant when an enterprise participates in price competition or the price of products is tied to full costs.

ABC (Activity-Based Costing) system.

Activity-based costing, or activity-based costing, plays an important role in the overall cost management system.

An effective way to reduce costs is to manage resource-consuming activities with the help of its drivers (reasons).

Cost management must ensure real cost reduction by reducing activities that do not create added value and improving activities that do create it, that is, increasing the value of the product.

The process of accounting for costs and calculating the cost of goods (works, services) using the Activity Based Costing system is presented in Figure 1.2 (Taken by the author from).

Figure 1.2 - The process of cost accounting and cost calculation using the ABC system

The main areas of application of ABC are:

· for a more precise calculation of the cost of cost objects and setting prices on this basis;

· for budgeting costs and monitoring compliance with budgets by type of activity, departments, sections, divisions, etc.;

· information base for benchmarking activities and reengineering of business processes based on its results;

· information base for making decisions about outsourcing (one of the types of reengineering), as well as other decisions.

Cost factors that influence a specific type of activity act here as a process meter.

The costing method for operations is usually analyzed according to such parameters as: inventory valuation, decision making, control.

The main feature of the ABC system is the allocation of costs attributable to the production of a unit of production, a batch of products, production overhead and general business expenses.

This method has a number of advantages:

1) it allows you to analyze overhead costs in detail, which is of great importance for management;

2) makes it possible to more accurately determine the costs of unused capacity for their periodic write-off to the profit and loss account; The unit cost of production estimated using this method is the best financial estimate of the resources consumed, since it takes into account complex alternative ways of determining the relationships between products and resource use.

3) allows you to indirectly assess the level of labor productivity - the deviation from the amount of resources consumed, and therefore from output or comparison of the actual level of cost distribution with the volume that could be possible with the actual provision of resources.

4) not only delivers new information on costs, but also generates a number of non-financial indicators, mainly measuring production volume and determining the production capacity of the enterprise.

5) costs for individual operations and the number of cost distribution objects represent individual performance measures; taken together, they can produce cost allocation ratios that can serve as measures of the performance of each activity under management control.

The introduction of the ABC system into the domestic practice of economic analysis of work would ensure reliable calculation of the cost of specific products, which would significantly increase the objectivity of assessing the profitability of products.

The following circumstances act as peculiar pitfalls:

· ABC costing requires a fairly heavy absorption of costs - spreading out a large number of fixed costs;

· additional resources of the financial department are needed; this system can be implemented in different ways: you can make every effort and very accurately describe all expense pools, or you can do it not very diligently;

· the result obtained will most likely not show to what level the price of the product can be reduced;

· the company can get an accurate result, but it happens that too much effort is spent on it;

· the use of ABC costing does not require concentration on individualized products that are produced for the client, but forces one to follow the principle: “Produce a mass product.” But will this be compatible with the company's marketing strategy?

Direct costing

In the conditions of developing market relations, the effective management of an organization's commercial activities increasingly depends on the level of its information support. All world experience testifies to the effectiveness of using the marginal method of accounting - the Direct Costing accounting system, which is based on the calculation of the reduced cost of production and the determination of marginal income.

Direct costing is relevant when making a decision to increase or decrease production volumes of a particular type of product. Marginal income must cover fixed costs, and this is the reason for a positive decision regarding production.

Modern direct costing has two options:

· simple direct costing, based on the use of data only on variable (operational) costs in accounting;

· developed direct costing (verible costing), in which the cost, along with variable costs, also includes direct fixed costs for the production and sale of products.

In general, the essence of the direct costing system is to divide costs into fixed and variable components depending on changes in production volume. Under these conditions, the cost of production is planned and taken into account only in terms of variable costs. The difference between revenue from product sales and variable costs is the contribution margin. Under this system, fixed costs are not included in the calculation of product costs and are written off directly to reduce the enterprise's profit.

With the direct costing system, a limited cost is determined, which includes only the sum of variable costs.

To evaluate and analyze the efficiency of the enterprise, this indicator is compared with revenue for the period and the marginal profit for the reporting period is determined (gross profit, coverage amount).

The net profit of an enterprise is the difference between the received value and the amount of fixed costs, which are not distributed between products, but are written off as a total amount to the financial results of the reporting period (one-stage accounting of coverage amounts).

According to this method, marginal profit is determined as follows:

where is sales revenue;

Variable production costs;

Variable management and sales costs.

Profit is determined as follows:

where are fixed costs.

An important advantage of the direct costing system is the possibility of a detailed and qualitative analysis of the relationship between production volume, cost, marginal income and profit.

In a market economy, direct costing provides information about the possibility of using dumping in competition - selling goods at deliberately reduced prices, which is associated with establishing a lower price limit.

This technique is used during periods of temporary reduction in demand for products to conquer sales markets.

In addition, direct costing makes it possible to more quickly control fixed costs, since standard costs or flexible estimates are often used in the process of cost control.

With the direct costing system, the full costs of manufacturing products are not determined. Therefore, this system does not meet one of the main goals of domestic accounting - the preparation of accurate calculations. However, it should be borne in mind that there is no costing system that would allow one to determine the cost per unit of production with one hundred percent accuracy.

An important feature of direct costing is that thanks to it it is possible to study the relationships and interdependencies between production volume, costs and profits.

Figure 1.3 - Graph of revenue and costs of the company: FC - fixed costs; VC -- variable costs; TC - gross costs; TR -- gross revenue (gross income); R -- threshold revenue; Q -- threshold sales volume

The graph shows the dependence of variable costs, fixed costs and revenue on production volume. This chart and its numerous modifications are used in analysis and management decision-making.

Anti-crisis management of an organization (using the example of Stroymash LLC)

State bankruptcy authorities in countries with developed market economies As the practice of most foreign countries (USA, Canada, UK, Australia, Sweden, the Netherlands, etc.) shows, one of the key...

Fundamentals of effective management of a modern organization

In our opinion, it is of great interest to consider the production management system using the example of countries such as CllIA and Japan...

Quality management system in the organization and ways to improve it

The problem of improving product quality is being addressed in all countries of the world, as evidenced by numerous publications in the press. Thanks to the theories and activities of a number of scientists, quality has attracted widespread attention...

The quality management system in the organization and ways to improve it (based on materials from OJSC "Gomel Automobile Repair Plant")

In conditions when the market requires an increase or at least not a decrease in the level of quality of manufactured products, a strategy of total quality management (TQM) was developed in Western countries...

Personnel management system and its improvement in a construction organization

The diverse experience accumulated in different countries of the world indicates that among all the resources of enterprises (material, labor, financial, etc.), management, i.e., the ability and ability to develop goals, is of the greatest importance...

Personnel management system at the enterprise JSC "GENTA"

Originated in the USA in the early 70s...

Product Quality Management Systems

Improving inventory management using the example of the Republican Unitary Enterprise "Gomel Plant of Special Tools and Technological Equipment"

The organization of replenishment of material resources can be carried out on the basis of several different systems...

Improving personnel management (using the example of the trade communal unitary enterprise "Department Store Belarus")

To address this issue, the Japanese experience should be separately considered as an example of special human resource management. Japan is a special country, unlike any other, and those countless techniques...

Improving product cost management using the example of GOLKHU "Rechitsa Experimental Forestry Enterprise"

cost of production reduction calculation Development of domestic production accounting and analysis...

Quality management within the framework of crisis management

Total quality control carried out by companies in the USA, Japan and Western Europe requires three mandatory conditions. 1. Quality as the main strategic goal of activity is recognized by the top management of companies...

Project management (using the example of a branch of OJSC Rostelecom)

To identify the dynamics, as well as the main trends in the development of project management, let us turn to a retrospective of the formation of a modern project management system. First of all, it should be noted...

Management of industrial inventories of an enterprise (using the example of the Shchelkovo Plant of Secondary Precious Metals)

Logistics technologies in the field of inventory management used by Western manufacturers are mainly aimed at minimizing inventories...

Enterprise risk management using the example of Polyolefin-TLK LLP

The Microsoft Solutions Framework (MSF) proposes to distribute project management risks among project team members. This increases the responsibility of employees and allows the proposed methodology to be applied to a wide range of different projects...

Management decisions and responsibility

The economic miracle of Japan, which means the transformation in a few decades of a third-rate country into a world power that really claims to be the first place in the world in the 21st century...