Nk rf place of service provision. Works (services), the place of sale of which is the location of the buyer. Features of the work of a branch of a foreign company

From the changes and additions introduced by the Federal Law of 19.07.2011 No. 245-FZ in Art. 148 of the Tax Code of the Russian Federation, we note, first of all, the inclusion of audit services in the list of services, the place of sale of which is determined by the place of business of the buyer (subparagraph 4, clause 1). This innovation concerns a few taxpayers, but it once again emphasizes the priority of literal reading the norms of the Tax Code of the Russian Federation. After all, if it were not for this priority, then it would have been possible to continue to consider that they are taxed in the same way as those already mentioned in subparagraph 1 without mentioning audit services in the Tax Code of the Russian Federation. 4 p. 1 art. 148 of the Tax Code of the Russian Federation to accounting and consulting services, since they are their aggregate (letter of the Ministry of Finance of Russia dated 08.04.2009 No. 03-07-08 / 85).

However, as we can see, this turned out to be insufficient and, relatively speaking, the point of view of the tax authorities prevailed, which, when literally reading the norms, did not find sub. 4 p. 1 art. 148 of the Tax Code of the Russian Federation in them it is audit services and even those who tried to prove it (alas, unsuccessfully) in court (letter of the Federal Tax Service of Russia for Moscow dated 06/18/2009 No. 16-15 / 61584 and the resolution of the FAS Moscow District dated 01/28/2011 No. KA- A40 / 17618-10).

Inclusion in sub. 4 p. 1 art. 148 of the Tax Code of the Russian Federation of transactions of transfer of emission reduction units (rights to emission reduction units) changes the procedure for their taxation. If earlier the place of sale of the service for the transfer of the relevant rights was considered the place of business of the seller (letters of the Ministry of Finance of Russia dated 18.03.2011 No. 03-07-08 / 75 and dated 08.10.2010 No. 03-07-11 / 395), now the place of sale will be the place carrying out the activities of the buyer. Of course, for Russian organizations, which more often than not may have an excess of unused limits, this procedure is more profitable and should stimulate their respective activity.

Inclusion in par. 1 sub. 4.1 clause 1 of Art. 148 of the Tax Code of the Russian Federation as performers of foreign persons who are not registered with tax authorities, means that Russian organizations purchasing from these performers the works (services) indicated in this subparagraph will be tax agents for VAT. Note also that, in contrast to the situation when these works (services) are performed by Russian organizations, in this case, the territory of the Russian Federation will be considered the place of their implementation only when both the point of departure and the point of destination are on the territory Russian Federation.

The list of purposes for the provision of aircraft, sea vessels or inland navigation vessels for use under a lease (temporary charter) agreement with a crew, in which the territory of the Russian Federation is not recognized as the place of business of the lessor (charterer), is supplemented by their use outside the territory of the Russian Federation for production (catch) aquatic biological resources and (or) research purposes (paragraph 2, clause 2, article 148 of the Tax Code of the Russian Federation). This will remove the reason for the disputes considered by the courts, including in 2011, and previously reached the Presidium of the Supreme Arbitration Court of the Russian Federation and even the Constitutional Court of the Russian Federation (resolution of the FAS North-West District of 05.24.2011 No. A42-4250 / 2010, resolution of the Presidium of the Supreme Arbitration Court RF dated 13.10.2009 No. 6508/09 and the definition of the Constitutional Court of the Russian Federation dated 07.12.2010 No. 1717-О-О).

New signatures 4.3 p. 1 and p. 2.1 of art. 148 of the Tax Code of the Russian Federation are classified as services for the organization of pipeline transportation of natural gas through the territory of Russia, provided by Russian organizations; performance of work, provision of services that are carried out for the purpose of geological exploration, exploration and production of hydrocarbons in subsoil areas located in whole or in part on the continental shelf and (or) in the exclusive economic zone of the Russian Federation.

Place of sale of goods

In 2011, the Ministry of Finance of Russia and the Federal Tax Service of Russia confirmed their discrepancy on the issue of whose territory is the place of sale of goods brought by a Russian organization to a warehouse abroad and sold from there to foreign organizations.

According to Art. 147 of the Tax Code of the Russian Federation, a product is considered sold on the territory of the Russian Federation if it:

• is located in Russia (in other territories under its jurisdiction) and at the same time is not shipped or transported;
• or at the time of the start of shipment or transportation is located in Russia (in other territories under its jurisdiction).

In a letter dated 12.08.2011 No. AS-4-3 / 13134, the Federal Tax Service of Russia concluded that since at the time of the transfer of ownership to the buyer, the goods are located on the territory of a foreign state, the seller has no reason to recognize Russia as the place of its sale. Therefore, when goods are shipped from warehouses located abroad, the subject of VAT does not arise, including taxable at a rate of 0%. The consequence of this is the impossibility, under no circumstances, to deduct the amount of VAT paid to suppliers when purchasing these goods (the letter does not say this, but it says in the letter of the Federal Tax Service of Russia dated 09.08.2006 No. SHT-6-03 / 786 @).

The position of the Ministry of Finance of Russia is more favorable for taxpayers. He believes that the sale of goods begins at the time of their transportation for this purpose abroad, and regardless of the existence at the time of export of an agreement on the further sale of these goods. And since at the moment of the start of transportation the goods are located on the territory of the Russian Federation, then it is the place of its sale. The goods are exported irrevocably, that is, in the export mode, which means, theoretically, upon provision of the relevant documents (one of which is a copy of the contract with a foreign person for the supply of goods), a 0% rate can be applied (letter dated 15.06.2011 No. 03-07-08 / 189). It follows from this that VAT on goods can be deducted.
There were no courts on this issue after 2008, and those that took place in 2006-2008 adhered to the same position as the Ministry of Finance of Russia.

The Ministry of Finance of Russia adheres to a similar opinion when a Russian organization sells goods from the territory of a foreign state, delivered to a foreign buyer through the territory of the Russian Federation in the customs transit mode: since at the time of the commencement of transportation, the goods are not in Russia, it is not the place of their sale (letter dated 12.10.2012 No. 03-07-13 / 01-49).

Before moving on to Art. 148 "Place of implementation of works (services)", we note that the line between Art. 147 and 148 of the Tax Code of the Russian Federation often passes through the "territory" of civil legislation.
A recent example is the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 17, 2012 No. 2296/12, in which, based solely on the analysis of the norms of the Civil Code of the Russian Federation, the tax authority's opinion that the subject of the transaction between a Russian and a foreign organization was the supply of goods for export, and not performance of development work under a work contract with the provision of a product sample developed as a result to the customer.

Place of implementation of works and services

The main thing that I would like to dwell on within the framework of this problem is the need to clearly understand that different points of Art. 148 of the Tax Code of the Russian Federation use different criteria to determine the place of sale. In general and conditionally, we can say that in Art. 148 of the Tax Code of the Russian Federation, the place of implementation of works (services) is determined in three ways:

1) for an object - depending on the location of the actual location of the property on which the impact is made, in relation to which work is performed (services are provided);

2) by the subject - depending on the place of registration, and in its absence - other signs of permanent legal location of the contractor (performer) or customer;

3) by activity - depending on the place of actual implementation of the activity that constitutes the content of the work (services).

Location of property

Subp. 1, 2 p. 1 and symmetrical sub. 1, 2, clause 1.1 determine the place of sale of works (services) depending on the location of the property in respect of which they are produced (rendered). The exclusivity and uniqueness for these sub-clauses of this criterion was reflected last year by the Ministry of Finance of Russia in a letter dated 26.10.2011 No. 03-07-08 / 296. It does not matter, for example, that the customer of work (services) performed by a Russian organization in relation to real estate located abroad is also a Russian organization - since the object of work (services) is not located on the territory of the Russian Federation, then the place of implementation of works (services ) RF is not. Therefore, they are not subject to VAT. The same applies to movable property (letter of the Ministry of Finance of Russia dated 02.11.2012 No. 03-07-08 / 310).

On the other hand, it would also not matter if the executor of work (services) performed (provided) in relation to property located on the territory of the Russian Federation were a foreign organization. The place of implementation of works (services) would still be considered the Russian Federation, which means that their customer would become a tax agent for VAT.

It should also be borne in mind that all moving objects (vehicles) referred to in paragraph 1 of Art. 130 of the Civil Code of the Russian Federation to immovable things, namely: aircraft and sea vessels subject to state registration, inland navigation vessels, space objects, for VAT purposes refer to movable things (subparagraph 2 of clause 1 of article 148 of the Tax Code of the Russian Federation). Moreover, this applies to similar objects that are not subject to such registration.

The meaning of immovable and movable property for the purposes of clauses 1 and 1.1 of Art. 148 of the Tax Code of the Russian Federation is that the composition of work (services) performed (provided) in relation to each type of property is different. Moreover, in both cases we are talking about works (services) directly related to the property, and their lists given in sub. 1, 2 p. 1 and sub. 1, 2, clause 1.1 of Art. 148 of the Tax Code of the Russian Federation, open.

With the literal understanding of the condition on the direct connection of works (services) with the object of property, the indicator of this connection should be considered only the fact of the presence or absence of a direct impact on the property in the course of the work (rendering of services). Therefore, such, for example, are unconditionally associated with movable property services, such as its assessment or architectural supervision of construction, just as certainly do not meet the conditions of sub. 1 p. 1 of Art. 148 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 22.06.2010 No. 03-07-08 / 183 and dated 21.10.2010 No. 03-07-08 / 298).

At the same time, the Ministry of Finance of Russia, as can be understood from his letter dated 20.07.2010 No. 03-07-08 / 207, believes that there should be one more sign - such an impact should be exerted directly by the organization itself. According to this letter, if a Russian organization, having concluded an agreement for the repair of real estate located outside the territory of the Russian Federation, carries out repairs by the forces of a subcontractor, the organization's services also do not fall under the terms of subpara. 1 p. 1 of Art. 148 of the Tax Code of the Russian Federation. The same applies to a Russian organization - a subcontractor: the place of implementation of its works (services) will be considered the territory of the Russian Federation, regardless of the location of the property (letter dated 21.08.2012 No. 03-07-08 / 255).

Note that the place of sale of services for the provision of property for rent is determined for immovable and movable property according to different criteria:

• real estate - at the location of the property (subparagraph 1 of clause 1 of article 148 of the Tax Code of the Russian Federation), that is, in the same way as all other works (services) related to real estate;
• movable - at the place of activity of the subjects of lease relations: the lessor - for ground vehicles, the lessee - for all other property (subparagraph 4 of paragraph 1 and subparagraph 4 of paragraph 1.1 of article 148 of the Tax Code of the Russian Federation), that is, differently from all others works (services) related to movable property.

Place of actual provision of work (services)

Subp. 3 p. 1 and symmetrical sub. 3 clause 1.1 of Art. 148 of the Tax Code of the Russian Federation determine the place of implementation of works (services) depending on the place of their actual provision. That is, again, the residence of the customer and the contractor does not matter. A problematic issue here is the question of attributing specific services to the spheres listed in this subparagraph - the sphere of culture, art, education (training), physical culture, tourism, recreation and sports.

It seems obvious that in accordance with paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, this issue should be resolved on the basis of legislation on the relevant areas of activity and applicable statistical classifiers1, as well as existing national standards.

For pairing. Fundamentals of the legislation of the Russian Federation on culture, approved by The Supreme Council of the Russian Federation 09.10.1992 No. 3612-1, Law of the Russian Federation dated 10.07.1992 No. 3266-1 "On Education", Federal Law dated 04.12.2007 No. 329-FZ "On Physical Culture and Sports in the Russian Federation", Federal Law dated 24.11 .1996 No. 132-FZ "On the basics of tourist activities in the Russian Federation", "OK 004-93. All-Russian classifier species economic activity, products and services ", approved. Resolution of the State Standard of Russia dated 06.08.1993 No. 17 (OKVED), “OK 002-93. All-Russian classifier of services to the population ", approved. Resolution of the State Standard of Russia dated June 28, 1993 No. 163 (OKUN).

However, disputes with tax authorities may arise not so much on the issue of whether certain services belong to the spheres specified in the Tax Code of the Russian Federation, but in relation to complex services, some of which are provided on the territory of Russia, and some outside it. Given that the cost of individual components of the general service is not allocated and the buyer pays for it as a single service.

An example similar to this situation in relation to tourist services is considered in the letter of the Federal Tax Service of Russia for Moscow dated 10.03.2009 No. 16-15 / 020627. At the same time, it is proposed to tax the services provided on the territory of the Russian Federation, and not to tax the services provided in accordance with Art. 148 of the Tax Code of the Russian Federation outside its borders. True, the letter does not say how to determine the cost of individual components of the general service.

In our opinion, in such situations, there is no need to distribute a single cost between different services. Because the norm of paragraph 3 of Art. 148 of the Tax Code of the Russian Federation, according to which, if an organization or an entrepreneur performs (renders) several types of work (services) and the implementation of some works (services) is auxiliary in relation to the implementation of other works (services), the place of implementation of auxiliary works (services) the place of sale of the main works (services) is recognized. That is, we determine which of the services paid in a single payment are the main ones, we look at them tax regime according to the Tax Code of the Russian Federation and all other services are taxed or not, respectively. For recent examples of the application of this logic in relation to training and technical support services, see the letters of the Ministry of Finance of Russia dated 05.25.2012 No. 03-07-15 / 52 and dated 03.08.2012 No. 03-07-08 / 233.

Buyer's place of business

Subp. 4 p. 1 and symmetrical sub. 4 clause 1.1 of Art. 148 of the Tax Code of the Russian Federation determine the place of sale of works (services) depending on the place of business of the buyer (as it is defined there). Sometimes it is said that this is an exception to the general procedure, according to which the place of implementation of works (services) is established at the place of permanent activity of the contractor. As you have seen, sub. 1-3 p. 1 and sub. 1-3 sub. 1.1 Art. 148 of the Tax Code of the Russian Federation is also an exception to this rule, therefore, it is general not in principle, not in general, but only for those situations when the place of implementation of works (services) depends on the subject of the transaction. At the same time, the main feature by which the place of activity of the participants in the transaction is determined is the place of their state registration.

Note that in relation to works (services), the place of sale of which is determined by the location of the seller or buyer, the norms of Art. 148 of the Tax Code of the Russian Federation are applied if the contractor and the customer carry out activities on the territory of different states. Therefore, when one Russian organization (executor) renders services to another Russian organization (customer) for the collection and processing of information on subsoil plots located on the territory of a foreign state, the place of their sale will be determined in a general manner without applying Art. 148 of the Tax Code of the Russian Federation and it will be the Russian Federation (letter of the Ministry of Finance of Russia dated 02.09.2011 No. 03-07-08 / 272).

And the place of sale of the services of a Russian organization to a foreign branch of another Russian organization registered, operating and tax-registered in a foreign state is not the Russian Federation - even if payment for the work (services) purchased by the branch was made by the head unit of the Russian organization (letters of the Ministry of Finance of Russia dated 10.10. 2012 03-07-08 / 284, dated 02.08.2012 No. 03-07-08 / 231, etc.).

Note. Strictly speaking, in the position of the Ministry of Finance of Russia regarding a Russian branch registered on the territory of a foreign state, there is some inconsistency with the norms of the Tax Code of the Russian Federation, since they speak of the place of registration of an organization, and according to clause 1 of Art. 11 of the Tax Code of the Russian Federation, Russian organizations are understood as legal entities, and only branches and representative offices of foreign legal entities can be referred to for tax purposes as organizations.

Similarly, when a Russian organization performs work (rendering services) for foreign organizations with a representative office in the Russian Federation, the place of sale is determined depending on who is the actual buyer of the services, in whose activities they are used (letter of the Ministry of Finance of Russia dated 11.07.2011 No. 03- 07-08 / 213):

• the foreign organization itself, registered on the territory of a foreign state (then the place of sale is not the Russian Federation);
• or a representative office of a foreign organization registered in Russia, in this case the place of sale is the Russian Federation.

Well, if, on this basis, the place of implementation of works (services) turns out to be Russia, then they should be applied general rules taxation of the relevant transaction, regardless of the fact that one of the parties to the transaction is a non-resident. Example - the absence of grounds for the fulfillment of the duty of a tax agent by a Russian organization when acquisition a foreign person who is not a VAT payer in the Russian Federation has the rights to use computer programs under a license agreement or R&D results financed by federal budget... Indeed, according to sub. 26 p. 2 art. 149 of the Tax Code of the Russian Federation, operations for such transmission are exempt from taxation (letters of the Ministry of Finance of Russia dated 11.07.2012 No. 03-07-08 / 177 and dated 23.11.2012 No. 03-07-08 / 328).

An interesting approach was proposed by the Ministry of Finance of Russia on the example of works (services) for organizing exhibitions provided by a Russian company to foreign organizations. Such works (services) in sub. 4 p. 1 art. 148 of the Tax Code of the Russian Federation no, therefore, by virtue of sub. 5 of the same paragraph, the place of their implementation, it would seem, should be the place of activity of the performer, that is, the Russian Federation. However, the Ministry of Finance considers it possible to focus on the purpose of the exhibition: if it is an advertisement for goods, then the organization of the exhibition belongs to those named in sub. 4 p. 1 art. 148 of the Tax Code of the Russian Federation to works (services) in the field of advertising and, accordingly, the place of their implementation is not the territory of the Russian Federation. And if an exhibition of cultural and art objects is held, then the work (services) for its organization are qualified according to sub. 3 p. 1 of Art. 148 of the Tax Code of the Russian Federation and the place of their implementation is the place (territory) of the actual holding of the exhibition (letter of the Ministry of Finance of Russia dated September 18, 2012 No. 03-07-08 / 269).

Considering that there are many more exhibitions of the first type, this approach is more likely to be more beneficial for taxpayers than for the budget. But whether the tax authorities will agree with it is a question, since it is not based on the literal content of the Code's norms. So the risk of a tax dispute, in my opinion, exists. Fresh judicial practice on this issue could not be found.

Place of activity of the contractor

Subp. 4.2 and sub. 5 p. 1 of Art. 148 of the Tax Code of the Russian Federation determine the place of sale at the place of activity of the contractor of works (services), without stipulating that it must be a Russian organization, that is, assuming that it can be a representative office of a foreign organization. In this case, sub. 4.2 concerns a fairly narrow range of services (works) - only directly related to the transportation and transportation of goods through the Russian territory, placed under the customs procedure of customs transit. But sub. 5 applies to all services not listed in other subparagraphs of paragraph 1 of Art. 148 of the Tax Code of the Russian Federation.

In contrast to this sub. 4.3 clause 1 of Art. 148 of the Tax Code of the Russian Federation connects the place of sale not only with the place of implementation of the contractor's activities, but also with his residence: only for a Russian organization, the Russian Federation will be the place of sale of services for the organization of pipeline transportation of natural gas across Russia.

At the same time, in relation to works (services), the place of sale of which is determined by the place of activity of the contractor or the buyer, the same service may be taxed differently by the main contractor and by his subcontractors if they are residents of different countries (see examples in letters Of the Ministry of Finance of Russia from 26.03.2012 No. 03-07-08 / 85, dated 16.04.2012 No. 03-07-08 / 106 and from 24.07.2012 No. 03-07-08 / 213).

Russian tax courier, May 2013

Olga Alshantseva, expert methodologist at Intercomp

Elena Rybnikova, internal auditor of Intercomp

Natalia Kanapukhina, Lead Accountant at Intercomp

Victoria Kuraksina, accountant at Intercomp

In practice, companies often encounter difficulties in determining the place of sale of goods, works or services. The need to pay VAT directly depends on this.

After all, the sale of goods, works or services is subject to VAT only if it takes place on the territory of the Russian Federation (clause 1 of article 146 of the Tax Code of the Russian Federation). Articles 147 and 148 of the Tax Code of the Russian Federation establish a special procedure for determining the place of sale of certain goods, works or services. At the same time, if there are no special norms, then the place of sale of works or services performed or rendered in the territory of the Russian Federation is this territory (subparagraph 5 of paragraph 1 of article 148 of the Tax Code of the Russian Federation). Such conclusions, in particular, are made by the Ministry of Finance of Russia in relation to services for the assessment of fixed assets located in the territory of the Russian Federation (letter dated June 22, 2010 No. 03-07-08 / 183).

Do I need to tax the cost of consulting services rendered to a foreign counterparty? Should VAT be charged on the sale of goods in transit through the territory of the Russian Federation? These and other controversial points, depending on the type of goods sold, work performed or services provided, are presented in the table.

1. For the purposes of this chapter, the place of sale of works (services) is the territory of the Russian Federation if:

1) works (services) are directly related to real estate (with the exception of aircraft, ships and inland navigation vessels, as well as space objects) located on the territory of the Russian Federation. Such works (services), in particular, include construction, installation, construction and installation, repair, restoration work, landscaping work, rental services;

2) works (services) are directly related to movable property, aircraft, sea vessels and inland navigation vessels located on the territory of the Russian Federation. Such works (services) include, in particular, installation, assembly, processing, processing, repair and maintenance;

3) services are actually provided on the territory of the Russian Federation in the field of culture, art, education (training), physical culture, tourism, recreation and sports;

4) the buyer of works (services) carries out activities on the territory of the Russian Federation.

The buyer's place of business is considered to be the territory of the Russian Federation if the buyer of the works (services) specified in this subparagraph is actually present on the territory of the Russian Federation on the basis of state registration of the organization or individual entrepreneur, and in its absence, or in relation to the branches and representative offices of the said organization - on the basis of the place specified in the constituent documents of the organization, the place of management of the organization, the location of its permanent executive body, the location of the permanent representation (if the works (services) were acquired through this permanent representation), place of residence of an individual, unless otherwise provided by paragraphs thirteen - seventeen of this subparagraph. The provision of this subclause applies when:

transfer, grant of patents, licenses, trademarks, copyrights or other similar rights, with the exception of the services specified in paragraph 1 of Article 174.2 of this Code;

the provision of services (performance of work) for the development of computer programs and databases (software and information products of computer technology), their adaptation and modification, with the exception of the services specified in paragraph 1 of Article 174.2 of this Code;

the provision of consulting, legal, accounting, auditing, engineering, advertising, marketing, information processing services, with the exception of the services specified in paragraph 1 of Article 174.2 of this Code, as well as during research and development work. Engineering services include engineering and consulting services for the preparation of the production process and the sale of products (works, services), preparation for the construction and operation of industrial, infrastructure, agricultural and other facilities, pre-design and design services (preparation of feasibility studies, design and development and other similar services). Information processing services include services for the collection and generalization, systematization of information arrays and provision of the results of processing this information at the disposal of the user;

provision of labor for employees (personnel) if employees work in the place of business of the buyer of services;

lease of movable property, except for the lease of aircraft engines and other aviation technical property, if, in accordance with the legislation of a foreign state, the territory of such a foreign state is recognized as the place of sale of such services, and leasing of ground vehicles;

the provision of the services of an agent who, on behalf of the main participant in the contract, attracts a person (organization or individual) for the provision of the services provided for by this subparagraph;

the ninth - tenth paragraphs are no longer valid;

the transfer of emission reduction units (rights to emission reduction units) obtained in the framework of projects aimed at reducing anthropogenic emissions or increasing the absorption of greenhouse gases by sinks in accordance with Article 6 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change;

the provision of the services specified in paragraph 1 of Article 174.2 of this Code.

In relation to an individual who is not an individual entrepreneur who purchases the services specified in paragraph 1 of Article 174.2 of this Code, the territory of the Russian Federation is recognized as the place of business of the buyer if at least one of the following conditions is met:

the buyer's place of residence is the Russian Federation;

the location of the bank in which the account is opened used by the buyer to pay for services, or the electronic money operator through which the buyer pays for services, is in the territory of the Russian Federation;

the buyer's network address used when purchasing the services is registered in the Russian Federation;

the international country code of the telephone number used to purchase or pay for services is assigned to the Russian Federation.

If, when providing to individuals who are not individual entrepreneurs, the services specified in paragraph 1 of Article 174.2 of this Code, the buyer's place of business is recognized as the territory of the Russian Federation and, at the same time, in accordance with the legislation of a foreign state, in which the place of rendering these services is determined at the place of implementation the activities of the buyer, the place of implementation of the activities of the specified buyer is the territory of such a foreign state, the seller has the right to determine the place of implementation of the activities of the buyer independently;

4.1) services for transportation and (or) transportation, as well as services (works) directly related to transportation and (or) transportation (except for services (works) directly related to transportation and (or) transportation of goods placed under the customs procedure customs transit during the carriage of goods from the place of arrival on the territory of the Russian Federation to the place of departure from the territory of the Russian Federation, and the services specified in subparagraph 4.3 of this paragraph) are provided (performed) by Russian organizations or individual entrepreneurs in the event that the point of departure and (or) the destination is located on the territory of the Russian Federation, or by foreign persons who are not registered with the tax authorities as taxpayers, if the points of departure and destination are located on the territory of the Russian Federation (with the exception of services for the carriage of passengers and baggage provided by foreign persons not through the permanent establishment of this and but a stranger).

The place of sale of services is also recognized as the territory of the Russian Federation, if vehicles under a charter agreement involving transportation (transportation) on these vehicles are provided by Russian organizations and individual entrepreneurs and the point of departure and (or) point of destination are located in the territory of the Russian Federation. Wherein vehicles aircraft, sea and inland navigation vessels used for the carriage of goods and (or) passengers by water (sea, river), air transport are recognized.

The place of sale of services for the transportation of natural gas by pipeline is also recognized as the territory of the Russian Federation in cases stipulated by international treaties of the Russian Federation;

4.2) services (work) directly related to the transportation and transportation of goods placed under the customs procedure of customs transit (except for the services specified in subparagraph 4.3 of this paragraph) when transporting goods from the place of arrival in the territory of the Russian Federation to the place of departure from the territory of the Russian Federation are (performed) by organizations or individual entrepreneurs, whose place of activity is recognized as the territory of the Russian Federation;

4.3) services for the organization of pipeline transportation of natural gas through the territory of the Russian Federation are provided by Russian organizations;

4.4) services for the carriage of goods by aircraft are provided by Russian air carriers - organizations or individual entrepreneurs, and the point of departure and point of destination are outside the territory of the Russian Federation in the event that during transportation on the territory of the Russian Federation the aircraft operated by these carriers and the place of arrival of goods land on the territory of the Russian Federation coincides with the place of departure of goods from the territory of the Russian Federation;

5) the activities of an organization or an individual entrepreneur that perform work (provide services) are carried out on the territory of the Russian Federation (in terms of performing types of work (rendering types of services) not provided for in subparagraphs 1 - 4.1, 4.4 of this paragraph).

1.1. Unless otherwise provided by clause 2.1 of this article, for the purposes of this chapter, the territory of the Russian Federation is not recognized as the place of sale of works (services) if:

1) works (services) are directly related to real estate (with the exception of aircraft, ships and inland navigation vessels, as well as space objects) located outside the territory of the Russian Federation. Such works (services), in particular, include construction, installation, construction and installation, repair, restoration work, landscaping work, rental services;

2) works (services) are directly related to movable property located outside the territory of the Russian Federation, as well as to aircraft, sea and inland navigation vessels located outside the territory of the Russian Federation. Such works (services) include, in particular, installation, assembly, processing, processing, repair, maintenance;

3) services are actually rendered outside the territory of the Russian Federation in the field of culture, art, education (training), physical culture, tourism, recreation and sports;

4) the buyer of works (services) does not operate on the territory of the Russian Federation. The provision of this subparagraph shall apply when performing those types of work and services that are listed in subparagraph 4 of paragraph 1 of this article;

5) transportation services (transportation) and services (work) directly related to transportation, transportation, chartering are not listed in subparagraphs 4.1 - 4.3 of paragraph 1 of this article.

2. The place of implementation of the activities of an organization or an individual entrepreneur performing types of work (providing types of services) not provided for in subparagraphs 1 - 4.1 of paragraph 1 of this article is the territory of the Russian Federation in the event of the actual presence of this organization or an individual entrepreneur on the territory of the Russian Federation on the basis of the state registration, and in its absence or in relation to branches and representative offices of the said organization - on the basis of the place specified in the constituent documents of the organization, the place of management of the organization, the location of the permanent executive body of the organization, the location of the permanent mission in the Russian Federation (if the work is completed (services provided) provided through this permanent establishment) or the place of residence of an individual entrepreneur.

For the purposes of this chapter, the territory of the Russian Federation is not recognized as the place of business of an organization or an individual entrepreneur that provide for use aircraft, sea vessels or inland navigation vessels under a lease agreement (temporary chartering) with a crew, if the said vessels are used outside the territory of the Russian Federation. Federation for the extraction (catch) of aquatic biological resources and (or) research purposes or transportation between points located outside the territory of the Russian Federation.

2.1. For the purposes of this chapter, the place of sale of works (services) is the territory of the Russian Federation, if the performance of works, the provision of services are carried out for the purpose of geological study, exploration and production of hydrocarbons in subsoil areas located in whole or in part on the continental shelf and (or) in the exclusive economic zone of the Russian Federation. The provisions of this clause apply to the following types of work (services):

3. In the event that an organization or an individual entrepreneur performs (renders) several types of work (services) and the implementation of some works (services) is auxiliary in relation to the implementation of other works (services), the place of sale of auxiliary works (services) is the place of sale main works (services).

4. Documents confirming the place of performance of work (provision of services), unless otherwise provided by paragraph 5 of this article, are:

1) a contract concluded with foreign or Russian persons;

2) documents confirming the fact of performance of work (provision of services).

5. Documents confirming the place of rendering to individuals who are not individual entrepreneurs, the services specified in paragraph 1 of Article 174.2 of this Code, are the registers of operations indicating information on the fulfillment of the conditions provided for in paragraphs fourteen to seventeen of subparagraph 4 of paragraph 1 of this article, based on which the territory of the Russian Federation is recognized as the place of the buyer's activities, as well as the cost of these services.

Commentary on Art. 148 Tax Code

In Art. 148 of the Tax Code of the Russian Federation lists in detail the conditions under which the place of sale

works (services) the territory of the Russian Federation is recognized.

Works and services related to real estate

In accordance with paragraphs. 1 p. 1 of Art. 148 of the Tax Code of the Russian Federation, works or services directly related to real estate (with the exception of aircraft, ships and inland navigation vessels, as well as space objects) are considered performed in Russia if such objects are located on the territory of the Russian Federation. Such works (services), in particular, include construction, installation, construction and installation, repair, restoration work, landscaping and rental services.

For example, the place of implementation construction workscarried out by Russian organizations on the territory of a foreign state, the territory of the Russian Federation is not recognized regardless of who (Russian or foreign persons) owns the ownership of immovable property. Accordingly, such works are not subject to VAT in the Russian Federation.

Works or services related to movable property

Subparagraph 2 of clause 1 of Art. 148 of the Tax Code of the Russian Federation establishes that works (services) directly related to movable property, aircraft, sea vessels and inland navigation vessels located on the territory of the Russian Federation are considered to be implemented in Russia. This regulation applies to works and services such as installation, assembly, processing, processing, repair and maintenance. At the same time, the courts indicate that based on the literal meaning of paragraphs. 2 p. 1 art. 148 of the Tax Code of the Russian Federation, the list of works (services) given in it is not exhaustive

(Resolution of the Federal Antimonopoly Service of the North Caucasian District of April 16, 2009 in case N A32-15742 / 2008-59 / 159).

Services in the field of culture, art, education (training), physical culture, tourism, recreation and sports

According to paragraphs. 3 p. 1 art. 148 of the Tax Code of the Russian Federation, services in the field of culture, art, education (training), physical culture, tourism, recreation and sports are considered sold on the territory of the Russian Federation if they are actually provided in Russia.

The application of this norm causes certain difficulties for travel agencies.

Based on the provisions of Art. 1 of the Federal Law of November 24, 1996 N 132-FZ "On the Basics of Tourist Activities in the Russian Federation", the implementation of travel vouchers can be considered as the implementation of a range of services.

The place of sale of tourism services provided in the Russian Federation is the territory of the Russian Federation. If such services are provided outside the Russian Federation, the territory of the Russian Federation is not recognized as the place of their sale.

As explained by the Ministry of Finance of Russia, services provided by a Russian tour operator carrying out tour operator activities in outbound tourism on the territory of the Russian Federation and included in the cost of a tourist voucher are subject to VAT tax on the basis of clause 3 of Art. 164 of the Tax Code of the Russian Federation at a rate of 18%.

As for the services included in the price of a tourist voucher, which are actually provided outside the territory of the Russian Federation, such services are not subject to taxation in the Russian Federation (Letter of the Ministry of Finance of Russia dated April 3, 2013 N 03-07-08 / 10896).

Based on the provisions of paragraphs. 3 p. 1 and p. 3 clause 1.1 of Art. 148 of the Tax Code of the Russian Federation, the place of sale of services provided in the field of culture and art is determined depending on the place of actual provision of services. Therefore, the place of implementation of services for the display of concert programs provided by foreign concert organizations in the Russian Federation is the territory of the Russian Federation. Services for showing concert programs provided by organizations operating in the field of culture and art, including foreign concert organizations, on the territory of the Russian Federation are exempt from value added tax. In this regard, Russian organizations that purchase such services from foreign concert organizations are not recognized as tax agents for VAT (Letter of the Ministry of Finance of Russia dated August 26, 2014 N 03-07-08 / 42522).

When the place of sale of works or services is determined by the location of the buyer

In pp. 4 p. 1 of Art. 148 of the Tax Code of the Russian Federation lists cases when the place of sale of works or services is considered to be the territory of the Russian Federation, provided that the location of the buyer is Russia.

The buyer's place of business is considered to be the territory of the Russian Federation in the event of the actual presence of the buyer of the works (services) specified in cl. 4 p. 1 of Art. 148 of the Tax Code of the Russian Federation, on the territory of the Russian Federation on the basis of state registration of an organization or an individual entrepreneur, and in its absence or in relation to branches and representative offices of the said organization - on the basis of the place specified in the constituent documents of the organization, the place of management of the organization, the location of its permanent executive body, location of the permanent establishment (if works (services) were purchased through this permanent establishment), place of residence of an individual. The position of nos. 4 p. 1 of Art. 148 of the Tax Code of the Russian Federation applies:

1) when transferring, granting patents, licenses, trademarks, copyrights or other similar rights;

2) in the provision of services (performance of work) for the development of computer programs and databases (software and information products of computer technology), their adaptation and modification.

According to paragraph 1 of Art. 161 of the Tax Code of the Russian Federation when selling goods (works, services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is defined as the amount of income from the sale of these goods (works, services), including tax.

The tax base is determined separately when performing each transaction for the sale of goods (works, services) on the territory of the Russian Federation, taking into account this chapter.

In accordance with paragraph 4 of Art. 164 of the Tax Code of the Russian Federation, when withholding VAT by tax agents cooperating with foreign suppliers and contractors, the tax rate is defined as the percentage of the tax rate of 10 or 18% to the tax base, taken as 100 and increased by the corresponding amount of the tax rate;

3) in the provision of consulting, legal, accounting, auditing, engineering, advertising, marketing services, information processing services, as well as in the conduct of research and development work.

Engineering services include engineering and consulting services for the preparation of the production process and the sale of products (works, services), preparation for the construction and operation of industrial, infrastructure, agricultural and other facilities, pre-design and design services (preparation of feasibility studies, design and development and other similar services).

Information processing services include services for the collection and generalization, systematization of information arrays and providing the user with the results of processing this information.

Marketing is an entrepreneurial activity that drives the promotion of goods and services from producer to consumer.

In addition, marketing refers to the study of the current sales market.

There is no definition of “marketing services” in the legislation on taxes and fees.

According to paragraph 1 of Art. 11 of the Tax Code of the Russian Federation, the institutions, concepts and terms of civil, family and other branches of the legislation of the Russian Federation used in the Tax Code of the Russian Federation are applied in the same meaning in which they are used in these branches of legislation, unless otherwise provided by the Tax Code of the Russian Federation.

In the All-Russian Classifier of Economic Activities OK 029-2001 (NACE Rev. 1) (hereinafter - OKVED), put into effect by the Resolution of the State Standard of Russia dated November 6, 2001 N 454-st from January 1, 2003, the term "marketing services" is absent.

However, the above Classifier contains the concept of "market research", which is assigned to class 74 "Provision of other types of services", group 74.13, including subgroup 74.13.1 "Market research", in particular, the study of market potential, product acceptability, awareness of and the buying habits of consumers in order to promote the product and develop new types of products, including statistical analysis results.

Market research may involve the implementation of the following procedures:

determining the size and nature of the market; calculation of the real and potential market capacity; analysis of factors affecting market development;

taking into account the specific features of the analysis of the commodity and regional market; determining the degree of market saturation, etc .;

segmentation of the market and determination of types of consumers according to the main characteristics: age, gender, income, profession, social status, place of residence, objective need for the proposed product, etc .; studies of the capacity of the trade and distribution (commodity-conducting) network serving this market; availability of retail and wholesale trade enterprises, availability of trade warehouse and

auxiliary premises, etc .; analysis of external factors of market development.

Thus, according to the findings of the Federal Tax Service of Russia in order to apply paragraphs. 4 p. 1 of Art. 148 of the Tax Code of the Russian Federation, marketing services performed under a service agreement may include services named in subgroup 74.13.1 of group 74.13 of class 74 "Provision of other types of services" OKVED (Letter of the Federal Tax Service of Russia dated February 20, 2006 No. MM- 6-03 / 183 @ "On the procedure for applying subparagraph 4 of paragraph 1 of Article 148 of the Code").

Since January 1, 2015, the concept of “market research” has been assigned to code 73.20.1 “Market research” included in group 73.20 “Market research and public opinion research” (All-Russian Classifier of Economic Activities (OK 029-2014 (NACE Ed. 2) (approved by the order of Rosstandart dated January 31, 2014 N 14-st). This group includes:

a) research of the market and internal actual and potential capabilities of the production or intermediary activities of the company in order to analyze the structure and patterns of market dynamics and substantiate measures for more effective adaptation of production, technologies and structure of the company, as well as the products or services presented by the company to the market to demand and requirements end consumer;

b) studying public opinion on political, economic and social issues,

including statistical analysis of the information received;

4) when providing personnel, if the personnel works in the buyer's place of business (paragraph 6 of clause 4 of paragraph 1 of article 148 of the Tax Code of the Russian Federation).

Note that in accordance with Federal Law No. 116-FZ of May 5, 2014, from January 1, 2016 No.

par. 6 pp. 4 p. 1 of Art. 148 of the Tax Code of the Russian Federation will be set forth in a new edition: "provision of labor for employees (personnel) in the event that employees work in the place of business of the buyer of services;";

5) when leasing movable property, except for land vehicles;

6) when providing the services of an agent who, on behalf of the main participant in the contract, attracts a person (organization or individual) to provide the services provided for by this subparagraph;

7) when transferring emission reduction units (rights to emission reduction units) received as part of the implementation of projects aimed at reducing anthropogenic emissions or increasing the absorption of greenhouse gases by sinks in accordance with Art. 6 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change.

Transportation and (or) transportation services

In accordance with paragraphs. 4.1 clause 1 of Art. 148 of the Tax Code of the Russian Federation, the place of sale of transportation (transportation) services rendered by Russian organizations is the territory of the Russian Federation in cases where transportation and (or) transportation services, as well as services (work) directly related to transportation and (or) transportation (with the exception of services (works) directly related to the transportation and (or) transportation of goods placed under the customs procedure of customs transit when transporting goods from the place of arrival in the territory of the Russian Federation to the place of departure from the territory of the Russian Federation, and the services specified in clauses 4.3 p. 1 article 148 of the Tax Code of the Russian Federation), are (performed) by Russian organizations or individual entrepreneurs in the event that the point of departure and (or) the point of destination are located on the territory of the Russian Federation, or by foreign persons who are not registered with tax authorities as taxpayers, in the event that the points of departure and destination are located on the territory of Ross of the Russian Federation (with the exception of services for the carriage of passengers and baggage provided by foreign persons not through the permanent establishment of this foreign person).

The place of sale of services is also recognized as the territory of the Russian Federation if vehicles under a charter agreement involving transportation (transportation) by these vehicles are provided by Russian organizations and individual entrepreneurs and the point of departure or destination is located in the territory of the Russian Federation. In this case, vehicles are aircraft, sea and inland vessels used for the carriage of goods or passengers by water (sea, river), air transport.

In pp. 4.2 clause 1 of Art. 148 of the Tax Code of the Russian Federation states that services (work) directly related to the transportation and transportation of goods placed under the customs regime of international customs transit (with the exception of the services specified in clause 4.3 of clause 1 of Article 148 of the Tax Code of the Russian Federation), when transporting goods from places of arrival on the territory of the Russian Federation to the place of departure from the territory of the Russian Federation are considered realized in Russia if they are provided (performed) by organizations or individual entrepreneurs whose place of activity is recognized as the territory of the Russian Federation.

Please note that on the basis of paragraphs. 4.1 and 4.2 paragraph 1 of Art. 148 of the Tax Code of the Russian Federation, the place of sale of transportation (transportation) services rendered by Russian organizations is the territory of the Russian Federation in cases where the transportation of goods is carried out between the points of departure and (or) destination located on the territory of the Russian Federation, or if the transported goods are placed under the customs procedure of customs transit ... In other cases, in accordance with paragraphs. 5 clause 1.1 of Art. 148 of the Tax Code of the Russian Federation, the territory of the Russian Federation is not recognized as the place of sale of services for the transportation (transportation) of goods.

With regard to pp. 4.3 clause 1 of Art. 148 of the Tax Code of the Russian Federation, then, according to it, the place of sale of goods (works, services) is the Russian Federation, if services for the organization of pipeline transportation of natural gas across the territory of the Russian Federation are provided by Russian organizations.

Please note that from January 1, 2015, paragraph 1 of Art. 148 of the Tax Code of the Russian Federation is supplemented by a new subparagraph - p. 4.4 clause 1 of Art. 148 of the Tax Code of the Russian Federation (as amended by the Federal Law of November 29, 2014 N 382-FZ "On Amending Parts One and Two of the Tax Code of the Russian Federation"). According to the provisions of paragraphs. 4.4 clause 1 of Art. 148 of the Tax Code of the Russian Federation, the place of sale of works (services) is recognized as the territory of the Russian Federation if services for the carriage of goods by aircraft are provided by Russian air carriers - organizations or individual entrepreneurs and the point of departure and destination are outside the territory of the Russian Federation if, during transportation on the territory of the Russian Federation, the aircraft operated by the indicated carriers lands and the place of arrival of goods on the territory of the Russian Federation coincides with the place of departure of goods from the territory of the Russian Federation.

In what cases the territory of the Russian Federation is not recognized as the place of sale of works or services

Clause 1.1 of Art. 148 of the Tax Code of the Russian Federation gives cases when the territory of the Russian Federation is not recognized as the place of sale of works (services). Let's list them.

1. Works (services) are directly related to real estate (with the exception of aircraft, ships and inland navigation vessels, as well as space objects) located outside the territory of the Russian Federation. Such works (services), in particular, include construction, installation, construction and installation, repair, restoration work, landscaping, rental services.

2. Works (services) are associated directly with movable property located outside the territory of the Russian Federation, as well as with aircraft, sea and inland navigation vessels located outside the territory of the Russian Federation. Such works (services) include, in particular, installation, assembly, processing, processing, repair, maintenance.

3. Services are actually rendered outside the territory of the Russian Federation in the field of culture, art, education (training), physical culture, tourism, recreation and sports.

4. The buyer of works (services) does not operate on the territory of the Russian Federation. This subparagraph is applied when performing those types of work and services that are listed in paragraphs. 4 p. 1 of Art. 148 of the Tax Code of the Russian Federation.

5. Services for transportation (transportation) and services (work) directly related to transportation, transportation, chartering are not listed in paragraphs. 4.1, 4.3 paragraph 1 of Art. 148 of the Tax Code of the Russian Federation.

In pp. 5 p. 1 of Art. 148 of the Tax Code of the Russian Federation states that works or services not mentioned in paragraphs. 1 - 4.1,

4.3 clause 1 of Art. 148 of the Tax Code of the Russian Federation (and from January 1, if these works (services) are not listed in clauses 1 - 4.1, 4.3, as well as clauses 4.4 of clause 1 of article 148 of the Tax Code of the Russian Federation) are considered implemented on the territory of the Russian Federation if the or an individual entrepreneur who perform these works (provide these services) is carried out in Russia.

In this regard, it is interesting to consider the problem of taxation of leasing operations when a foreign company acts as a lessor. The Federal Tax Service of Russia, in Letter No. MM-6-03 / 404 @ dated May 17, 2005, reports the following in this regard.

It was established that operations for the sale of goods (works, services) on the territory of the Russian Federation, including the sale of pledged items and the transfer of goods (results of work performed, the provision of services) under an agreement on the granting of compensation or novation, as well as the transfer of property rights are recognized as objects of taxation for VAT. In cases where the seller and the buyer of works (services) are located in different states, one of which is the Russian Federation, the mechanism for determining the place of implementation of works (services) is established by Art. 148 of the Tax Code of the Russian Federation.

According to paragraphs. 4 p. 1 of Art. 148 of the Tax Code of the Russian Federation, the place of the buyer's activities, the provision of the services listed in this subparagraph is the territory of the Russian Federation, if it is actually present in Russia. The provision of this sub-clause also applies when leasing movable property, with the exception of land vehicles. Thus, in the event that a foreign organization (lessor), which is not registered as a taxpayer with the tax authorities of the Russian Federation, transfers movable property (for example, an electric forklift, a stacker), which is not related to motor vehicles, into temporary possession and use by leasing agreement of a Russian organization (lessee), the place of sale of services under the lease agreement is the territory of the Russian Federation. In this case, the Russian organization has the duties of a tax agent.

In the event that land vehicles are leased, the procedure for determining the place of implementation of works (services), provided for in paragraphs. 5 p. 1 of Art. 148 of the Tax Code of the Russian Federation.

In such a situation, the territory of the Russian Federation will no longer be the place for rendering leasing services. This means that the Russian lessee will not have the obligation to withhold VAT from the amounts of lease payments that he transfers to the foreign lessor.

And freight forwarding services rendered by Russian organizations when organizing the transportation of goods across the territory of the Russian Federation are subject to value added tax taxation in accordance with the generally established procedure on the basis of clause 3 of Art. 164 of the Tax Code of the Russian Federation at a rate of 18%. Freight forwarding services provided by Russian organizations when organizing the transport of goods outside the territory of the Russian Federation are not recognized as an object of taxation as value added tax in accordance with paragraphs. 5 clause 1.1 of Art. 148 of the Tax Code of the Russian Federation.

In accordance with clause 2.1 of Art. 148 of the Tax Code of the Russian Federation, the place of sale of works (services) is the territory of the Russian Federation, if the performance of work, the provision of services is carried out for the purpose of geological study, exploration and production of hydrocarbons in subsoil areas located in whole or in part on the continental shelf and (or) in the exclusive economic zone Russian Federation. The provisions of this paragraph apply to the following types of work (services):

1) work (services) performed (provided) within the boundaries of the continental shelf of the Russian Federation and (or) in the exclusive economic zone of the Russian Federation or within the boundaries of the Russian part (Russian sector) of the bottom of the Caspian Sea, for regional geological study, geological study and exploration of marine deposits of hydrocarbon raw materials (including services for geological study of subsoil and reproduction of the mineral resource base, services for geophysical studies of wells, exploration and seismic exploration, exploration drilling, services for monitoring the state of subsoil, services for aerial photography), creation, readiness for use (operation), maintenance, repair, reconstruction, modernization, technical re-equipment, conservation, dismantling, liquidation (other capital work) of artificial islands, installations and structures, as well as other property located on the continental shelf Of the Russian Federation and (or) in the exclusive economic zone of the Russian Federation or in the Russian part (Russian sector) of the bottom of the Caspian Sea, which is used (created for use) in activities related to the production of hydrocarbons at an offshore hydrocarbon field;

2) works (services) for the extraction of hydrocarbons, including the construction (drilling) of wells;

3) works (services) for the preparation (primary processing) of hydrocarbon raw materials;

4) works (services) for the transportation and (or) transportation of hydrocarbon raw materials from points of departure located on the continental shelf of the Russian Federation and (or) in the exclusive economic zone of the Russian Federation, as well as works (services) directly related to such transportation and ( or) transportation performed (provided) by Russian and (or) foreign organizations.

If an organization or an individual entrepreneur performs (renders) several types of work (services) and the implementation of some works (services) is auxiliary in relation to the implementation of other works (services), the place of implementation of auxiliary works (services) is the place of implementation of the main works ( services).

It is worth remembering that the documents confirming the place of performance of work (provision of services) are (clause 4 of article 148 of the Tax Code of the Russian Federation):

1) a contract concluded with foreign or Russian persons; 2) documents confirming the fact of performance of work (provision of services).

1. For the purposes of this chapter, the place of sale of works (services) is the territory of the Russian Federation if:

1) works (services) are directly related to real estate (with the exception of aircraft, ships and inland navigation vessels, as well as space objects) located on the territory of the Russian Federation. Such works (services), in particular, include construction, installation, construction and installation, repair, restoration work, landscaping work, rental services;

2) works (services) are directly related to movable property, aircraft, sea vessels and inland navigation vessels located on the territory of the Russian Federation. Such works (services) include, in particular, installation, assembly, processing, processing, repair and maintenance;

3) services are actually provided on the territory of the Russian Federation in the field of culture, art, education (training), physical culture, tourism, recreation and sports;

4) the buyer of works (services) carries out activities on the territory of the Russian Federation.

The place of the buyer's activities is considered to be the territory of the Russian Federation in the event of the actual presence of the buyer of the works (services) specified in this subparagraph on the territory of the Russian Federation on the basis of state registration of an organization or an individual entrepreneur, and in its absence or in relation to branches and representative offices of the said organization - on on the basis of the place specified in the constituent documents of the organization, the place of management of the organization, the location of its permanent executive body, the location of the permanent establishment (if the works (services) were acquired through this permanent establishment), the place of residence of an individual, unless otherwise provided by paragraphs thirteen - seventeenth of this subparagraph. The provision of this subclause applies when:

transfer, grant of patents, licenses, trademarks, copyrights or other similar rights, except for the services specified in paragraph 1 of this Code;

the provision of services (performance of work) for the development of computer programs and databases (software and information products of computer technology), their adaptation and modification, with the exception of the services specified in paragraph 1 of this Code;

providing consulting, legal, accounting, auditing, engineering, advertising, marketing services, information processing services, except for the services specified in paragraph 1 of this Code, as well as during research and development work. Engineering services include engineering and consulting services for the preparation of the production process and the sale of products (works, services), preparation for the construction and operation of industrial, infrastructure, agricultural and other facilities, pre-design and design services (preparation of feasibility studies, design and development and other similar services). Information processing services include services for the collection and generalization, systematization of information arrays and provision of the results of processing this information at the disposal of the user;

provision of labor for employees (personnel) if employees work in the place of business of the buyer of services;

lease of movable property, except for the lease of aircraft engines and other aviation technical property, if, in accordance with the legislation of a foreign state, the territory of such a foreign state is recognized as the place of sale of such services, and leasing of ground vehicles;

the provision of the services of an agent who, on behalf of the main participant in the contract, attracts a person (organization or individual) for the provision of the services provided for by this subparagraph;

paragraphs nine through ten are no longer valid. - Federal Law of 22.07.2005 N 119-FZ;

the transfer of emission reduction units (rights to emission reduction units) obtained in the framework of projects aimed at reducing anthropogenic emissions or increasing the absorption of greenhouse gases by sinks in accordance with Article 6 of the Kyoto Protocol to the United Nations Framework Convention on Climate Change;

provision of services specified in paragraph 1 of this Code.

In relation to an individual who is not an individual entrepreneur who purchases the services specified in clause 1 of this Code, the buyer's place of business is the territory of the Russian Federation if at least one of the following conditions is met:

the buyer's place of residence is the Russian Federation;

the location of the bank in which the account is opened used by the buyer to pay for services, or the electronic money operator through which the buyer pays for services, is in the territory of the Russian Federation;

the buyer's network address used when purchasing the services is registered in the Russian Federation;

the international country code of the telephone number used to purchase or pay for services is assigned to the Russian Federation.

If, when providing to individuals who are not individual entrepreneurs, the services specified in paragraph 1 of this Code, the buyer's place of business is recognized as the territory of the Russian Federation and, at the same time, in accordance with the legislation of a foreign state, in which the place of provision of these services is determined at the place of business of the buyer , the place of implementation of the activities of the specified buyer is the territory of such a foreign state, the seller has the right to determine the place of implementation of the activities of the buyer independently;

4.1) services for transportation and (or) transportation, as well as services (works) directly related to transportation and (or) transportation (except for services (works) directly related to transportation and (or) transportation of goods placed under the customs procedure customs transit during the carriage of goods from the place of arrival on the territory of the Russian Federation to the place of departure from the territory of the Russian Federation, and the services specified in subparagraph 4.3 of this paragraph) are provided (performed) by Russian organizations or individual entrepreneurs in the event that the point of departure and (or) the destination is located on the territory of the Russian Federation, or by foreign persons who are not registered with the tax authorities as taxpayers, if the points of departure and destination are located on the territory of the Russian Federation (with the exception of services for the carriage of passengers and baggage provided by foreign persons not through the permanent establishment of this and but a stranger).

The place of sale of services is also recognized as the territory of the Russian Federation, if vehicles under a charter agreement involving transportation (transportation) on these vehicles are provided by Russian organizations and individual entrepreneurs and the point of departure and (or) point of destination are located in the territory of the Russian Federation. In this case, vehicles are air, sea and inland vessels used for the carriage of goods and (or) passengers by water (sea, river), air transport.

The place of sale of services for the transportation of natural gas by pipeline is also recognized as the territory of the Russian Federation in cases stipulated by international treaties of the Russian Federation;

4.2) services (work) directly related to the transportation and transportation of goods placed under the customs procedure of customs transit (except for the services specified in subparagraph 4.3 of this paragraph) when transporting goods from the place of arrival in the territory of the Russian Federation to the place of departure from the territory of the Russian Federation are (performed) by organizations or individual entrepreneurs, whose place of activity is recognized as the territory of the Russian Federation;

4.3) services for the organization of pipeline transportation of natural gas through the territory of the Russian Federation are provided by Russian organizations;

4.4) services for the carriage of goods by aircraft are provided by Russian air carriers - organizations or individual entrepreneurs, and the point of departure and point of destination are outside the territory of the Russian Federation if, during transportation on the territory of the Russian Federation, the aircraft operated by these carriers and the place of arrival of goods land on the territory of the Russian Federation coincides with the place of departure of goods from the territory of the Russian Federation;

5) the activities of an organization or an individual entrepreneur that perform work (provide services) are carried out on the territory of the Russian Federation (in terms of performing types of work (rendering types of services) not provided for in subparagraphs 1 - 4.1, 4.4 of this paragraph).

1.1. Unless otherwise provided by paragraph of this article, for the purposes of this chapter, the territory of the Russian Federation is not recognized as the place of sale of works (services) if:

1) works (services) are directly related to real estate (with the exception of aircraft, ships and inland navigation vessels, as well as space objects) located outside the territory of the Russian Federation. Such works (services), in particular, include construction, installation, construction and installation, repair, restoration work, landscaping work, rental services;

2) works (services) are directly related to movable property located outside the territory of the Russian Federation, as well as to aircraft, sea and inland navigation vessels located outside the territory of the Russian Federation. Such works (services) include, in particular, installation, assembly, processing, processing, repair, maintenance;

3) services are actually rendered outside the territory of the Russian Federation in the field of culture, art, education (training), physical culture, tourism, recreation and sports;

4) the buyer of works (services) does not operate on the territory of the Russian Federation. The provision of this subparagraph is applied when performing those types of work and services that are listed in subparagraph 4 of paragraph of this article;

5) services for transportation (transportation) and services (work) directly related to transportation, transportation, chartering are not listed in subparagraphs 4.1 - 4.3 of paragraphs of this article.

2. The place of implementation of the activities of an organization or an individual entrepreneur performing types of work (providing types of services) not provided for in subparagraphs 1 - 4.1 of paragraph of this article is the territory of the Russian Federation in the event of the actual presence of this organization or an individual entrepreneur on the territory of the Russian Federation on the basis of state registration , and in its absence or in relation to the branches and representative offices of the said organization - on the basis of the place specified in the constituent documents of the organization, the place of management of the organization, the location of the permanent executive body of the organization, the location of the permanent representative office in the Russian Federation (if the work is completed (services are provided ) provided through this permanent establishment) or the place of residence of an individual entrepreneur.

For the purposes of this chapter, the territory of the Russian Federation is not recognized as the place of business of an organization or an individual entrepreneur that provide for use aircraft, sea vessels or inland navigation vessels under a lease agreement (temporary chartering) with a crew, if the said vessels are used outside the territory of the Russian Federation. Federation for the extraction (catch) of aquatic biological resources and (or) research purposes or transportation between points located outside the territory of the Russian Federation.

2.1. For the purposes of this chapter, the place of sale of works (services) is the territory of the Russian Federation, if the performance of works, the provision of services are carried out for the purpose of geological study, exploration and production of hydrocarbons in subsoil areas located in whole or in part on the continental shelf and (or) in the exclusive economic zone of the Russian Federation. The provisions of this clause apply to the following types of work (services):

1) work (services) performed (provided) within the boundaries of the continental shelf of the Russian Federation and (or) in the exclusive economic zone of the Russian Federation or within the boundaries of the Russian part (Russian sector) of the bottom of the Caspian Sea, for regional geological study, geological study and exploration of marine deposits of hydrocarbon raw materials (including services for geological study of subsoil and reproduction of the mineral resource base, services for geophysical studies of wells, exploration and seismic exploration, exploration drilling, services for monitoring the state of subsoil, services for aerial photography), creation, readiness for use (operation), maintenance, repair, reconstruction, modernization, technical re-equipment, conservation, dismantling, liquidation (other capital work) of artificial islands, installations and structures, as well as other property located on the continental shelf Of the Russian Federation and (or) in the exclusive economic zone of the Russian Federation or in the Russian part (Russian sector) of the bottom of the Caspian Sea, which is used (created for use) in activities related to the production of hydrocarbons at an offshore hydrocarbon field;

2) works (services) for the extraction of hydrocarbons, including the construction (drilling) of wells;

3) works (services) for the preparation (primary processing) of hydrocarbon raw materials;

4) works (services) for the transportation and (or) transportation of hydrocarbon raw materials from points of departure located on the continental shelf of the Russian Federation and (or) in the exclusive economic zone of the Russian Federation, as well as works (services) directly related to such transportation and ( or) transportation performed (provided) by Russian and (or) foreign organizations.

3. In the event that an organization or an individual entrepreneur performs (renders) several types of work (services) and the implementation of some works (services) is auxiliary in relation to the implementation of other works (services), the place of sale of auxiliary works (services) is the place of sale main works (services).

4. Documents confirming the place of performance of work (provision of services), unless otherwise provided by paragraph of this article, are:

1) a contract concluded with foreign or Russian persons;

2) documents confirming the fact of performance of work (provision of services).

5. The documents confirming the place of rendering the services specified in clause 1 of this Code are the registers of operations indicating information on the fulfillment of the conditions provided for in paragraphs two and fourteen - seventeen of subparagraph 4 of clause of this article, on the basis of which the territory of the Russian Federation is recognized as the place of the buyer's activities , as well as the cost of these services.

The procedure for attributing tax amounts to the costs of production and sale of goods (works, services)

For the purposes of this clause, as well as clause 4.1 of this article, transactions that are subject to taxation also include operations for the sale of works (services), the place of sale of which, in accordance with Article 148 of the Tax Code of the Russian Federation, is not recognized as the territory of the Russian Federation (with the exception of transactions provided for in Article 149 Tax Code of the Russian Federation).

When working with foreign partners, the first question that needs to be resolved by an accountant is what legislation to follow when taxing income and expenses under a contract concluded with a foreign partner. Recall that the norms of international agreements take precedence over the norms of domestic tax legislation (Article 7 of the Tax Code of the Russian Federation). However, as a rule, such agreements regulate the issues of levying property and not indirect taxes (see Decree of the Government of the Russian Federation of 24.02.2010 N 84), therefore, when calculating VAT, you can safely appeal to the norms Of the Tax Code.

When does a Russian organization act as a tax agent?

For companies cooperating with foreign partners, Ch. 21 of the Tax Code of the Russian Federation provides for two cases when they have to play the role of a tax agent:

- when purchasing goods (works, services) from a foreign person who is not registered with the tax authorities (clause 1 of article 161 of the Tax Code of the Russian Federation);

- when participating in settlements as an intermediary selling goods (works, services) on the territory of the Russian Federation, property rights of foreign persons who are not registered with the tax authorities as taxpayers (clause 5 of article 161 of the Tax Code of the Russian Federation).

The question arises: how to find out that a foreign partner is not registered as a taxpayer? Very simple. Foreigners register at the location of the permanent establishment, which is assigned their own TIN, checkpoint. If the money goes to the account of this representative office, then the Russian organization does not need to act as an agent for a foreign company, the latter itself will be a taxpayer in the person of a branch (subdivision) registered with the tax authorities. If the money goes to the account of a non-resident who does not have such a representative office, it can be argued that this is a sign of cooperation with a foreigner who is not registered with the tax authorities. This means that a Russian firm should be ready to fulfill the duties of a tax agent.

Purchase of services from a foreign partner

When purchasing works, services from a foreign partner, a Russian organization as a tax agent must withhold tax from income paid to a foreign person and transfer it to the budget. After that, the tax agent gets the right to deduct the VAT withheld from the income of the foreigner (provided that the work, services are used in taxable activities).

The agent needs to keep in mind that in this case the tax is paid to the budget simultaneously with the amount transferred to the foreign partner. The bank will not accept a payment order for transferring funds to a partner without an order to pay withholding tax (paragraphs 2, 3, clause 4 of article 174 of the Tax Code of the Russian Federation). Due to the fact that settlements with a foreign partner are made in foreign currency, and the obligation to pay tax is fulfilled in the national currency (clause 5 of article 45 of the Tax Code of the Russian Federation), in order to transfer VAT to the budget, a tax agent - a Russian organization needs to decide on the ruble exchange rate in relation to foreign currency at which the tax base is recalculated (in our case is the amount of the contract). The financial department believes that in accordance with paragraph 3 of Art. 153 of the Tax Code of the Russian Federation, the tax base is recalculated into rubles at the rate of the Central Bank of the Russian Federation as of the date of actual expenditures (Letter of 03.07.2007 N 03-07-08 / 170).

Example 1. A Russian organization purchases from a foreign partner that is not registered with the tax authorities of the Russian Federation, services related to the adjustment of equipment and provided on the territory of the Russian Federation. The cost of the work is estimated at 3540 euros. The equipment, like the work itself, is intended for conducting VAT-taxable activities. For the sake of clarity, let's assume that, according to the contract, settlements are made upon the delivery of services. The euro exchange rate at the date of services was 38.8534 rubles. per euro, on the date of calculation - 39.0532 rubles. for the euro.

Under the terms of the contract, it is envisaged to withhold VAT from income transferred to a foreign partner. The amount of VAT subject to withholding is € 540 (€ 3,540 x 18/118).

The following entries will be made in the accounting records of a Russian organization:

<*> We remind you that expenses in the form of negative exchange rate differences from revaluation of claims (liabilities) are recognized non-operating expenses (Clause 5, Clause 1, Art. 265 of the Tax Code of the Russian Federation), therefore, the difference arising in accounting can be taken into account when calculating income tax.

<**> Ultimately, a debit balance (21,089 rubles) is formed on account 68 from three entries, which just shows that the tax amount has been reduced by the tax agent by the amount of VAT paid for the foreign partner.

<***> The Russian organization has the right to deduction in the tax period in which the tax was paid to the budget (Letter of the Ministry of Finance of Russia dated July 15, 2009 N 03-07-08 / 151, Resolution of the FAS SKO dated December 21, 2009 N A32-21695 / 2008-46 / 378-2009-34 / 283), although tax authorities transfer the deduction to the next taxable period (Letters of the Federal Tax Service of Russia dated 07.09.2009 N 3-1-10 / 712 @, dated 14.09.2009 N 3-1-11 / 730).

Purchasing services through a Russian intermediary

The situation when services are purchased from foreign partners through the customer's intermediaries is not common, but occurs. In such cases, the duties of the tax agent to pay VAT are assigned to the intermediary acting on his own behalf and at the expense of the consignor (foreign company).

Suppose a buyer (consignor), purchasing maintenance services from a foreign equipment manufacturer, does not work with it directly, but through its intermediary (commission agent) - a Russian company.
In this case, in order to withhold and transfer the amount of tax to the budget for a foreign partner, the intermediary - tax agent determines the tax base by the calculation method as the product of the cost of purchased services and the tax rate equal to 18/118 (if the contract provides for withholding tax from non-resident income). In turn, the buyer who purchases services (works) in this way has the right to deduct VAT paid to the budget by the intermediary, provided that the tax agent not only calculated the tax correctly, but also did not forget to draw up and present an invoice to the buyer. invoice in its own name, marked "for a foreign person".

The intermediary registers an invoice issued for a foreign partner in the sales book (this is the basis for calculating and transferring tax to the budget) without corresponding reflection in the purchase book. Tax deduction is presented by the consignor (the final buyer of services) if he uses these services to carry out transactions recognized as an object of VAT taxation, and on the basis of documents confirming the payment of tax amounts withheld by the tax agent to the budget, and the transfer of these tax amounts by the consignor to the commission agent as part of funds for the execution of the commission agreement.

This conclusion follows from the slightly confusing, according to the author, Letter of the Ministry of Finance of Russia dated January 18, 2008 N 03-07-08 / 13 and Letter of the Federal Tax Service of Russia dated February 4, 2010 N SHS-22-3 / 85 @, which is devoted to issues of billing. invoices for the sale (purchase) of goods (works, services) with the participation of intermediaries.

Example 2. Let's change the conditions of the previous example. Suppose that an organization purchases equipment setup services through an intermediary. His remuneration is 10% of the amount of income transferred to the foreign partner after tax deduction.

The following entries will be made in the accounting of the intermediary (commission agent):

<*> For the sake of simplicity, it is assumed that the services of the intermediary are recognized at the time of settlement between the parties.

In the accounting of the buyer (consignor) the following entries will be made:

We hope that the practical recommendations given in the article will help Russian organizations understand the nuances of calculations with the VAT budget, as well as convey them to foreign partners.

www.pnalog.ru

The rationale for this position is given below in the materials of the Glavbuh System

When selling goods (works, services), VAT must be paid only if the sale took place on the territory of Russia. When selling goods (works, services) outside Russia (on the territory of a foreign state), do not pay tax. This follows from RїRѕRґRїSѓRЅRєS‚R ° 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation. *

The rules for determining the place of sale are given in Articles 147 and 148 of the Tax Code of the Russian Federation. The legislation establishes a different procedure for determining the place of sale of goods and the place of sale of works (services).

Implementation of works or services

In стР° тье 148 of the Tax Code of the Russian Federation there are four criteria for determining the place of implementation of works (services):

• at the place of activity of the contractor of works (services);
• by the location of the property with which the works (services) are associated;
• at the place of business of the buyer of works (services);
• at the place of actual provision of services.

When deciding whether the works (services) have been implemented on the territory of Russia (and, therefore, whether it is necessary to pay VAT for this operation), one of these criteria must be applied.

As a general rule, works (services) are recognized as implemented in Russia if they were performed (provided):

• russian organization;
• an entrepreneur registered or residing in Russia;
• a representative office of a foreign organization located in Russia.

This follows from RїRѕRґRїSѓRЅRєS‚R ° 5 of clause 1 of Article 148 of the Tax Code of the Russian Federation.

There are exceptions to this rule for certain types of work (services).

For works (services) directly related to movable and immovable property (for example, installation, repair, etc.), the place of sale is determined by the location of the property (subparagraphs 1 and 2 of paragraph 1 of article 148 of the Tax Code of the Russian Federation). That is, such works (services) are considered implemented in Russia if the property is located in Russia.

For works (services) listed in RїRѕRґRїSѓRЅRєS‚Rµ 4 paragraph 1 of Article 148 of the Tax Code of the Russian Federation, the place of sale is determined by the location of the buyer. In this case, the location is the address at which the organization is registered in Russia.

When an organization is not registered in Russia, the place of sale will be considered the address:
- spelled out in the constituent documents;
- on which the management of the organization or its executive body is located;
- in which the permanent establishment is located, if the works (services) were purchased through it.

That is, such works (services) are considered implemented in Russia if the buyer operates in Russia. For example, the buyer is a Russian organization or a representative office of a foreign organization located in Russia.

For services in the field of culture, art, education (training), physical culture, tourism, recreation and sports, the place of sale is determined by the place of actual provision of services (РїРѕРґРї.V 3 RїV 1 СЃС, В 148 РќРљВ Р Р¤). That is, such works (services) are considered implemented in Russia if they were actually performed (provided) in Russia.

The specifics of determining the place of implementation of works and services under agreements between Russian organizations and organizations of the countries participating in the RўRѕR¶RµRЅRЅRsRiRs SЃRSSЋR · R ° are provided for by the protocol ratified by the Law of May 19, 2010 No. 94-FZ. The procedure for determining the place of implementation of works and services is presented in more detail in the table. *

Olga Tsibizova,

head of the Indirect Tax Division of the Department

tax and customs tariff policy of the Ministry of Finance of Russia

2. Reference article:Rules for determining the place of implementation of certain works (services) for calculating VAT

3. RESOLUTION OF FAS MO dated 06.11.2008 No. А40-15616 / 2008

“In accordance with subparagraph 4 of clause 1 of Article 148 of the Tax Code of the Russian Federation, for the purposes of this chapter, the place of sale of works (services) is the territory of the Russian Federation, if the buyer of the works (services) carries out activities in the territory of the Russian Federation.

The place of the buyer's activities is the territory of the Russian Federation in the event of the actual presence of the buyer of the works (services) specified in this subparagraph on the territory of the Russian Federation on the basis of state registration of the organization or individual entrepreneur, and in its absence - on the basis of the place specified in the constituent documents of the organization , the place of management of the organization, the location of its permanent executive body, the location of the permanent establishment (if the work (services) are provided through this permanent establishment), the place of residence of an individual. *

This provision applies in the provision of consulting, legal, accounting, engineering, advertising, marketing, information processing services, as well as in the conduct of research and development work.

At the same time, services for processing information in accordance with the Tax Code of the Russian Federation include services for collecting and summarizing, systematizing information arrays and providing the user with the results of processing this information.

When considering the case, the courts on the basis of an assessment of the documents presented in the case materials (charter, information letter about registration in the Statistical Register of Rosstat No. 28-902-47 / 02-95318 dated 05.12.2007, notification of the amount of insurance premiums for mandatory social insurance from industrial accidents and occupational diseases from 30.03.2005) and in accordance with the Federal Law from 23.08.1996. No. 127-FZ "On Science and State Scientific and Technical Policy" reasonably came to the conclusion that the main activity of the applicant is research and development in the field of natural and technical sciences.

Under the contract dated 01.11.2004. the applicant provided the services of OMNIKEA CLINICLE RESERVE Inc., registered in the United States and having no activity in the Russian Federation.

According to this agreement, the applicant undertakes to perform work on conducting clinical trials of medicines, drugs, medical and hospital equipment; information technology support and implementation support; collection, processing and classification of information obtained as a result of the provision of services. *

According to Chapter 38 of the Civil Code of the Russian Federation, for the fulfillment of these obligations, the applicant entered into contracts with third parties to conduct clinical trials by them.

The fact of performing research works with an exclusive scientific focus is confirmed by the permission received by the applicant to conduct each clinical study from the Ministry of Health. social development RF and permission to conduct clinical trials from 19.07.2006. No. 261, submitted to the applicant by third parties with reporting documentation containing information on the research results. *

IN in this case All the information received by the applicant about the investigations carried out and their results were transmitted to them by OMNIKEA KLINIKL RESERCH Inc., which is confirmed by the documents presented in the case file.

In such circumstances, the courts reasonably concluded that the applicant provided services for the collection, systematization, generalization and processing of information on the results of clinical trials received by him from third parties, which was transmitted to the customer in the form of a report. *

Since the buyer of services is not located on the territory of the Russian Federation, the services provided by the applicant are not recognized as sold on the territory of the Russian Federation and are not subject to value added tax. * "

www.glavbukh.ru

Features of the work of a branch of a foreign company

• The branch has the right to engage in commercial activities.
• The procedure for obtaining work permits has not changed.
• Branch is not legal entity, hence:

In accordance with the provisions of clause 1 of Article 149 of the Tax Code of the Russian Federation, the provision of premises by a lessor to foreign organizations accredited in the Russian Federation by a lessor in the territory of the Russian Federation is not subject to taxation (exempt from taxation).

VAT and Customs Union

According to paragraph 5 of Art. 2 Minutes of 11.12.2009

"On the procedure for levying indirect taxes and the mechanism of control over their payment when exporting and importing goods in the Customs Union"

(hereinafter referred to as the Protocol on Goods) the amounts of indirect taxes payable on goods imported into the territory of one CU member state from the territory of another CU member state are calculated by the taxpayer according to tax rates, established by the legislation of the CU member state into whose territory the goods are imported.

Provision of services to non-residents outside the Russian Federation vat

The normative definition of concepts such as "foreign trade", export and import of services is contained in Federal law "ABOUT government regulation foreign trade activity ", adopted The State Duma July 7, 1995.

Foreign trade activity in accordance with part 2 of Article 2 of the Law is considered

"Entrepreneurial activity in the field of international exchange of goods, works, services, information, results of intellectual activity, including exclusive rights to them (intellectual property)"

Good accounting courses

The procedure for the taxation of transactions for the purchase and sale of services in the case when the counterparty is a non-resident has its own characteristics. In the consultation, read how to arrange such operations, as well as determine the place of delivery of services and the VAT taxation base.

The procedure for imposing VAT on transactions for the purchase and sale of services in the field of foreign economic activity depends on the place of supply of these services.

The main (but not the only) object of VAT taxation, according to cl.

1 tbsp. 146 of the Tax Code of the Russian Federation, is the sale of goods, works, services on the territory of the Russian Federation.

Accordingly, if a taxpayer sells services outside of Russia, such sales cannot be recognized as an object of VAT taxation. This means that the seller does not have to charge 18% VAT on the amount of the cost of the service and present it to the buyer for payment.

Taxes for telecommuting with a non-resident

We want to hire a specialist who retains Russian citizenship, but permanently resides abroad.

We consider 2 options: an agreement on remote work or a civil law agreement for work or services.

If necessary, a specialist can register in Russia as an individual entrepreneur. Tax residents are individualsactually staying in the Russian Federation for at least 183 calendar days within 12 consecutive months.

If Russia is recognized as such, then VAT must be paid on the proceeds received.

Question: For the purpose of promoting domestically produced goods, a Russian organization participates in exhibitions held abroad. Foreign companies - organizers of exhibitions, providing advertising services to our organization, do not take into account the value added tax in the cost of such services and issued invoices.

Is it legal in this case for our organization as a tax agent to apply a VAT rate of 20% to the cost of services without VAT? At the expense of what funds is VAT paid in this case and is it subject to reimbursement from the budget in accordance with cl.

Russian VAT outside the Russian Federation: does it happen?

QUALIFICATIONS "FINANCIAL DIRECTOR", "FINANCIAL MANAGER", "FINANCIAL ANALYST" - ACCORDING TO INTERNATIONAL PROF STANDARDS. PRESENTATION from EICPA. Real savings and business protection: over 60 legal schemes. All changes in 2018 in tax planning and control (May 15-16, 2018.

credit h All seminars Card index Does it happen that when goods (works, services) are sold outside the territory of the Russian Federation, VAT is charged according to Russian tax rules?

It turns out that it happens, and the author would like to acquaint the reader with certain exceptions that are not obvious at first glance.

vigor24.ru

In this article we will cover the basic questions tax accounting under service contracts. We are talking about contracts, one of the parties (customer) of which is a foreign company, and the other is a Russian company.

To correctly calculate taxes for this operation, it is necessary to determine the place of sale of these services. If Russia is recognized as such, then VAT must be paid on the proceeds received. Moreover, the amount of input tax on values \u200b\u200bthat are expended in the provision of such services is deducted in the usual manner. If the services are sold outside of Russia, then you do not need to pay VAT. Accordingly, the amount of input tax is included in expenses and is not deductible. The place of sale of services is determined according to the rules established by Article 148 of the Tax Code. So, it is considered that they are provided in Russia if:

1. The services are directly related to real estate (with the exception of aircraft, ships and inland navigation vessels, as well as space objects), which is located on the territory of the Russian Federation. These are, for example, construction, assembly, construction and assembly, repair, restoration work, landscaping, rental services. Let's say a company provides services to a foreign company for the reconstruction of an office building in Orenburg. Since these works are related to real estate located in Russia, the place of their implementation is Russia. Consequently, the provision of services is subject to VAT;

2. The services are related to movable property, aircraft, sea vessels and inland navigation vessels located on the territory of the Russian Federation. These are, for example, work related to installation, assembly, processing, processing, repair and maintenance. For example, the company provides computer repair services. The company's repair shop is located in Smolensk. Since these services are related to movable property located on the territory of Russia, the place of their sale is Russia;

3. Services are actually rendered on the territory of Russia in the field of culture, art, education (training), physical culture, tourism, recreation and sports. For example, a Russian company provides training services for foreign specialists. The training takes place in Russia. Consequently, the place where these services are sold is Russia. And if so, their implementation is subject to VAT;

4. The buyer of services operates in the territory of the Russian Federation. This rule applies:

• to transfer, grant patents, licenses, trademarks, copyright or other similar rights;
• for services for the development of programs and databases for computers, including work on their adaptation and modification;
• for consulting, legal, accounting, engineering, advertising, marketing services, information processing services, as well as R&D;
• for services for the selection of personnel who will later work in the place of the buyer's business;
• for the services of renting out movable property, except for cars and other land vehicles;
• for the services of an agent who engages a contractor to provide the services listed above.

For example, a Russian firm provides consulting services. The organization has consulted a foreign company that is not registered in Russia and has no representative office. Since the buyer operates outside Russia, Russia is not the place of sale. Therefore, the implementation of VAT is not taxed.

Transportation services are separated into a separate group (subparagraphs 4.1, 4.2 of article 148 of the Tax Code of the Russian Federation). Since January 1, 2006, Russia is recognized as the place of sale of such services if the point of departure or destination is located on its territory. Note that under Article 164 of the Code, the provision of some transport services subject to VAT at a rate of 0 percent. These are services:

• escorting, transportation, loading, reloading of exported and imported goods;
• for the transportation of goods placed under the customs transit regime;
• for the carriage of passengers and baggage, provided that the point of destination or departure is located outside of Russia.

Let's say a Russian organization provides services for the transportation of passengers and cargo by sea between the ports of the cities of St. Petersburg and Kaliningrad. The points of departure and destination are in Russia. This means that the place of sale of these services is the Russian territory, and their sale is subject to VAT.

In conclusion, we recall that the documents confirming the place of provision of services are:

• a contract concluded with a foreign company;
• acts of their delivery and acceptance;
• documents on state registration of a foreign legal entity.

Lawyer M.I. Dmitrieva

www.klerk.ru

VAT on services for non-residents in russia

After that, the tax agent gets the right to deduct the VAT withheld from the income of the foreigner (provided that the work, services are used in taxable activities).
The agent needs to keep in mind that in this case the tax is paid to the budget simultaneously with the amount transferred to the foreign partner.
The bank will not accept a payment order for transferring funds to a partner without an order to pay withholding tax (para.
2, 3 p. 4 art 174 5 Art. 45

Tax Code of the Russian Federation), in order to transfer VAT to the budget, a tax agent - a Russian organization needs to decide on the ruble rate in relation to foreign currency, at which the tax base is recalculated (in our case, this is the contract amount).

The finance department considers that in accordance with cl.

Informer course2.rf informer course2.ukr

The services are directly related to real estate (except for aircraft, ships and inland navigation vessels, as well as space objects), which is located on the territory of the Russian Federation.

This, for example, construction, installation, construction and installation, repair, restoration work, landscaping work, rental services.
Let's say a firm provides services to a foreign company for the reconstruction of an office building in St.
Consequently, the provision of services is subject to VAT; 2.
The services are related to movable property, aircraft, sea vessels and inland navigation vessels located on the territory of the Russian Federation. These are, for example, work related to installation, assembly, processing, processing, repair and maintenance.

Provision of services to a non-resident

VAT charged on the intermediary's fee (€ 300 x 18/118 x RUB 39.0532 / €)<* 90-3 68-2 1 787 <* В целях упрощения принято, что услуги посредника признаны в момент осуществления расчетов между сторонами. В бухгалтерском учете покупателя (комитента) будут сделаны проводки: Содержание операции Дебет Кредит Сумма,руб.

When rendering services by a foreign partner Reflected the provision of services by a foreign partner (3000 euros x 38.8534 rubles / euros) 20 60 116 560 When settlements with an intermediary Transferred payment to the intermediary without VAT (3000 euros x 39.0532 rubles / euros) 76 51 117 160 VAT separately transferred to the intermediary (540 euros x 39.0532 rubles / euro) 76-VAT 51 21 088 The obligations of the intermediary and the foreign partner were offset 60 76 117 160 The difference in repayment of the obligation is reflected (117 160 - 116 560) rubles.

VAT on services of non-residents outside the Russian Federation

The Protocol reads as follows: place of activity of the Russian Federation, if the above-mentioned services are purchased by a taxpayer of the Russian Federation.

You are not a taxpayer of the Russian Federation, which means that the place of business is not the Russian Federation, and therefore the place of sale is not the Russian Federation.

Means no VAT. But this is if the services are specifically for this point.

The holding of the conference can be different.
Of the Tax Code of the Russian Federation, the tax base is recalculated into rubles at the rate of the Central Bank of the Russian Federation as of the date of actual expenses incurred (Letter of 03.07.2007 N 03-07-08 / 170).

Example 1. A Russian organization purchases from a foreign partner that is not registered with the tax authorities of the Russian Federation, services related to the adjustment of equipment and provided on the territory of the Russian Federation.

The cost of the work is estimated at 3540 euros. The equipment, like the work itself, is intended for conducting VAT-taxable activities. For the sake of clarity, let's assume that, according to the contract, settlements are made upon the delivery of services. The euro exchange rate at the date of services was 38.8534 rubles. per euro, on the date of calculation - 39.0532 rubles. for the euro.

Under the terms of the contract, it is envisaged to withhold VAT from income transferred to a foreign partner.

The amount of VAT subject to withholding is € 540 (€ 3,540 x 18/118).

VAT when providing services to a non-resident

For example, the company provides computer repair services.

The company's repair shop is located in Smolensk.

Since these services are related to movable property located on the territory of Russia, the place of their sale is Russia; 3.

Services are actually rendered on the territory of Russia in the field of culture, art, education (training), physical culture, tourism, recreation and sports.

For example, a Russian company provides training services for foreign specialists. The training takes place in Russia. Consequently, the place where these services are sold is Russia. And if so, their implementation is subject to VAT; 4. The buyer of services operates in the territory of the Russian Federation.

VAT for the provision of services by a resident to a non-resident

The following entries will be made in the accounting records of a Russian organization: Operation content Debit Credit Amount, rub. As of the date of the provision of services by the foreign partner Reflected the provision of services by the foreign partner excluding VAT ((3540 euros - 540 euros) x 38.8534 rubles / euro) 20 60 116 560 As of the date of settlements with the foreign partner and with the VAT budget The difference in repayment of the obligation is reflected 160 - 116 560) rub.

Payment of vat when rendering services to a non-resident

The place of business of an organization or an individual entrepreneur performing types of work (providing types of services) not provided for in paragraphs. 1 - 4.1 clause 1 of Art. 148 of the Code, the territory of the Russian Federation is considered in the event of the actual presence of this organization or an individual entrepreneur on the territory of the Russian Federation on the basis of state registration, and in its absence - on the basis of the place specified in the constituent documents of the organization, the place of management of the organization, the location of the permanent executive body organizations, the location of the permanent mission in the Russian Federation (if the work is performed (services are provided) through this permanent mission) or the place of residence of an individual entrepreneur (clause 2 of article 148 of the Tax Code of the Russian Federation). Subparagraphs 1 - 4.1 of paragraph 1 of Art. 148 of the Code are an exception to this rule.

The Russian organization has the right to deduction in the tax period in which the tax was paid to the budget (Letter of the Ministry of Finance of Russia dated July 15, 2009 N 03-07-08 / 151, Resolution of the FAS SKO dated December 21, 2009 N A32-21695 / 2008-46 / 378-2009-34 / 283), although tax authorities postpone the deduction to the next tax period (Letters of the Federal Tax Service of Russia dated 07.09.2009 N 3-1-10 /, dated 14.09.2009 N 3-1-11 / 730).

Purchase of services through a Russian intermediary The situation when services are purchased from foreign partners through the customer's intermediaries is not common, but occurs. In such cases, the duties of the tax agent to pay VAT are assigned to the intermediary acting on his own behalf and at the expense of the consignor (foreign company).

helpcredits.ru

Provision of services to a non-resident on the territory of the Russian Federation vat