ARBITRATION COURT OF THE SVERDLOVSK REGION
620075 Ekaterinburg, st. Shartashskaya, 4,
www.ekaterinburg.arbitr.ru e-mail: [email protected]
In the name of the Russian Federation
SOLUTION
The Arbitration Court of the Sverdlovsk Region, composed of Judge E.V. Bushueva, with the minutes of the court session kept by the assistant judge M.A. Merinova, considered case No. A60-8786/2016 on the application
Nizhny Tagil Municipal Unitary Enterprise "Gorenergo" (TIN 6623053107)
to the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region (TIN 6623000850)
to invalidate the decision,
when participating in a court hearing:
from the applicant: T.V. Ulitina, representative by power of attorney No. b/n dated 08/06/2015; S.P. Golovkov, lawyer at the written request of T.V. Ulitina by way of subrogation dated March 28, 2016,
from the interested party: I.B. Belevich, representative by power of attorney dated September 22, 2015 No. 07-19/16794, I.V. Emelyanova, representative by power of attorney dated December 4, 2015 No. 07-19/21932, E.I. Gordienko, representative by power of attorney dated September 28, 2015 No. 07-19/17142.
Procedural rights and responsibilities are clarified. The court composition was not challenged. No petitions or statements were received.
The Nizhny Tagil municipal unitary enterprise "Gorenergo" (hereinafter - the applicant, NT MUP "Gorenergo") appealed to the Arbitration Court of the Sverdlovsk Region with an application to the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region (hereinafter - the interested party, the tax authority) to invalidate the decision dated 10/08/2015 No. 18803/15 on refusal to partially reimburse value added tax in the amount of 11,511,310 rubles. 00 kopecks, the corresponding part of the penalty and fine.
The applicant clarified the stated requirements in accordance with the article of the Arbitration Procedural Code of the Russian Federation and asks to invalidate the decision of October 8, 2015 No. 18803/15 on the refusal to partially reimburse the value added tax in the amount of 11,511,310 rubles. 00 kopecks, the corresponding part of the penalty and fine, decision dated October 8, 2015 No. 18802/15 on the refusal to prosecute for committing a tax offense in terms of refusal to reimburse value added tax in the amount of 11,511,310 rubles. 00 kopecks, the corresponding part of the penalty and fine.
The interested party has submitted a review and requests that the stated demands be denied.
Having considered the case materials, the arbitration court
INSTALLED:
The interested party conducted a desk tax audit of the updated tax return for value added tax (hereinafter referred to as VAT) for the 4th quarter of 2014, submitted by the applicant on May 13, 2015.
In the updated tax return for the 4th quarter of 2014, the total amount of VAT claimed for reimbursement amounted to 16,189,321 rubles. 00 kop.
During a desk tax audit, the interested party verified the validity of the declared tax deductions for VAT.
Based on the results of a desk tax audit by the tax authority, the amount of tax claimed for reimbursement was partially confirmed, namely in the amount of 4,678,011 rubles. (decision on partial reimbursement of the amount of VAT claimed for reimbursement dated August 24, 2015 No. 18127/15).
The audit established that the applicant had unlawfully submitted for VAT refund for the 4th quarter of 2014 in the amount of RUB 11,511,310.
In the submitted tax return, the taxpayer declared a tax base in the amount of 322,386,836 rubles, VAT was calculated in the amount of 58,029,630 rubles.
During the desk tax audit, the tax base for sales of goods (work, services) was established in the amount of 386,338,556 rubles, VAT was calculated for payment to the budget in the amount of 69,540,940 rubles.
Thus, the interested party established that the applicant had understated the tax base for transactions involving the sale of goods (works, services) in the amount of 63,951,720 rubles, and the incomplete payment of VAT amounted to 11,511,310 rubles.
The results of the audit are documented in the tax audit report dated August 27, 2015 No. 29191/15.
Based on the results of the audit, the interested party made a decision dated 10/08/2015 No. 18803/15 on the refusal to partially reimburse the value added tax in the amount of 11,511,310 rubles, a decision on the refusal to prosecute for committing a tax offense dated 10/08/2015 No. 18802/15, which established the unlawful presentation for reimbursement from the budget of value added tax for the 4th quarter of 2014 in the amount of 11,511,320 rubles. as a result of unlawful actions of the taxpayer, resulting in an understatement of the tax base.
The basis for making these decisions were the conclusions of the interested party that the applicant unreasonably included in the VAT deductions the economic unjustified costs of technological losses in excess of the norm, resulting from the transfer to end consumers of heat energy previously purchased from the supplier. This thermal energy was not presented to customers in full and was not aimed at making a profit, that is, it was not used for activities subject to VAT.
The applicant, not agreeing with these decisions, appealed them to the Office of the Federal Tax Service for the Sverdlovsk Region.
By the decision of the Office of the Federal Tax Service of Russia for the Sverdlovsk Region dated November 30, 2015 No. 1409/15, the decisions of the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region dated October 8, 2015 No. 18802/15, October 8, 2015 No. 18803/15 were left unchanged.
Believing that the decisions of 08.10.2015 No. 18802/15, 08.10.2015 No. 18803/15 do not comply with the provisions of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation, the Code) and violate the rights and interests of the applicant, the latter appealed to the Arbitration Court of the Sverdlovsk Region.
Having examined the case materials, the court recognizes the application as subject to satisfaction for the following reasons.
In this case, there is a transfer on a compensated basis of the ownership of heat energy acquired in order to compensate for losses, as a necessary component of material costs for the company to carry out activities for the transfer of heat energy, which is subject to VAT taxation in accordance with the article of the Tax Code, therefore the taxpayer is justified exercised the right to deduct VAT.
Since heat energy transfer services are operations subject to value added tax, and the purchase of heat energy to compensate for excess losses in networks is directly related to this activity and is carried out by virtue of the direct instructions of the law, the network organization has the right to deduct VAT presented by the energy supplier.
These conclusions are consistent with the legal position set out in the ruling of the Supreme Court of the Russian Federation dated July 29, 2015 in case No. 303-KG15-1752.
At the same time, the court notes that the resolution of the Seventeenth Arbitration Court of Appeal dated May 6, 2016 No. 17-AP-3896/2016-AK established similar factual circumstances and satisfied the requirements of NT MUP "Gorenergo" to invalidate the decision of the interested party.
The reference of the interested party to paragraph 10 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On some issues arising in arbitration courts when considering cases related to the collection of value added tax” is not accepted by the court, since its provisions do not apply for controversial legal relations.
Thus, the contested decisions are unlawful, as they contradict the norms of substantive law and violate the rights of the taxpayer.
Based on the above, the stated requirements must be satisfied in full.
In accordance with Art. According to the Arbitration Procedural Code of the Russian Federation, court costs for payment of state fees are subject to recovery from the interested party in favor of the applicant.
Guided by the articles, -, Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested with separate functions by federal law state or other public powers, officials > Article 201. Arbitration court decision in the case of challenging non-normative legal acts, decisions and actions (inaction) of bodies exercising public powers, officials" target="_blank">201 of the Arbitration Procedural Code of the Russian Federation , arbitration court
DECIDED:
1. Satisfy the stated requirements.
2. Invalidate the decision of the Interdistrict Inspectorate of the Federal Tax Service No. 16 for Sverdlovskaya dated 10/08/2015 No. 18803/15, the decision of the Interdistrict Inspectorate of the Federal Tax Service No. 16 for Sverdlovskaya dated 10/08/2015 No. 18802/15 on the refusal to prosecute for committing tax offenses regarding refusal to reimburse value added tax in the amount of RUB 11,511,310. 00 kopecks, corresponding penalties and fines.
Oblige the Interdistrict Inspectorate of the Federal Tax Service No. 16 for Sverdlovsk to eliminate violations of the rights and legitimate interests of the Nizhny Tagil municipal unitary enterprise "Gorenergo" (TIN 6623053107).
3. In order to distribute legal costs, recover from the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region (TIN 6623000850) in favor of the Nizhny Tagil Municipal Unitary Enterprise "Gorenergo" (TIN 6623053107) the cost of paying the state duty in the amount of 6,000 rubles. 00 kop.
4. The decision in this case comes into force after a month has passed from the date of its adoption, unless an appeal has been filed. If an appeal is filed, the decision, unless it is canceled or changed, comes into force from the date of adoption of the decision of the arbitration court of appeal.
5. The decision can be appealed through appeal proceedings to the Seventeenth Arbitration Court of Appeal within a month from the date of the decision (making it in full).
The appeal is submitted to the arbitration court of the appellate instance through the arbitration court that made the decision. An appeal can also be filed by filling out a form posted on the official website of the arbitration court on the Internet http://ekaterinburg.arbitr.ru.
In case of appealing a decision through the appellate procedure, information about the time, place and results of the consideration of the case can be obtained on the website of the Seventeenth Arbitration Court of Appeal http://17aas.arbitr.ru.
Judge E.V. Bushueva
Court:
AS of the Sverdlovsk regionPlaintiffs:
MUP "GORENERGO", NIZHNETAGILDefendants:
INTERDISTRICT INSPECTORATE OF THE FEDERAL TAX SERVICE No. 16 FOR THE SVERDLOVSK REGIONThe Company purchases electrical and thermal energy from suppliers. During the audit, auditors identified losses in the consumption of electrical and thermal energy (the difference between the amounts of energy purchased by the company and the energy consumed by its divisions).
The standard for the amount of electrical energy losses is established by the company in the annex to the decision of the regional energy commission (REC), and the amount of thermal energy losses is established by an internal document of its supplier.
What is the likelihood of a tax authority filing a claim in this situation?
According to the provisions of Art. 252, 254 of the Tax Code of the Russian Federation, expenses are recognized as justified (economically justified) and documented (certified by documents drawn up in accordance with the legislation of the Russian Federation) expenses incurred by the taxpayer, the assessment of which is expressed in monetary form. By virtue of sub. 3 paragraph 7 art. 254 of the Tax Code of the Russian Federation, technological losses during production and (or) transportation for tax purposes are equated to material costs.
According to the clarifications of the Ministry of Finance of Russia * (1) and the Department of Taxation of Russia for Moscow * (2), natural indicators characterizing technological losses arising during the conduct of a specific technological process must also be justified and documented. In this case, technological losses are taken into account in reducing the tax base as part of the assessment of the cost of material costs transferred to production. The organization determines the standard for waste generation for each specific type of raw material or materials used in production, based on the characteristics of the technological process. The standard is established by a technological map or other similar internal document developed by specialists controlling the technological process, and approved by persons vested with the appropriate authority.
The Ministry of Finance of Russia, in a letter dated November 1, 2005 N 03-03-04/1/328, explained the following on this issue. The procedure for industry regulation of issues of development and approval of standards for technological losses during production and (or) transportation is not the subject of legislation on taxes and fees. The taxpayer himself determines this standard based on the technological features of his own production cycle and the transportation process of each specific type of raw material used in production. This standard at an enterprise can be established, in particular, by a technological map, process estimate or other similar document * (3). These documents are internal, do not have a unified form, and therefore are developed by enterprise specialists who control the technological process (for example, technologists) and approved by persons authorized by the enterprise management (for example, chief technologist or chief engineer).
To establish standards for the generation of technological waste, industry regulations, calculations and studies of the organization's technological services, or other limits regulating the course of the technological process are used. These documents, as the Russian Ministry of Finance believes, serve as confirmation of expenses in the form of technological losses during production and (or) transportation for those taxpayers who do not draw up a technological map or other similar document.
Compensable losses of electricity during its transportation can be written off as a reduction in the tax base for corporate income tax as technological losses during production and (or) transportation within the limits of the standard for technological losses (letter of the Ministry of Finance of Russia dated January 26, 2006 N 03-03-04/ 4/19). Excessive losses in electrical networks (for example, those resulting from unauthorized connection of consumers to these networks) cannot reduce the taxable profit of the taxpayer as unreasonable.
Meanwhile, the judiciary has a different opinion. Most decisions are based on the position of non-application of any rules to the accounting of technological losses as part of income tax expenses (see, for example, Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated September 6, 2005 in case No. F08-4016/2005-1601A, FAS Central District dated December 18, 2006 in case No. A54-1667/2006C2). The FAS of the West Siberian District also indicated in its Resolution dated February 27, 2006 in case No. F04-602/2006(19970-A46) that there are no limits, norms and standards for the costs of transporting electrical energy by current regulations in the field of taxation -33). The FAS Moscow District, in its Resolution dated December 15, 2006 in case No. KA-A40/11448-06, noted that restrictions are provided only in relation to the norms of natural loss.
Indeed, the literal interpretation of sub. 3 paragraph 7 art. 254 of the Tax Code of the Russian Federation does not allow us to assert the spread of mandatory rationing of expenses for technological losses, in contrast to expenses in the form of natural loss, the rationing of which for tax purposes is directly provided for in subsection. 2 of the same point. In this regard, we consider the recommendations of the Russian Ministry of Finance to recognize technological losses within the standard limits in expenses as unlawful.
Let us dwell on the judicial interpretation of taxpayers’ compliance with the requirement of documentary evidence of expenses for technological losses associated with the transportation of electricity. Expenses can be confirmed by the enterprise’s own calculation of the useful supply of electricity (see Resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 6, 2005 in case N F08-4016/2005-1601A) or calculations justifying the amount of electricity losses in networks and transformers (see Resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 13, 2006 in case No. F08-4146/2006-1763A). The courts also accept the enterprise's independent calculation of planned losses, developed on the basis of the values of previous years (see Resolution of the Federal Antimonopoly Service of the West Siberian District dated February 15, 2007 in case No. F04-297/2007(31205-A03-31)).
The amount of technological losses can be determined by agreement between the energy supply organization and the subscriber. As the Federal Antimonopoly Service of the West Siberian District indicated in the Resolution of February 27, 2006 in case No. F04-602/2006 (19970-A46-33), losses on networks that are on the balance of the subscriber when transporting energy to places of consumption are included in the tariff of the energy supply organization are not included, are calculated by it based on meter readings and presented to the subscriber. In this case, losses mean the amount of electricity spent on overcoming the resistance of the material of the high-voltage line wires, heating the wires, etc. In fact, for the subscriber, such losses are costs associated with energy transportation.
Thus, as documentary evidence, the courts accept an independent calculation of the enterprise’s losses, also allowing the determination of the amount of technological losses by contract between the energy supplying organization and the subscriber.
Regarding the use of standards established by energy commissions, we inform you as follows. To justify the unlawfulness of the taxpayer recognizing technological losses during the transportation of electricity in income tax expenses, the tax authorities refer to the standards established by the Federal Energy Commission (FEC). The judicial authorities do not consider this position to be legitimate. For example, the Federal Antimonopoly Service of the North Caucasus District in its Resolution dated July 4, 2006 in case No. F08-2918/06-1227A indicated that “Methodological guidelines for calculating regulated tariffs and prices for electric (heat) energy in the retail (consumer) market, approved by Resolution of the Federal Economic Commission of Russia dated July 31, 2002 N 49-e/8, do not establish the specifics of determining expenses recognized for income tax purposes. Consequently, the reference of an interested party to these methodological recommendations is unlawful. To include material costs incurred, including including in the form of technological losses, the composition of expenses when determining taxable profit requires the presence of documentary evidence of losses and their validity."
Nadezhda asks:
The apartment building has an autonomous heating system - boiler room. It belongs to our organization. The said house contains non-residential premises, which also belong to us by right of ownership.
The organization does not have the status of a heat supply organization, and we do not sell heat energy. We entered into an agreement with the company managing the house, under the terms of which this company compensates us for the costs associated with providing the building (common property and residential premises) with thermal energy. Compensation is determined in a fixed amount.
Do we understand correctly that compensation received from the management company may not be subject to VAT? After all, if we did not have a contractual relationship with the management company, then the amounts collected in court from the residents of the house for consumed heat, as unjust enrichment, would not be subject to VAT.
According to sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation, the VAT tax base is increased by amounts received for goods (work, services) sold, in the form of financial assistance, to replenish special-purpose funds, to increase income or otherwise related to payment for goods (work, services) sold. Thus, it does not matter how the relationship between the parties is documented. For VAT purposes, the main thing is that there is a fact of sale of goods (work, services) and payment is related to this sale.
From the terms of the concluded agreement it follows that the organization receives compensation for costs associated with providing thermal energy to the entire building. That is, residents of an apartment building consume thermal energy produced in the boiler room of the organization. For tax purposes, a service is recognized as an activity whose results do not have material expression and are sold and consumed in the process of carrying out this activity (Clause 5 of Article 38 of the Tax Code of the Russian Federation). Consequently, the organization provides residents with the service of heating their apartments.
The provision of services by one person to another person on a paid or gratuitous basis is considered a sale (Clause 1, Article 39 of the Tax Code of the Russian Federation). In the situation under consideration, the service for heating the building is paid. After all, the company receives compensation for the generation of energy consumed by residents. Thus, the organization actually sells heat energy to residents and is a heat supply organization for them (Clause 11, Article 2 of the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply”). As stated in the resolution of the Volga-Vyatka District AS of October 27, 2015 No. F01-3656/2015, in order to recognize an organization as a heat supply, it must have a produced resource for sale to consumers, as well as legally possess the necessary equipment.
The fact that the sale of thermal energy does not take place under a heat supply agreement and not at regulated prices does not matter for tax purposes. In accordance with paragraph 3 of Art. 2 of the Civil Code of the Russian Federation, civil legislation does not apply to tax relations.
Let us note that in the absence of a heat supply agreement and the recovery through court of amounts of unjust enrichment in the form of thermal energy consumed by residents, these amounts are subject to VAT. Thus, the AC of the North-Western District, in a resolution dated February 18, 2016 in case No. A56-18113/2015, considered the situation when an enterprise carried out non-contractual consumption of thermal energy. The heat supplier company filed a lawsuit to recover unjust enrichment from the enterprise in the form of the cost of non-contractual consumption of thermal energy, including VAT. The court indicated that the consumption of thermal energy without concluding a heat supply agreement in the prescribed manner is considered non-contractual (Clause 29, Article 2 of Federal Law No. 190-FZ of July 27, 2010). According to paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 17, 1998 No. 30 “Review of the practice of resolving disputes related to energy supply contracts,” the absence of contractual relations does not relieve the consumer from the obligation to reimburse the cost of the thermal energy supplied to him.
Since the enterprise received thermal energy, in accordance with the norms of the Tax Code of the Russian Federation, it is obliged to pay the energy supplier company VAT as part of the purchase price. The fact that the cost of consumed thermal energy in the absence of a concluded heat supply contract is collected in the manner of unjust enrichment does not relieve the supplier company from the obligation to present for payment the corresponding amount of VAT in addition to the cost of non-contractual consumption. In this case, non-contractual consumption of thermal energy is recognized as a VAT-taxable operation in accordance with clause 1 of Art. 146 of the Tax Code of the Russian Federation. Therefore, the supplier company justifiably issued invoices for payment of the thermal energy actually consumed by the enterprise, including VAT.
Similar conclusions are contained in the resolution of the AC of the North-Western District dated November 24, 2015 in case No. A26-447/2015 regarding non-contractual electricity consumption (Decision of the Supreme Court of the Russian Federation dated March 23, 2016 No. 307-KG16-1324 refused to transfer the case to the Judicial Collegium on economic disputes).
And in the case considered by the Moscow District Court in resolution No. F05-9021/2015 dated 09/07/2015, the court found it lawful to charge VAT on the amount of unjust enrichment for the period of illegal use of property. He pointed out that unjust enrichment in the present case represents rent for the use of equipment, and for tax purposes - a transaction for the sale of services, subject to VAT.
So, since the amount of compensation received by the company under an agreement with the management company is related to payment for the thermal energy supplied to residents, it is based on sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation is subject to VAT.
Good afternoon I request you to provide advice on the following issue: our developer organization is constructing a residential building; in accordance with the design documentation, utility networks and structures are included in the construction zone, the owner of which is “Teploset”, and therefore there is a need to remove utility networks and structures from the zone carrying out works by eliminating them and then restoring them by constructing according to a modified laying plan. "Heating Network" proposed to conclude a compensation agreement, according to which the Organization would compensate all the costs of "Heating Network" associated with the liquidation and subsequent construction of the network section. Using the compensation received, Heating Network itself will liquidate and build networks. The compensation agreement states that “the funds paid as compensation are funds of targeted financing directed by Heating Network exclusively for the purpose of implementing the subject of this agreement,” at the same time, the amount of compensation is determined, which is indicated with VAT. Is it possible to allocate VAT in this case in the contract price? Is compensation subject to VAT, is there a contradiction with the phrase about the intended use? Attached to the compensation agreement is a Consolidated Statement of Costs, which includes “Funds to cover the costs of paying VAT” and “Heating Network Income Tax.” Is it legal to include income tax and value added tax in the consolidated statement of expenses? Can an organization compensate taxes? another organization, especially income tax? Can our Organization include the costs of this agreement in the costs of the facility? Thank you very much in advance!
Answer
First, let’s decide on the classification of your transaction (Article 431 of the Civil Code of the Russian Federation). To do this, we use the Decree of the Moscow Government dated July 25, 2011 No. 333-PP “On the procedure for providing monetary compensation to the owners of utility networks and structures, communication structures, communication lines and communication networks.” The relevant Procedure determines the rules for the implementation, by agreement of the parties, of monetary compensation to the owners of utility networks subject to demolition and (or) restoration during the construction of capital construction projects carried out at the expense of the budget of the city of Moscow. Clause 4 of the Procedure states that monetary compensation to property owners is made by compensating the property owner for losses. Losses are also mentioned in clause 5 of the Procedure. Therefore, the subject of your agreement with Heating Network is compensation for losses. The appendix to the Procedure contains a sample agreement on the implementation of monetary compensation to the owners of utility networks ... subject to demolition and (or) restoration during the construction of capital construction projects. Clause 3.1.1 of the Model Agreement provides for the payment of monetary compensation to the owner of the property, with a separate amount of VAT.
However, on the issue of collecting the amount of VAT as a loss, it is necessary to be guided by the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 23, 2013 No. 2852/13 in case No. A56-4550/2012. It clarifies: expenses cannot be included in damages that, although incurred by the victim as a result of the offense, are compensated to him in full from other sources. Otherwise, grounds would be created for the victim to repeatedly receive the same amounts of compensation and, accordingly, for them to derive property benefits, which is contrary to the goals of the institution of compensation for harm. The victim must prove that the VAT amounts that will be charged to him cannot be taken for deduction, that is, they represent his uncompensated losses (damages). And the fact that tax deductions are provided for by the norms of tax, and not civil legislation, does not prevent their recognition as a special mechanism for compensating the expenses of a business entity. The presence of the right to deduct tax amounts excludes a reduction in the property sphere of a person and, accordingly, the application of Art. 15 Civil Code of the Russian Federation. A person entitled to a deduction must be aware of its existence, must comply with all legal requirements to obtain it, and cannot transfer the risk of non-receipt of the corresponding amounts to his counterparty. And if Heating Network has the right to accept the VAT amounts presented to it for deduction, then it will experience unjust enrichment by receiving VAT amounts twice - both from the budget and from the developer, without any counter-provision. I suggest you deal with this issue yourself.
Compensation for losses in itself does not form an object of VAT taxation, therefore the allocated amount of tax does not give rise to your right to deduction (you will not be given an invoice).
Income tax is not refundable, therefore its compensation as part of losses is legal.
For profit tax purposes, expenses for compensation for damage caused are classified as non-operating expenses (clause 13, clause 1, article 265 of the Tax Code of the Russian Federation). The actual damage includes expenses that a person will have to make to restore the violated right (Clause 2 of Article 15 of the Civil Code of the Russian Federation). The need for such expenses and their estimated amount must be confirmed by a reasonable calculation, evidence, which can be an estimate (calculation) of the costs of eliminating deficiencies in goods, works, services; an agreement defining the amount of liability for violation of obligations, etc. (Clause 10 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation”).
As for the mention in the agreement on targeted financing, it is used in a civil law sense. This means that Heating Network does not provide the payer with any counter-representation and uses the funds received for the purpose determined by the Consolidated Statement of Costs.
The state of utility networks, to put it mildly, leaves much to be desired. Thus, on average in Russia, water losses in water pipelines are 15%, and in some cities - 25%. The figures for heat are also “bleak”: losses today reach 30%, and in some cases even 50%. This situation is aggravated by the growing number of accidents. Therefore, reducing losses of utility resources is one of the goals of housing and communal services reform. In the meantime, while the reform is gaining momentum, the issues of taxation of technological losses, due to the significant size of the latter, are very relevant for the housing and communal services sector. The positions of officials and judges on this issue, as in most other cases, diverge. Let's take a closer look at them.Position of officials: the main thing is the standard
According to Art. 247 Tax Code of the Russian Federation The object of income tax for Russian organizations is the income received, reduced by the amount of expenses incurred. Last according to clause 1 art. 252 Tax Code of the Russian Federation Justified and documented expenses incurred (incurred) by the taxpayer are recognized. Economically justified costs are considered justified, the assessment of which is expressed in monetary form, and documented - drawn up in accordance with the legislation of the Russian Federation. In this case, any expenses are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income.
Technological losses are equated for profit tax purposes to material expenses. In accordance with pp. 3 paragraph 7 art. 254 Tax Code of the Russian Federation These are losses during the production and (or) transportation of goods (work, services), due to the technological features of the production cycle and (or) the transportation process, as well as the physical and chemical characteristics of the raw materials used.
As we can see, the Tax Code does not contain clarifications regarding the amount of losses, and they fully comply with the requirement of economic justification. At the same time, the tax and financial departments recommend that taxpayers adhere to established standards, and if such standards do not exist, develop them independently. Thus, in their opinion, organizations will confirm the validity of the costs.
So, in Letter of the Ministry of Finance of the Russian Federation dated August 29, 2007 No. 03-03-0 6/1/606 Although officials admit that the procedure for industry settlement of issues of developing and approving standards for technological losses during production and (or) transportation is not the subject of legislation on taxes and fees, they note that based on the technological features of their own production cycle and the transportation process, taxpayers can independently determine the standards for the generation of irrevocable waste for each specific type of raw material used in production. They can be established by technological maps, estimates or other similar documents, which are internal documents that do not have a unified form, which are developed by enterprise specialists who control the process (for example, technologists) and approved by persons authorized by the enterprise management (for example, chief technologist or chief engineer).
Similar conclusions were made in Letter of the Ministry of Finance of the Russian Federation dated September 21, 2007 No. 03-03-0 6/1/687. Let us add that in Letter dated March 27, 2006 No. 03-03-0 4/1/289 financiers have noticed that the need to draw up a technological map, process estimate or other similar document is determined by the peculiarities of the technological process. In the event that the taxpayer does not draw up a technological map or other similar document, confirmation of expenses in the form of technological losses during production and (or) transportation are industry regulations, including GOSTs, calculations and studies of the organization’s technological services, or other limits regulating the course of the technological process.
So, according to the official position, losses can be written off as a reduction in taxable profit only within the limits of the standard. In this regard, excess losses of drinking water resulting from the fault of third parties, for example consumers, etc., as unreasonable, cannot reduce the taxable profit of the taxpayer ( Letter of the Ministry of Finance of the Russian Federation dated May 17, 2006 No. 03-03-0 4/1/462). Exactly the same approach applies to losses during the transportation of electricity: excess losses resulting from unauthorized connection to consumer networks, as unreasonable, cannot reduce the tax base for income tax ( Letter of the Ministry of Finance of the Russian Federation dated January 26, 2006 No. 03-03-0 4/4/19).
Despite the large number of letters prohibiting the recognition of excess losses when taxing profits, there is one clarification from the Ministry of Finance given regarding technological losses during oil transportation, which does not talk about any standards. Moreover, we emphasize that since the Code does not provide otherwise, these technological losses are taken into account for profit tax purposes based on actual size, taking into account their validity and documentary evidence ( Letter of the Ministry of Finance of the Russian Federation dated August 14, 2007 No. 03-03-0 5/218).
Judges’ position: losses are related to the main activity
income tax
All of the above provisions form the basis of inspectors’ claims against taxpayers. Often, such tax disputes end up in court, and the arbitrators in most cases do not agree with the officials. So, in Resolution of the FAS VSO dated February 28, 2007 No. A74-264 1/06-F02-71 7/07 Tax officials justified their demands by the fact that the city administration approved the amount of technological water losses for the Vodokanal municipal unitary enterprise. Consequently, water losses exceeding the approved percentage are above the norm and are not subject to exclusion from the income tax base.
The court found that the municipal unitary enterprise systematically analyzes the losses of purchased water (the municipal unitary enterprise purchased water from the supplier and sold it to consumers, part of the resource was lost during the transportation process), conducts research into the reasons for unaccounted consumption, the results of which are documented in acts and technological maps, therefore, these expenses are documented . In addition, such expenses arise when an enterprise carries out its main activities in order to make a profit, therefore, despite the fact that water losses exceed those planned (due to deterioration of water supply networks), these costs are recognized as economically justified. Moreover, the current regulations in the field of taxation do not provide for limits, norms and standards for the costs of water transmission. And the standards adopted for the purpose of calculating water consumption tariffs are not used for taxation.
Interesting another trial ( Resolution of the Federal Antimonopoly Service ZSO dated October 8, 2007 No. F04-692 2/2007(38872-A03-15)): when calculating income tax, the company applied the standard for losses of electricity and heat, calculated not for the current, but for the next year. The tax authorities did not agree with this. The court, in turn, considered that this standard was established for calculating tariffs for electrical and thermal energy. Pay attention to Letter of the Ministry of Finance of the Russian Federation dated August 29, 2007 No. 03-03-0 6/1/606, the court also confirmed that the procedure for industry settlement of issues of development and approval of standards for technological losses during production and (or) transportation is not the subject of legislation on taxes and fees. The disputed expenses were incurred by the taxpayer to conduct his main activity in order to generate income, evidence of such expenses was presented (bypass sheets, summary and selective statements of electricity consumption, calculation of losses during the transmission of thermal energy), therefore, they are related to production and sales and comply with the requirements clause 1 art. 252 of the Tax Code of the Russian Federation.
The given examples are not isolated - decisions on this issue in favor of taxpayers in 2007 were also made in resolutions of the Federal Antimonopoly Service of the North Caucasus Region dated September 5, 2007 No. F08-542 5/2007-2175, FAS Far Eastern Military District dated January 24, 2007 No. F03-A5 1/06-2/5160. In all cases, tax authorities charge additional income tax, excluding excess losses from expenses, applying some standard - most often established for pricing. However, in court, inspectors cannot prove the legality of their actions: the loss standard approved within the framework of tariff regulation or independent economic planning of an enterprise cannot be extended to tax legal relations. In addition, the arbitrators note that in paragraphs. 3 paragraph 7 art. 254 of the Tax Code of the Russian Federation does not contain any indication that such expenses are accepted within certain standards (see, for example, Resolution of the Federal Antimonopoly Service of October 2, 2007 No. A72-667 7/06-1 2/228).
Value added tax
Another category of disputes on the issue under consideration is the legality of deducting VAT on purchased utility resources in terms of losses that were not sold to consumers (as lost during transportation) or used in the production of utility resources for the same reason.
Regarding VAT deduction, in accordance with Art. 171, 172 Tax Code of the Russian Federation, the courts also declared the demands of the tax authorities illegal. According to clause 1, 2 art. 171 Tax Code of the Russian Federation the taxpayer has the right to reduce the total amount of tax calculated on the basis of Art. 166 Tax Code of the Russian Federation, for established tax deductions. Amounts presented and paid by the taxpayer when purchasing goods (work, services) on the territory of the Russian Federation are subject to deductions if they are purchased:
To carry out transactions recognized as objects of taxation in accordance with Ch. 21 Tax Code of the Russian Federation, with the exception of goods provided for clause 2 art. 170 Tax Code of the Russian Federation;
For resale.
According to clause 1 art. 172 Tax Code of the Russian Federation tax amounts presented to the taxpayer and paid by him upon the acquisition of goods (work, services) after the registration of these goods (work, services) and in the presence of the corresponding primary documents are subject to deductions.
Moreover, the provisions para. 2 clause 7 art. 171 Tax Code of the Russian Federation(about incomplete acceptance of “input” VAT for deduction) apply only if, in accordance with Ch. 25 Tax Code of the Russian Federation expenses are recognized according to standards. And since, as mentioned above, the arbitrators do not support the position on the standardization of technological losses, they allow VAT to be deducted in full.
So, in Resolution dated February 15, 2007 No. F04-29 7/2007(31205-A03-31) The judges of the FAS ZSO concluded that from the moment of purchasing cold water intended for resale, the enterprise had the right to reimbursement from the budget for the tax paid to the supplier, since the current tax legislation allows the enterprise to make tax deductions without taking into account the standards for electricity losses. The arbitrators reached a similar conclusion in their rulings FAS DVO dated May 11, 2007 No. F03-A5 1/07-2/974, Ninth Arbitration Court of Appeal dated October 18, 2007 No. 09AP-1371 9/2007-AK.
Drawing conclusions
It should be noted that this dispute has been going on for a long time. Having analyzed the points of view of officials and judges on the issue of technological losses, the following conclusions can be drawn. Despite the fact that Ch. 25 of the Tax Code of the Russian Federation does not contain restrictions when classifying technological losses as material costs; officials allow such costs to be written off only within the established standards, which the enterprise can develop independently. This is explained by the need to justify the amount of losses. And only for the part of expenses recognized during profit taxation, the deduction of “input” VAT is claimed.
The judges do not agree with this position: these costs for the taxpayer are material expenses. If such costs are justified and documented, then it is legal to include them in expenses when determining the taxable base for income tax and apply VAT deduction. Therefore, it is very important to constantly monitor the size of technological losses and draw up documents explaining the reasons for their occurrence.