of April 3, 2013 No. ED-4-3/5875 @
About the direction of the letter of the Ministry of Finance of the Russian Federation
The Federal Tax Service sends the letter of the Ministry of Finance of the Russian Federation of 04.03.2013 N 03-07-15/6333 about application of the value added tax concerning the amounts received by sellers from buyers for violation of conditions of agreements, providing delivery of goods (works, services) liable to the value added tax.
Valid counselor of state of the Russian Federation 3 classes D. V. Egorov
LETTER OF THE MINISTRY OF FINANCE OF THE RUSSIAN FEDERATION
of March 4, 2013 No. 03-07-15/6333
The department of tax and customs and tariff policy considered question of application of the value added tax concerning the amounts received by sellers from buyers for violation of conditions of agreements, providing delivery of goods (works, services) liable to the value added tax, and reports.
According to the subitem 2 of Item 1 of article 162 of the Tax Code of the Russian Federation (further - the Code) the tax base on the value added tax increases by the amounts received for the realized goods (works, services) in the form of financial aid, by replenishment of Special Purpose Funds, on account of increase in the income or differently connected with payment of the realized goods (works, services).
With respect thereto we believe that in case of decision making by tax authorities about legitimacy of application (not application) by taxpayers of the specified regulation of the Code it is necessary to be guided, including, the resolution of Presidium of the Supreme Arbitration Court of the Russian Federation of February 5, 2008 N 11144/07 concerning dispute between tax authority and JSC Volga Oil Steam Navigation Volgotanker over the tax matter on value added of the amounts received by society for delay of obligation fulfillment by the partner.
In this resolution it is specified that penalty amount as responsibility for obligation fulfillment delay, received by society from the partner under the agreement, are not connected with payment of goods in sense of the mentioned provision of article 162 of the Code therefore are not subject to taxation on value added.
It should be noted that according to Item 1 of Article 330 of the Civil code of the Russian Federation penalty (penalty, penalty fee) the sum of money determined by the law or the agreement which the debtor shall pay to the creditor in case of non-execution or improper execution of the obligation, in particular in case of execution delay is recognized.
Therefore concerning the penalty amounts as responsibility for delay of obligation fulfillment on payment of the goods received by the seller from their buyer should be guided by the specified resolution of Presidium of the Supreme Arbitration Court of the Russian Federation.
At the same time, if the amounts received by sellers from buyers provided by conditions of agreements in the form of penalty (penalty, penalty fee), in essence are not penalty (penalty, the penalty fee) providing obligation fulfillment, and actually belong to the pricing element providing payment of goods (works, services), then such amounts join in tax base on the value added tax based on the above-named regulation of article 162 of the Code.
Director of the department of tax and customs and tariff policy I. V. TRUNIN
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