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LETTER OF THE MINISTRY OF TAXES AND TAX COLLECTION OF THE REPUBLIC OF BELARUS

of January 9, 2012 No. 2-1-10/28

About the taxation

Due to the questions arising in case of acquisition and realization of tobacco products, the Ministry of Taxes and Tax Collection reports.

According to the Presidential decree of the Republic of Belarus of February 25, 2011 No. 72 "About some questions of price regulation (rates) in the Republic of Belarus" price regulation on tobacco products was performed by the Ministry of Economics in coordination with the Ministry of Trade till January 1, 2012.

Therefore, if the prices at which since January 1, 2012 the realization of tobacco products is enabled are not the regulated (fixed) retail prices, then in case of calculation of the VAT it is necessary to consider the following.

According to Item 3 of article 98 of the Tax Code of the Republic of Belarus (further - the Tax Code) the tax base of the value added tax in case of realization including tax on value added of the acquired (imported) goods is determined by regulated retail prices as positive difference between sales price and the price of acquisition of these goods.

Proceeding from Item 10 of Article 103 of the Tax Code in case of change of procedure for calculation of the value added tax (change of list of payers, the taxation objects, tax base, the moment of the actual realization, rates, procedure for application of release from the taxation) the new procedure for calculation is applied to shipped goods (the performed works, the rendered services), the property rights transferred from the moment of change of procedure for calculation of the value added tax.

Therefore, to the tobacco products shipped since January 1, 2012, procedure for determination of tax base, stipulated in Item 3 Articles 98 of the Tax Code it is not applied. In case of realization of tobacco products (including from the remaining balance which was available for January 1, 2012) from the specified date the tax base is determined in generally established procedure which is stated in subitem 1.1 of Item 1 of Article 98 of the Tax Code, i.e. proceeding from the prices (rates) for goods (works, services), property rights taking into account excises (for excise goods) without inclusion of the value added tax in them.

The procedure for deduction of the value added tax on the acquired (imported) tobacco products is regulated by regulations of Article 107 of the Tax Code.

So, by subitem 19.8 of Item 19 of Article 107 of the Tax Code it is determined that the tax amounts paid (which are subject to payment) the buyer are not deductible in case of acquisition and (or) commodity importation which tax base in case of realization is determined by the buyer as positive difference between sales price and the price of acquisition of these goods.

Thus, restriction of the right of deduction of the value added tax is effective concerning those goods which realization is enabled on regulated retail prices. Respectively in case of realization since January 1, 2012 of tobacco products at free prices the deduction of the tax amounts shown by sellers in source accounting documents is performed in generally established procedure without application of the above-stated restrictions in case of accomplishment of other conditions, the stipulated in Clause 107 Tax Code.

Concerning deduction of VAT amounts on the tobacco products which were available in remaining balance for January 1, 2012 and realized from the specified date at free prices we report the following.

If the tobacco products till January 1, 2012 were acquired at the producer of the specified products, calculation of the VAT by which it is made proceeding from goods sales price, concerning unrealized remaining balance of tobacco products to deduction the VAT amount falling on all-in cost of the acquired goods and shown by the producer can be accepted, and provisions of subitem 19.8 of Item 19 of Article 107 of the Tax Code are not applied since realization of tobacco products from the specified date is made not at the regulated (retail) prices. The deduction of tax is performed based on source accounting documents of the supplier in which the rate and tax amount (Item 5 of Article 107 of the Tax Code) are specified.

If the buyer (for example, the organizations of wholesale trade) in source accounting documents on acquisition has no data on the amount and tax rate estimated in the seller (producer), based on Item 8 of Article 105 of the Tax Code in case of creation of reconciliation statements of the calculations signed by the seller and the buyer, buyers have the right to accept the tax amount estimated in the seller proceeding from goods sales price to deduction.

In case of acquisition of tobacco products till January 1, 2012 at the organization estimating tax according to Item 3 of Article 98 of the Tax Code i.e. proceeding from difference between sales price and the price of acquisition, and realization of remaining balance of these tobacco products in 2012 at free prices, to deduction only the tax amounts estimated in the seller from the specified difference, allocated or in source accounting documents (Item 5 of Article 107 of the Tax Code) can be accepted, or in reconciliation statements of calculations (Item 8 of Article 105 of the Tax Code) as it is stated above.

Besides, according to subitem 22.2 of Item 22 of Article 107 of the Tax Code the payers estimating the value added tax taking into account features, stipulated in Item the 9th Article 103 of the Tax Code i.e. at the settlement rate, have the right to allocate independently for tax amount deduction for value added in case of purchase of goods on regulated retail prices.

Taking into account stated, the organizations of retail trade and (or) public catering estimating the value added tax at the settlement rate, having performed independent allocation for VAT amount deduction from the price of purchase of goods on regulated retail prices, concerning the remaining balance of tobacco products which was available for January 1, 2012, repeated allocation of tax amounts is not made. Taking into account that since January 1, 2012 the tobacco products are acquired not on regulated retail prices independent allocation of tax concerning the goods which arrived to the specified payers since January 1, 2012 not made, and to deduction the tax amount shown by the seller is accepted.

Deputy minister

E.A.Selitskaya

 

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