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Герб  оссии

ON BEHALF OF THE RUSSIAN FEDERATION
DECISION OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of September 12, 2013 No. BAC-10992/2013

About refusal in allowance of the application about recognition of the explanations containing in paragraphs the twenty ninth, thirtieth and thirty first Letters of the Federal Tax Service of the Russian Federation of 12.08.2009 No. ShS-22-3/634 @, not corresponding to the Tax Code of the Russian Federation

The substantive provisions of the decision are announced on September 5, 2013

The decision is made in full on September 12, 2013

The Supreme Arbitration Court of the Russian Federation as a part of the chief judge V. M. Tumarkin, E. N. Zarubina's judges, M. G. Zorina considered in proceeding in open court the application of joint-stock company of the simplified structure of "RENAULT SAMARA" (France) on behalf of branch of joint-stock company of the simplified structure of "RENAULT SAMARA" about recognition invalid paragraphs of the twenty ninth, thirtieth, thirty first letter of the Federal Tax Service of 12.08.2009 No. ShS-22-3/634 @ "About procedure for creation of invoices by tax agents".

Representatives took part in judicial session:

from the applicant - joint-stock company of the simplified structure of "RENAULT SAMARA" (France) on behalf of branch of joint-stock company of the simplified structure of "RENAULT SAMARA" - Kravchinsky L. V., Kononova A. S. (powers of attorney from 25.07.2013),

from the Federal Tax Service - Duminskaya O. S. (the power of attorney of 23:08. 2013), A.V. French (power of attorney of 13:09. 2012).

The protocol of judicial session was taken by the assistant judge M. V. Mokhova.

The court established:

the joint-stock company of the simplified structure of "RENAULT SAMARA" (France) on behalf of branch of joint-stock company of the simplified structure of "RENAULT SAMARA" (further - branch of the foreign organization) appealed to the Supreme Arbitration Court of the Russian Federation with the statement specified in preliminary and judicial meetings for recognition not corresponding to the Tax Code of the Russian Federation (further - the Code) letters of the Federal Tax Service of 12.08.2009 No. ShS-22-3/634 @ "About procedure for creation of invoices by tax agents" (further - the letter of FNS of Russia) regarding the explanations containing in paragraphs the twenty ninth, thirtieth and thirty first, and invalid in the specified parts.

The branch of the foreign organization claims that the disputed paragraphs of the letter of FNS of Russia illegally interfere with tax agents - the buyers performing payments to the foreign persons (who are not staying on tax accounting and recognized by taxpayers on value added) on account of the forthcoming deliveries of goods (performance of works, rendering services) or transfers of property rights (held and paid to the budget the amount of this tax on advance payment amounts, partial advance payment on such transactions), to declare the tax deductions on the value added tax in tax period of payment by tax agents of the called tax in the budget.

According to branch of the foreign organization, paragraphs the twenty ninth, thirtieth and thirty first letters of FNS of Russia do not correspond to Item 2 of Article 24, to the paragraph to the second Item 3 of Article 168, to Item 12 of Article 171, to Item 9 of article 172 of the Code in their system interpretation and article 15 of the Federal Law of 26.07.2006 No. 135-FZ "About protection of the competition".

In response on the statement the Federal Tax Service asks to refuse allowance of the application as the letter of FNS of Russia corresponds to provisions of Chapter 21 of the Code and the order of the Government of the Russian Federation of 26.12.2011 No. 1137 "About forms and rules of filling (maintaining) of the documents applied when calculating for the value added tax". The Federal Tax Service claims that calculation of tax amount on value added is made by the tax agents specified in Items 2 and 3 of article 161 of the Code in case of payment of goods (works, services) or at the time of advance transfer (in full or partially), or at the time of payment of the goods (works, services) accepted on accounting. In case of shipment of goods (performance of works, rendering the services) to the advance payment account which are earlier listed by the called tax agents, the moment of determination of tax base at such tax agents does not arise. Therefore the moment of determination of tax base at the tax agents specified in Items 2 and 3 of article 161 of the Code is determined once. In case of application by the mentioned tax agents of the tax deductions on the value added tax from the amounts transferred by them advance payments these tax agents do not fulfill the requirements provided by the subitem 3 of Item 3 of article 170 of the Code, about recovery accepted to deduction of the value added tax and application of the tax deduction in the period of purchase of goods (works, services) realized by sellers on account of earlier listed advance payments.

Also the Federal Tax Service declares the petition for suit abatement based on Item 1 of part 1 of Article 150 of the Arbitral Procedure Code of the Russian Federation as the letter of FNS of Russia does not assign subsidiary duties to the taxpayers who are not provided by the Code is approved with the Ministry of Finance of the Russian Federation (the letter of 24.02.2009 No. 03-07-15/24).

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