Non-resident tax agent p 1 article 161. Tax Code of the Russian Federation

1. When selling goods (works, services), the place of sale of which is the territory Russian Federation, taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of these goods (works, services), including tax.

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

2. Tax base referred to in paragraph 1 this article, is determined by tax agents. At the same time, tax agents are organizations and individual entrepreneurs registered with tax authorities, acquiring goods (works, services) on the territory of the Russian Federation from foreign persons specified in paragraph 1 of this Article, unless otherwise provided by paragraph 3 of Article 174.2 of this Code. Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of tax, regardless of whether they perform the duties of a taxpayer related to the calculation and payment of tax, and other duties established by this Chapter.

3. When provided on the territory of the Russian Federation by authorities state power and management, bodies local government for rent federal property, property of the subjects of the Russian Federation and municipal property the tax base is defined as the sum rent subject to tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, tenants of the said property are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are obliged to calculate, withhold from the income paid to the lessor, and pay the appropriate amount of tax to the budget.

When selling (transferring) on the territory of the Russian Federation state property, not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of the republic within the Russian Federation, the treasury of the territory, region, city of federal significance, autonomous region, autonomous region, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding city, rural settlement or another municipality, the tax base is determined as the amount of income from the sale (transfer) of this property, including tax. In this case, the tax base is determined separately for each operation for the sale (transfer) of the said property. In this case, buyers (recipients) of the said property are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are obliged to calculate by calculation method, withhold from the paid income and pay to the budget the appropriate amount of tax.

4. When selling confiscated property on the territory of the Russian Federation, property sold by a court decision (with the exception of the sale provided for by subparagraph 15 of paragraph 2 of Article 146 of this Code), ownerless valuables, treasures and purchased valuables, as well as valuables that have passed by right of inheritance to the state , the tax base is determined on the basis of the price of the property (values) being sold, determined taking into account the provisions of Article 105.3 of this Code, taking into account excises (for excisable goods). In this case, bodies, organizations or individual entrepreneurs authorized to sell the said property are recognized as tax agents.

4.1. Lost strength. - Federal Law of November 24, 2014 N 366-FZ.

5. When selling goods, transferring property rights performance of work, provision of services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, tax agents are organizations registered with the tax authorities as taxpayers and individual entrepreneurs engaged in entrepreneurial activities with participation in settlements on the basis of contracts of agency, commission contracts or agency contracts with the said foreign persons, unless otherwise provided by paragraph 10 of Article 174.2 of this Code. In this case, the tax base is determined by the tax agent as the cost of such goods (works, services), property rights, taking into account excises (for excisable goods) and without including the amount of tax in them.

5.1. When carried out by Russian carriers on railway transport on the territory of the Russian Federation entrepreneurial activity in the interests of another person on the basis of agency agreements, commission agreements or agency agreements providing for the provision of services for the provision of railway rolling stock and (or) containers (except for the cases provided for by subparagraphs 2.1 and 2.7 of paragraph 1 of Article 164 of this Code), Russian rail carriers. In this case, the tax base is determined by the tax agent as the cost of the specified services without including the amount of tax in it.

6. In case of sale of a ship (civil aircraft) on the territory of the Russian Federation, if within 90 calendar days from the date of transfer of this vessel (civil aircraft) by the taxpayer to the buyer (customer), state registration of the vessel in the Russian International Register of Ships (civil aircraft in the State Register of Civil aircraft Russian Federation) has not been implemented, the tax base is determined by the tax agent as the cost at which this vessel (civil aircraft) was sold to him, or as the cost of the work (services) sold for the construction of this vessel (civil aircraft).

A tax agent is a person who owns a ship (civil aircraft) after 90 calendar days from the date of transfer of the ship (civil aircraft) by the taxpayer to the buyer (customer).

In order to exercise control over the correct calculation and payment of tax, the federal body executive power that performs the functions of providing public services and management of state property in the field air transport (civil aviation), as well as state registration rights to aircraft and transactions with them, on a monthly basis no later than the 10th day of the month following the reporting month, sends to the federal executive body authorized for control and supervision in the field of taxes and fees, information on the inclusion of data on civil aircraft in The State Register of Civil Aircraft of the Russian Federation, as well as information on the exclusion of data on civil aircraft from the State Register of Civil Aircraft of the Russian Federation and the reasons for the exclusion of these data. The composition and procedure for sending such information are approved federal body executive power, performing the functions of providing public services and managing state property in the field of air transport (civil aviation), as well as state registration of rights to aircraft and transactions with them, in agreement with the federal executive body authorized to control and supervise in the field taxes and fees.

6.1. In case of transfer under a lease (leasing) agreement of a civil aircraft on the territory of the Russian Federation, if within 90 calendar days from the date of transfer under a lease (leasing) agreement of a civil aircraft, the state registration of a civil aircraft in the State Register of Civil Aircraft of the Russian Federation is not carried out , the tax base for services for the transfer of civil aircraft is determined by the tax agent as the cost of these services under a lease (leasing) agreement.

For the purposes of applying this paragraph, a tax agent is a lessee (lessee) who received a civil aircraft from the lessor (lessor) under a lease (leasing) agreement after 90 calendar days from the date of transfer of the civil aircraft.

The tax agent is obliged to calculate at the tax rate provided for in paragraph 3 of Article 164 of this Code the appropriate amount of tax and transfer it to the budget.

The provisions of this paragraph shall not apply to the legal relations provided for by subparagraph 20 of Article 150 of this Code.

6.2. When excluding data on a civil aircraft sold in the territory of the Russian Federation from the State Register of Civil Aircraft of the Russian Federation, the tax base is determined by the tax agent as the cost of a civil aircraft for which it was sold, or as the cost of works (services) for the construction of this civil aircraft.

For the purposes of applying this paragraph, a tax agent is a person who owns a civil aircraft as of the date of exclusion from the State Register of Civil Aircraft of the Russian Federation.

The tax agent is obliged to calculate at the tax rate provided for in paragraph 3 of Article 164 of this Code the appropriate amount of tax and transfer it to the budget.

The provisions of this paragraph do not apply to the following cases of exclusion of data on a civil aircraft from the State Register of Civil Aircraft of the Russian Federation:

writing off a civil aircraft or decommissioning it due to the impossibility of using this aircraft for its intended purpose (as a vehicle);

sale of a civil aircraft or transition to other legal grounds ownership rights to it to a foreign state, as well as foreign citizen, a stateless person or a foreign organization, subject to the export of a civil aircraft outside the territory of the Russian Federation.

8. When taxpayers sell on the territory of the Russian Federation (except for taxpayers exempted from the performance of taxpayer duties related to the calculation and payment of tax) raw animal skins, scrap and waste of ferrous and non-ferrous metals, secondary aluminum and its alloys, as well as waste paper, the tax base is determined based on the cost of goods sold, determined in accordance with Article 105.3 of this Code, including tax.

For the purposes of this Code:

Raw animal skins are untreated (undressed) skins taken from animal carcasses, steamed or preserved in order to prevent their spoilage and decomposition (wet-salted or dried), but not subjected to any further processing;

recycled aluminum and its alloys are recycled aluminum and its alloys, classified in accordance with All-Russian classifier products by type of economic activity;

Waste paper is recognized as paper and cardboard waste from production and consumption, rejected and obsolete paper, cardboard, printed products, business papers, including documents with expired storage.

The tax base specified in the first paragraph of this clause is determined by tax agents, unless otherwise provided by this clause. Tax agents are buyers (recipients) of goods specified in the first paragraph of this paragraph, with the exception of individuals who are not individual entrepreneurs. The specified tax agents are obliged to calculate by calculation method and pay to the budget the appropriate amount of tax, regardless of whether they perform the duties of a taxpayer related to the calculation and payment of tax, and other obligations established by this Chapter, or not.

When selling the goods specified in the first paragraph of this clause, taxpayers-sellers exempted from the performance of taxpayer obligations related to the calculation and payment of tax, and persons who are not taxpayers, in the contract, primary accounting document make an appropriate entry or put a mark "Without tax (VAT)".

If it is established that the taxpayer - seller of the goods specified in the first paragraph of this clause has incorrectly entered the mark "Without tax (VAT)" in the contract, the primary accounting document, the obligation to calculate and pay tax shall be assigned to such taxpayer - the seller of goods.

Taxpayers-sellers exempted from the performance of taxpayer obligations related to the calculation and payment of tax, and persons who are not taxpayers, in case of loss of the right to exemption from the performance of taxpayer obligations or to apply special tax regimes in accordance with Chapters 26.1, 26.2, 26.3, 26.5 of this Code shall calculate and pay tax on the transactions of sale of goods specified in the first paragraph of this clause, starting from the period in which the said persons switched to the general taxation regime, until the day onset of circumstances that are the basis for the loss of the right to exemption from the performance of taxpayer duties or to application of appropriate special tax regimes.

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

2. The tax base specified in paragraph 1 of this article is determined by tax agents. At the same time, tax agents are organizations and individual entrepreneurs registered with tax authorities that purchase goods (works, services) in the territory of the Russian Federation from foreign persons specified in paragraph 1 of this article. Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of tax, regardless of whether they perform the duties of a taxpayer related to the calculation and payment of tax, and other duties established by this Chapter.

3. When federal property, property of constituent entities of the Russian Federation and municipal property are leased out on the territory of the Russian Federation by government and administration bodies, local self-government bodies, the tax base is determined as the amount of rent, including tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, tenants of the said property are recognized as tax agents. These persons are obliged to calculate, withhold from the income paid to the lessor, and pay the appropriate amount of tax to the budget.

When selling (transferring) on the territory of the Russian Federation state property not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as of municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal formation, the tax base is determined as the amount of income from the sale (transfer) of this property, taking into account the tax. In this case, the tax base is determined separately for each operation for the sale (transfer) of the said property. In this case, buyers (recipients) of the said property are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are obliged to calculate by calculation method, withhold from the paid income and pay to the budget the appropriate amount of tax.

4. When selling in the territory of the Russian Federation confiscated property, property sold by a court decision (with the exception of the sale provided for in paragraph 4.1 of this article), ownerless valuables, treasures and purchased valuables, as well as valuables that have passed by right of inheritance to the state, the tax base is determined based on the price of the property (values) being sold, determined taking into account the provisions of Article 105.3 of this Code, taking into account excises (for excisable goods). In this case, bodies, organizations or individual entrepreneurs authorized to sell the said property are recognized as tax agents.

4.1. In case of sale in the territory of the Russian Federation of property and (or) property rights of debtors declared bankrupt in accordance with the legislation of the Russian Federation, the tax base is determined as the amount of income from the sale of this property, taking into account tax. In this case, the tax base is determined by the tax agent separately for each transaction for the sale of the said property. In this case, buyers of the said property and (or) property rights are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are obliged to calculate by calculation method, withhold from the paid income and pay to the budget the appropriate amount of tax.

6. If, within forty-five calendar days from the date of transfer of ownership of the ship from the taxpayer to the customer, the registration of the ship in the Russian International Register of Ships is not carried out, the tax base is determined by the tax agent as the cost at which this ship was sold to the customer, from taking into account tax.

In this case, the tax agent is the person who owns the ship after forty-five calendar days from the date of such transfer of ownership.

The tax agent is obliged to calculate at the tax rate provided for in paragraph 3 of Article 164 of this Code the appropriate amount of tax and transfer it to the budget.

Text updated: 01/29/2020

1. 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 determined as the amount of income from the sale of these goods (works, services) subject to tax.
The tax base is determined separately for each transaction for the sale of goods (works, services) on the territory of the Russian Federation, taking into account this chapter.
2. The tax base specified in paragraph 1 of this article is determined by tax agents. At the same time, tax agents are recognized as organizations and individual entrepreneurs registered with tax authorities that purchase goods (works, services) in the territory of the Russian Federation from foreign persons specified in paragraph 1 of this article, unless otherwise provided by paragraph 3 of Article 174.2 of this Code. Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of tax, regardless of whether they perform the duties of a taxpayer related to the calculation and payment of tax, and other duties established by this chapter.
(as amended by Federal Laws No. 166-FZ of December 29, 2000, No. 57-FZ of May 29, 2002, No. 244-FZ of July 3, 2016, No. 335-FZ of November 27, 2017)
3. When federal property, property of constituent entities of the Russian Federation and municipal property are leased out on the territory of the Russian Federation by government and administration bodies, local self-government bodies, the tax base is determined as the amount of rent, including tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, tenants of the said property are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are obliged to calculate, withhold from the income paid to the lessor, and pay the appropriate amount of tax to the budget.
(as amended by Federal Laws No. 57-FZ dated May 29, 2002, No. 83-FZ dated May 8, 2010, No. 330-FZ dated November 21, 2011, No. 424-FZ dated November 27, 2018)
When selling (transferring) on the territory of the Russian Federation state property not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as of municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal formation, the tax base is determined as the amount of income from the sale (transfer) of this property, taking into account the tax. In this case, the tax base is determined separately for each operation for the sale (transfer) of the said property. In this case, buyers (recipients) of the said property are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are obliged to calculate by calculation method, withhold from the paid income and pay to the budget the appropriate amount of tax.
(paragraph introduced by Federal Law No. 224-FZ of November 26, 2008)
4. When selling confiscated property on the territory of the Russian Federation, property sold by a court decision (with the exception of the sale provided for by subparagraph 15 of paragraph 2 of Article 146 of this Code), ownerless valuables, treasures and purchased valuables, as well as valuables that have passed by right of inheritance to the state , the tax base is determined on the basis of the price of the property (values) being sold, determined taking into account the provisions of Article 105.3 of this Code, taking into account excises (for excisable goods). In this case, bodies, organizations or individual entrepreneurs authorized to sell the said property are recognized as tax agents.
(Clause 4 was introduced by Federal Law No. 57-FZ of May 29, 2002, as amended by Federal Laws No. 117-FZ of July 7, 2003, No. 119-FZ of July 22, 2005, No. 224-FZ of November 26, 2008, of July 18 .2011 N 227-FZ, dated 07/19/2011 N 245-FZ, dated 11/24/2014 N 366-FZ)
4.1. Lost strength. - Federal Law of November 24, 2014 N 366-FZ.
5. When selling goods, transferring property rights, performing work, rendering services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, organizations and individual entrepreneurs registered with the tax authorities as taxpayers shall be recognized as tax agents, carrying out entrepreneurial activities with participation in settlements on the basis of agency agreements, commission agreements or agency agreements with the said foreign persons, unless otherwise provided by paragraph 10 of Article 174.2 of this Code. In this case, the tax base is determined by the tax agent as the cost of such goods (works, services), property rights, taking into account excises (for excisable goods) and without including the amount of tax in them.
(As amended by the Federal Laws of November 26, 2008 N 224-FZ, of July 3, 2016 N 244-FZ)
5.1. When Russian carriers in railway transport on the territory of the Russian Federation carry out business activities in the interests of another person on the basis of agency agreements, commission agreements or agency agreements providing for the provision of services for the provision of railway rolling stock and (or) containers (except for the cases provided for in subparagraphs 2.1 and 2.7 of paragraph 1 of Article 164 of this Code), Russian railway carriers are recognized as tax agents. In this case, the tax base is determined by the tax agent as the cost of the specified services without including the amount of tax in it.
(Clause 5.1 was introduced by Federal Law No. 302-FZ of August 3, 2018)
6. In case of sale of a ship (civil aircraft) on the territory of the Russian Federation, if within 90 calendar days from the date of transfer of this ship (civil aircraft) by the taxpayer to the buyer (customer), the state registration of the ship in the Russian International Register of Ships (civil aircraft in State Register of Civil Aircraft of the Russian Federation) is not carried out, the tax base is determined by the tax agent as the cost at which this vessel (civil aircraft) was sold to him, or as the cost of the work (services) sold for the construction of this vessel (civil aircraft).

A tax agent is a person who owns a ship (civil aircraft) after 90 calendar days from the date of transfer of the ship (civil aircraft) by the taxpayer to the buyer (customer).
(in ed. federal law dated September 29, 2019 N 324-FZ)

In order to exercise control over the correctness of the calculation and payment of tax, the federal executive body that performs the functions of providing public services and managing state property in the field of air transport (civil aviation), as well as state registration of rights to aircraft and transactions with them, on a monthly basis no later than On the 10th day of the month following the reporting month, sends to the federal executive body authorized for control and supervision in the field of taxes and fees, information on the inclusion of data on civil aircraft in the State Register of Civil Aircraft of the Russian Federation, as well as information on exclusion of data on civil aircraft from the State Register of Civil Aircraft of the Russian Federation and the reasons for exclusion of these data. The composition and procedure for sending such information are approved by the federal executive body, which performs the functions of providing public services and managing state property in the field of air transport (civil aviation), as well as state registration of rights to aircraft and transactions with them, in agreement with the federal executive body. authorities authorized to control and supervise in the field of taxes and fees.
(the paragraph was introduced by Federal Law No. 324-FZ of September 29, 2019)
(Clause 6 as amended by Federal Law No. 305-FZ of November 7, 2011)
6.1. In case of transfer under a lease (leasing) agreement of a civil aircraft on the territory of the Russian Federation, if within 90 calendar days from the date of transfer under a lease (leasing) agreement of a civil aircraft, the state registration of a civil aircraft in the State Register of Civil Aircraft of the Russian Federation is not carried out , the tax base for services for the transfer of civil aircraft is determined by the tax agent as the cost of these services under a lease (leasing) agreement.
For the purposes of applying this paragraph, a tax agent is a lessee (lessee) who received a civil aircraft from the lessor (lessor) under a lease (leasing) agreement after 90 calendar days from the date of transfer of the civil aircraft.
The tax agent is obliged to calculate at the tax rate provided for in paragraph 3 of Article 164 of this Code the appropriate amount of tax and transfer it to the budget.
The provisions of this paragraph shall not apply to the legal relations provided for by subparagraph 20 of Article 150 of this Code.
(Clause 6.1 was introduced by Federal Law No. 324-FZ of September 29, 2019)
6.2. When excluding data on a civil aircraft sold in the territory of the Russian Federation from the State Register of Civil Aircraft of the Russian Federation, the tax base is determined by the tax agent as the cost of a civil aircraft for which it was sold, or as the cost of works (services) for the construction of this civil aircraft.
For the purposes of applying this paragraph, a tax agent is a person who owns a civil aircraft as of the date of exclusion from the State Register of Civil Aircraft of the Russian Federation.
The tax agent is obliged to calculate at the tax rate provided for in paragraph 3 of Article 164 of this Code the appropriate amount of tax and transfer it to the budget.
The provisions of this paragraph do not apply to the following cases of exclusion of data on a civil aircraft from the State Register of Civil Aircraft of the Russian Federation:
writing off a civil aircraft or decommissioning it due to the impossibility of using this aircraft for its intended purpose (as a vehicle);
the sale of a civil aircraft or the transfer, on other legal grounds, of the right of ownership to it to a foreign state, as well as to a foreign citizen, a stateless person or a foreign organization, provided that the civil aircraft is taken out of the territory of the Russian Federation.
(Clause 6.2 was introduced by Federal Law No. 324-FZ of September 29, 2019)
7. Has become invalid since January 1, 2017. - Federal Law of July 23, 2013 N 216-FZ.
8. When taxpayers sell on the territory of the Russian Federation (except for taxpayers exempted from the performance of taxpayer duties related to the calculation and payment of tax) raw animal skins, scrap and waste of ferrous and non-ferrous metals, secondary aluminum and its alloys, as well as waste paper, the tax base is determined based on the cost of goods sold, determined in accordance with Article 105.3 of this Code, including tax.
For the purposes of this Code:
Raw animal skins are untreated (undressed) skins taken from animal carcasses, steamed or preserved in order to prevent their spoilage and decomposition (wet-salted or dried), but not subjected to any further processing;
recycled aluminum and its alloys are recycled aluminum and its alloys, classified in accordance with the All-Russian Classifier of Products by Type of Economic Activity;
Waste paper is recognized as paper and cardboard waste from production and consumption, rejected and obsolete paper, cardboard, printed products, business papers, including documents with an expired shelf life.
The tax base specified in the first paragraph of this clause is determined by tax agents, unless otherwise provided by this clause. Tax agents are buyers (recipients) of goods specified in the first paragraph of this paragraph, with the exception of individuals who are not individual entrepreneurs. The specified tax agents are obliged to calculate by calculation method and pay to the budget the appropriate amount of tax, regardless of whether they perform the duties of a taxpayer related to the calculation and payment of tax, and other obligations established by this Chapter, or not.
When selling the goods specified in paragraph one of this clause, taxpayers-sellers exempted from the performance of taxpayer duties related to the calculation and payment of tax, and persons who are not taxpayers, in the contract, the primary accounting document, make an appropriate entry or mark "Without tax (VAT)".
If it is established that the taxpayer - seller of the goods specified in the first paragraph of this clause has incorrectly entered the mark "Without tax (VAT)" in the contract, the primary accounting document, the obligation to calculate and pay tax shall be assigned to such taxpayer - the seller of goods.
Taxpayers-sellers exempted from the performance of taxpayer obligations related to the calculation and payment of tax, and persons who are not taxpayers, in case of loss of the right to exemption from the performance of taxpayer obligations or to apply special tax regimes in accordance with Chapters 26.1, 26.2, 26.3, 26.5 of this Code shall calculate and pay tax on the transactions of sale of goods specified in the first paragraph of this clause, starting from the period in which the said persons switched to the general taxation regime, until the day onset of circumstances that are the basis for the loss of the right to exemption from the performance of taxpayer duties or to application of appropriate special tax regimes.
(Clause 8 as amended by Federal Law No. 424-FZ of November 27, 2018)

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

2. The tax base specified in paragraph 1 of this article is determined by tax agents. At the same time, tax agents are organizations and individual entrepreneurs registered with tax authorities that purchase goods (works, services) in the territory of the Russian Federation from foreign persons specified in paragraph 1 of this article. Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of tax, regardless of whether they fulfill the taxpayer's obligations related to the calculation and payment of tax, and other obligations established by this chapter (paragraph as amended, entered into force on 1 January 2001 by Federal Law No. 166-FZ of December 29, 2000; as amended by Federal Law No. 57-FZ of May 29, 2002; the effect applies to relations that arose from January 1, 2002.

When selling (transferring) on the territory of the Russian Federation state property not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as of municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal formation, the tax base is determined as the amount of income from the sale (transfer) of this property, taking into account the tax. In this case, the tax base is determined separately for each operation for the sale (transfer) of the said property. In this case, buyers (recipients) of the said property are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are required to calculate by calculation, withhold from the income paid and pay the appropriate amount of tax to the budget (the paragraph was additionally included from January 1, 2009 by Federal Law No. 224-FZ of November 26, 2008).

The provisions of paragraph 3 of this article (as amended by Federal Law No. 224-FZ of November 26, 2008) shall apply when goods are shipped (works are performed, services are rendered) and when property rights are transferred starting from January 1, 2009 - see paragraph 11 Article 9 of the Federal Law of November 26, 2008 N 224-FZ.

____________________________________________________________________
4. When selling confiscated property on the territory of the Russian Federation, property sold by a court decision (with the exception of the sale provided for by subparagraph 15 of paragraph 2 of Article 146 of this Code), ownerless valuables, treasures and purchased valuables, as well as valuables that have passed by right of inheritance to the state , the tax base is determined on the basis of the price of the property (values) being sold, determined taking into account the provisions of Article 105.3 of this Code, taking into account excises (for excisable goods). In this case, bodies, organizations or individual entrepreneurs authorized to sell the said property are recognized as tax agents.

(The clause was additionally included from June 30, 2002 by the Federal Law of May 29, 2002 N 57-FZ, the effect applies to relations that arose from January 1, 2002; as amended by the Federal Law of July 7, 2003, entered into force on January 1, 2004 of the year N 117-FZ; as amended by Federal Law of July 22, 2005 N 119-FZ; supplemented from January 1, 2009 by Federal Law of November 26, 2008 N 224-FZ; as amended by Federal Law No. 245-FZ of July 19, 2011; as amended by Federal Law No. 227-FZ of July 18, 2011; as amended by Federal Law No. 227-FZ of July 18, 2011; January 1, 2015 Federal Law of November 24, 2014 N 366-FZ.

____________________________________________________________________
The provisions of paragraph 4 of this article (as amended by Federal Law No. 224-FZ of November 26, 2008) shall apply when goods are shipped (works are performed, services are rendered) and when property rights are transferred starting from January 1, 2009 - see paragraph 11 Article 9 of the Federal Law of November 26, 2008 N 224-FZ.

____________________________________________________________________
4.1. The item is additionally included from October 1, 2011 by the Federal Law of July 19, 2011 N 245-FZ; invalidated from January 1, 2015 - Federal Law of November 24, 2014 N 366-FZ.

5. When selling goods, transferring property rights, performing work, rendering services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, organizations and individual entrepreneurs registered with the tax authorities as taxpayers shall be recognized as tax agents, carrying out entrepreneurial activities with participation in settlements on the basis of agency agreements, commission agreements or agency agreements with the specified foreign persons. In this case, the tax base is determined by the tax agent as the cost of such goods (works, services), property rights, taking into account excises (for excisable goods) and without including the amount of tax in them (the clause was additionally included from January 1, 2006 by the Federal Law of July 22, 2005 No. 119-FZ, as amended by Federal Law No. 224-FZ of November 26, 2008, effective from January 1, 2009.

The provisions of clause 5 of this article (as amended by Federal Law No. 224-FZ of November 26, 2008) shall apply when goods are shipped (works are performed, services are rendered) and when property rights are transferred starting from January 1, 2009 - see clause 11 Article 9 of the Federal Law of November 26, 2008 N 224-FZ.

____________________________________________________________________
6. If, within forty-five calendar days from the date of transfer of ownership of the ship from the taxpayer to the customer, the registration of the ship in the Russian International Register of Ships is not carried out, the tax base is determined by the tax agent as the cost at which this ship was sold to the customer, from taking into account tax.

In this case, the tax agent is the person who owns the ship after forty-five calendar days from the date of such transfer of ownership.

The tax agent is obliged to calculate at the tax rate provided for in paragraph 3 of Article 164 of this Code the appropriate amount of tax and transfer it to the budget.

(The clause was additionally included from January 23, 2006 by Federal Law No. 168-FZ of December 20, 2005; as amended by Federal Law No. 305-FZ of November 7, 2011.

7. For the purposes of this article, organizations that are foreign organizers of the 22 Olympic Winter Games and the 11 Paralympic Winter Winter Games and 11 Paralympic Winter Games 2014 in Sochi in accordance with Article 3 of the Federal Law of December 1, 2007 N 310-FZ "On the organization and holding of 22 Olympic Winter Games and 11 Paralympic Winter Games 2014 in Sochi, development of the city of Sochi as a mountain climatic resort and making changes to certain legislative acts Russian Federation", foreign marketing partners of the International Olympic Committee, including official broadcasters, in accordance with Article 3.1 of the said Federal Law, and branches, representative offices in the Russian Federation of foreign organizations that are marketing partners of the International Olympic Committee, including official broadcasters , in accordance with Article 3.1 of the said Federal Law.

(The paragraph is additionally included from October 1, 2013 by the Federal Law of July 23, 2013 N 216-FZ)
____________________________________________________________________
The provisions of paragraph 7 of this article (as amended by Federal Law No. 216-FZ of July 23, 2013) shall apply until January 1, 2017 - see paragraph 3 of Article 3 of Federal Law No. 216-FZ of July 23, 2013.

____________________________________________________________________

Commentary on Article 161 of the Tax Code of the Russian Federation

In accordance with Article 24 of the Tax Code of the Russian Federation, tax agents are persons who are responsible for calculating, withholding from the taxpayer and transferring tax to the budget.

The duties of tax agents, among others, must be performed by organizations and individual entrepreneurs that are not VAT payers (for example, those transferred to the payment of a single tax on imputed income, taxpayers applying a simplified taxation system, taxpayers exempt from tax on the basis of Article 145 of the Tax Code of the Russian Federation).

Article 161 of the Tax Code of the Russian Federation contains a list of tax agents who are obliged to calculate, withhold from the taxpayer and pay to the budget amounts of tax in the amount of a certain tax base. Tax agents include:
- organizations and individual entrepreneurs registered with the tax authorities who purchase goods (works, services) on the territory of the Russian Federation from foreign persons specified in paragraph 1 of Article 161 of the Tax Code of the Russian Federation;
- bodies of state power and administration and bodies of local self-government when leasing out federal property, as well as property of constituent entities of the Russian Federation and municipal property;
- state organizations in the event of the sale on the territory of the Russian Federation of confiscated property, ownerless valuables, treasures and purchased valuables, as well as valuables that have passed by right of inheritance to the state;
- organizations and individual entrepreneurs engaged in entrepreneurial activities with participation in settlements on the basis of agency agreements, commission agreements or agency agreements with foreign persons who are not tax registered as taxpayers;
- persons who own the vessel at the time of its exclusion from the Russian International Register of Ships, if the vessel is excluded from the specified register, or if, within 45 days from the date of transfer of ownership of the vessel from the taxpayer to the customer, the registration of the vessel in the Russian International Register of Ships not carried out, the persons who own the ship after 45 days from the date of such transfer of ownership.

According to paragraph 5 of Article 161 of the Tax Code of the Russian Federation, when goods of foreign persons that are not registered with the tax authorities as taxpayers are sold in Russia, organizations and individual entrepreneurs participating in settlements on the basis of agency agreements, commission agreements or agency agreements with specified foreign persons. In this case, the tax base is determined by the tax agent as the cost of such goods, including excises and without including the amount of VAT in them.

Thus, commission agents, attorneys and agents must charge VAT on top of the price of goods sold by agreement with a foreign seller. This tax is deductible by the buyer, to whom the intermediary is obliged to issue an invoice (clause 3 of article 171 and clause 3 of article 168 of the Tax Code of the Russian Federation).

Tax agents who sell confiscated property, treasures, ownerless and purchased valuables, as well as property that has passed by right of inheritance to the state, must also charge VAT in excess of the sale price. This is indicated in paragraph 4 of Article 161 of the Tax Code of the Russian Federation.

Determination of the tax base when purchasing goods
(works, services) from a foreign organization
When goods (works, services) are sold on the territory of the Russian Federation by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of these goods (works, services), including VAT.

Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of VAT, regardless of whether they fulfill the taxpayer's obligations related to the calculation and payment of VAT, and other obligations established by Chapter 21 of the Tax Code of the Russian Federation.

Tax agents are required to submit a VAT return to the tax authorities at their place of registration no later than the 20th day of the month following the expired tax period, and pay the appropriate amount of VAT deducted from the funds to be transferred to the taxpayer no later than the above date.

Starting from January 1, 2004, in accordance with Federal Law No. 163-FZ of December 8, 2003 "On Amendments to Certain Legislative Acts of the Russian Federation on Taxes and Fees" when works (services) are sold in the territory of the Russian Federation by foreign taxpayers by persons who are not registered with the tax authorities as taxpayers, the payment of VAT to the budget is made by tax agents simultaneously with the payment (transfer) of funds to such taxpayers.

The amount of tax is determined at the estimated rates of 10/110% or 18/118% (clause 4, article 164 of the Tax Code of the Russian Federation).

Determination of the tax base for rent
state or municipal property
When federal property, property of constituent entities of the Russian Federation and municipal property are leased on the territory of the Russian Federation by state authorities and administrations and local self-government bodies, the tax base is determined on the basis of paragraph 3 of Article 161 of the Tax Code of the Russian Federation as the amount of rent, including VAT. In this case, the tax base is established by the tax agent separately for each leased property. In this case, tenants of the above property are recognized as tax agents, who are obliged to calculate, withhold from the income paid to the lessor, and pay the appropriate amount of tax to the budget.

Based on the above norms of the Tax Code of the Russian Federation, the amount of rent specified in the contract with the state authority and government or local government should include the amount of VAT. When transferring rent to the lessor, the lessee, who is a tax agent, from the total amount of rent, including VAT, must calculate at the tax rate in force on the date the expenses are incurred, withhold and pay the appropriate amount of VAT to the budget.

According to Article 608 Civil Code In the Russian Federation, lessors can also be persons authorized by law or the owner to lease property.

In this regard, it should be taken into account that when leasing federal property, the lessee is recognized as a tax agent only if the service for providing such property for rent is provided by a state authority and management body, that is, the lessor is a state authority and management body, or the landlords are a state authority and management and balance holder this property which is not a body of state power and administration.

If the lessors of federal property are persons authorized by law or the owner to lease property (in particular, federal state unitary enterprises, educational institutions), and these authorized persons are not bodies of state power and administration, then lessors in in due course calculate and pay to the budget the amount of VAT when rendering the service of leasing federal property.

If the organization has separate divisions operating on leased premises government agencies or local government areas, then the parent organization acts as a tax agent.

The amount of tax to be withheld and transferred to the budget by the tenant is determined at the estimated rates of 10/110% or 18/118% (clause 4 of article 164 of the Tax Code of the Russian Federation).

Consultations and comments of lawyers on Article 161 of the Tax Code of the Russian Federation

If you still have questions on Article 161 of the Tax Code of the Russian Federation and you want to be sure that the information provided is up to date, you can consult the lawyers of our website.

You can ask a question by phone or on the website. Initial consultations are free of charge from 9:00 to 21:00 Moscow time daily. Questions received between 21:00 and 09:00 will be processed the next day.

ST 161 Tax Code of the Russian Federation.

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

2. The tax base specified in paragraph 1 of this article is determined by tax agents. At the same time, tax agents are recognized as organizations and individual entrepreneurs registered with tax authorities that purchase goods (works, services) in the territory of the Russian Federation from foreign persons specified in paragraph 1 of this article, unless otherwise provided by paragraph 3 of Article 174.2 of this Code. Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of tax, regardless of whether they perform the duties of a taxpayer related to the calculation and payment of tax, and other duties established by this chapter.

3. When federal property, property of constituent entities of the Russian Federation and municipal property are leased out on the territory of the Russian Federation by government and administration bodies, local self-government bodies, the tax base is determined as the amount of rent, including tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, tenants of the said property are recognized as tax agents, with the exception of individuals who are not individual entrepreneurs. These persons are obliged to calculate, withhold from the income paid to the lessor, and pay the appropriate amount of tax to the budget.

5.1. When Russian carriers in railway transport on the territory of the Russian Federation carry out business activities in the interests of another person on the basis of agency agreements, commission agreements or agency agreements providing for the provision of services for the provision of railway rolling stock and (or) containers (except for the cases provided for in subparagraphs 2.1 and 2.7 of paragraph 1 of Article 164 of this Code), Russian railway carriers are recognized as tax agents. In this case, the tax base is determined by the tax agent as the cost of the specified services without including the amount of tax in it.

In this case, the tax agent is the person who owns the ship after forty-five calendar days from the date of such transfer of ownership.

The tax agent is obliged to calculate the appropriate amount of tax at the tax rate provided for and transfer it to the budget.

For the purposes of this Code:

recycled aluminum and its alloys are recycled aluminum and its alloys, classified in accordance with the All-Russian Classifier of Products by Type of Economic Activity;

When selling the goods specified in paragraph one of this clause, taxpayers-sellers exempted from the performance of taxpayer duties related to the calculation and payment of tax, and persons who are not taxpayers, in the contract, the primary accounting document, make an appropriate entry or mark "Without tax (VAT)".

Commentary on Art. 161 of the Tax Code

Article 19 of the Tax Code of the Russian Federation provides that tax agents are persons who are responsible for calculating, withholding from the taxpayer and transferring taxes to the appropriate budget.

In accordance with paragraph 1 of Article 24 of the Tax Code of the Russian Federation, tax agents are recognized as persons who, in accordance with the Tax Code of the Russian Federation, are responsible for calculating, withholding and transferring taxes to the budget.

It follows from paragraph 2 of Article 24 of the Tax Code of the Russian Federation that tax agents have the same rights as taxpayers, unless otherwise provided by the Tax Code of the Russian Federation.

Paragraph 3 of Article 24 of the Tax Code of the Russian Federation provides that tax agents are required to correctly and timely calculate, withhold from the funds paid to taxpayers, and transfer relevant taxes to the budgets (off-budget funds).

According to paragraph 4 of Article 24 of the Tax Code of the Russian Federation, tax agents transfer withheld taxes in the manner prescribed for the payment of tax by a taxpayer.

Article 161 of the Tax Code of the Russian Federation indicates cases when a taxpayer must fulfill the duties of a tax agent - to calculate and pay the amount of VAT to the budget.

So, according to paragraph 1 of Article 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, taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of goods (works, services) including tax.

In this case, the tax base should be determined by tax agents - organizations and individual entrepreneurs registered with the tax authorities.

Tax agents can be not only organizations and individual entrepreneurs who are obligated to pay VAT to the budget, but also persons exempted from such an obligation (for example, those who received exemption on the basis of Article 145 of the Tax Code of the Russian Federation or apply special tax regimes - STS, UTII or ESHN).

Thus, the first case in which organizations and individual entrepreneurs must act as a tax agent is the acquisition of goods (works, services) on the territory of the Russian Federation from foreign persons who are not payers of the "Russian" VAT.

A foreign contractor - a counterparty of a Russian organization is not registered with the tax authorities of the Russian Federation or has a representative office on the territory of the Russian Federation, but in this case, both the conclusion of the contract and its execution for installation and commissioning are carried out by the head office of the foreign contractor located abroad.

Respectively, Russian organization, purchasing in the territory of the Russian Federation from the above foreign contractors installation works, as well as commissioning works, is a tax agent obliged to calculate, withhold and pay to the budget the appropriate amount of VAT on such operations.

(Based on the letter of the Federal Tax Service of Russia dated May 24, 2013 N SA-4-9 / 9466.)

At the same time, another duty may be imposed on the tax agent: if the contract with the taxpayer - a foreign person selling the specified goods (works, services) does not provide for the amount of value added tax payable in Russian budget, the Russian taxpayer should independently determine the tax base for tax purposes, that is, increase the cost of purchased goods (works, services) by the amount of tax. Accordingly, the amount of tax calculated and paid to the budget in this case is essentially the amount of tax deducted from the possible income of the taxpayer - foreign person(letter of the Ministry of Finance of Russia dated 05.06.2013 N 03-03-06/2/20797).

official position.

So, in the letter of the Federal Tax Service of Russia dated June 23, 2014 N GD-4-3 / [email protected] considered the issue of calculating VAT when a Russian organization sells goods (services) through separate subdivisions established in the Republic of Crimea and the city of Sevastopol after 03/18/2014, as well as on the Russian organization performing the functions of a tax agent for VAT upon purchase from a payer of Ukraine after 03/18/2014 services for the lease of real estate located in the Republic of Crimea. By this issue the following explanation is given.

According to paragraphs 1 and 2 of Article 161 of the Tax Code of the Russian Federation, when a foreign person who is not registered with the Russian tax authorities sells services, the place of sale of which is the territory of the Russian Federation, VAT is calculated and paid to the Russian budget by the tax agent purchasing these services from a foreign person.

Thus, a Russian organization acquiring from a payer in Ukraine after March 18, 2014 services for the lease of real estate located on the territory of the Republic of Crimea is a tax agent obliged to calculate and pay the corresponding amount of VAT to the budget of the Russian Federation. At the same time, on the basis of paragraph 4 of Article 164 of the Tax Code of the Russian Federation, VAT is calculated by a tax agent at a tax rate of 18/118 percent.

Russian organization (LLC) acquiring from the payer of Ukraine after March 18, 2014 real estate, located in the city of Simferopol and the city of Sevastopol, is a tax agent obliged to calculate and pay the appropriate amount of VAT to the budget of the Russian Federation. At the same time, the specified taxpayer has the right to deductions of the amounts of tax paid to the budget in the manner provided for in articles 171 and 172 of the Tax Code of the Russian Federation. The authorities pay special attention to this aspect in their clarifications. (See, for example, Letter No. GD-19-3/75 of May 15, 2014 of the Federal Tax Service of Russia.)

An example from judicial practice.

By the decision of the Arbitration Court of the Central District dated September 29, 2014 in case N A48-4592 / 2013, the requirement for obligation tax authority refund VAT.

The court explained that the tax base specified in paragraph 1 of Article 161 of the Tax Code of the Russian Federation is determined by tax agents. At the same time, tax agents are organizations and individual entrepreneurs registered with tax authorities that purchase goods (works, services) in the territory of the Russian Federation from foreign persons specified in paragraph 1 of Article 161 of the Tax Code of the Russian Federation. Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of tax, regardless of whether they fulfill the taxpayer's obligations related to the calculation and payment of tax, and other obligations established by Chapter 21 of the Tax Code of the Russian Federation.

In the event of the acquisition of goods (works, services) from a foreign person on the territory of the Russian Federation, the obligation to pay value added tax to the budget shall be borne by the purchaser of such goods (works, services). Specified person, recognized as a tax agent, is obliged to calculate and withhold tax at the source of payments - a foreign person.

Paragraph 2 of the commented article establishes an important rule according to which the VAT tax base specified in paragraph 1 of Article 161 of the Tax Code of the Russian Federation is determined by tax agents. At the same time, tax agents are organizations and individual entrepreneurs registered with tax authorities that purchase goods (works, services) in the territory of the Russian Federation from foreign persons specified in paragraph 1 of the commented article. Tax agents are obliged to calculate, withhold from the taxpayer and pay to the budget the appropriate amount of tax, regardless of whether they fulfill the taxpayer's obligations related to the calculation and payment of tax, and other obligations established by Chapter 21 of the Tax Code of the Russian Federation.

official position.

The letter of the Ministry of Finance of Russia dated January 23, 2015 N 03-07-08 / 1947 considered the issue of recognizing an organization applying the simplified tax system as a VAT tax agent when acquiring personnel services from a foreign organization, if the personnel works in the Russian Federation; on the accounting of expenses for services for the provision of personnel when calculating the tax paid when applying the simplified tax system. On this issue, the Department of the Ministry of Finance of Russia gave the following explanation.

It should be noted that on the basis of clause 5 of article 346.11 of chapter 26.2 "Simplified taxation system" of the Tax Code of the Russian Federation, organizations using such a taxation system are prevented from performing the duties of tax agents, provided for by the Code, are not released.

Thus, a Russian organization applying the simplified taxation system, acquiring the above services from a foreign organization, is recognized as a tax agent for the purpose of applying the value added tax and is obliged to calculate and pay the amount of this tax to the budget.

When transferring funds to a foreign person by a bar association, which is a lawyer’s representative for settlements with third parties, in payment for the lawyer’s purchases from him legal services value added tax should not be calculated and withheld. Official bodies also pay special attention to this aspect, giving clarifications on the procedure for applying paragraph 2 of the commented article. (See, for example, Letter No. 03-07-08/60145 of the Russian Ministry of Finance dated November 26, 2014.)

official position.

The letter of the Ministry of Finance of Russia dated March 24, 2014 N 03-07-14 / 12827 considered the issue of paying VAT as a tax agent for an individual entrepreneur applying the simplified tax system when purchasing from a foreign person work on the manufacture of goods carried out outside the Russian Federation.

The said letter states that when purchasing work on the manufacture of goods carried out outside the territory of the Russian Federation, an individual entrepreneur, including those using a simplified taxation system, should not pay value added tax as a tax agent.

At the same time, the Department of the Ministry of Finance of Russia draws attention to the fact that, on the basis of subparagraph 4 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, products manufactured using specified goods and imported into the Russian Federation by an individual entrepreneur using the simplified taxation system is subject to value added tax in accordance with the generally established procedure.

The remaining cases are considered in paragraphs 3 - 6 of Article 161 of the Tax Code of the Russian Federation.

Attention!

Paragraph 3 of Article 161 of the Tax Code of the Russian Federation establishes the specifics of paying value added tax when federal property, property of constituent entities of the Russian Federation and municipal property is leased on the territory of the Russian Federation by state authorities and administrations and local governments, as well as when selling (transferring) on the territory Russian Federation property not assigned to state enterprises and institutions, constituting the treasury.

When exercising the rights to conclude contracts for the placement of advertising structures on land plots owned or disposed of by a municipality, the specifics of the payment of value added tax by the Tax Code of the Russian Federation are not established.

Given the above, in the implementation of the above operations, the taxpayers of value added tax are local governments (letter of the Ministry of Finance of Russia dated July 13, 2012 N 03-07-11 / 184).

It should be noted that the amounts of interest paid by the buyer - a tax agent when purchasing property of the treasury in installments, are not included in the tax base for value added tax and are not subject to taxation by this tax. This aspect is also emphasized by the authorities in their clarifications. (See, for example, the letter of the Federal Tax Service of Russia dated 08.07.2014 N GD-4-3 / [email protected]"On sending a letter from the Ministry of Finance of Russia" (together with a letter from the Ministry of Finance of Russia dated 17.06.2014 N 03-07-15 / 28722)).

In the case of the purchase of property rental services that are not subject to value added taxation, provided by state institutions that are not local governments, tenants of this property do not pay value added tax as a tax agent.

(See: letter of the Federal Tax Service of Russia dated February 16, 2015 N GD-4-3 / [email protected])

Attention!

As noted by the financial department in a letter of 01.02.2011 N 03-07-11 / 21, when exercising the rights to conclude a lease agreement land plots, which are in state and municipal ownership, the features of the payment of value added tax by the Tax Code of the Russian Federation are not established.

Paragraph 2 of Article 38 of the Land Code of the Russian Federation establishes that, as a seller of the right to conclude a lease agreement land plot acts as an executive body of state power or a self-government body.

Taking into account the above, when carrying out the above operations, the executive bodies of state power or local governments must pay value added tax to the budget.

According to the conclusions of the Federal Antimonopoly Service of the Moscow District, set out in Decree N A41-26569/12 dated 05.20.2013, on the basis of paragraph 3 of Article 161 of the Tax Code of the Russian Federation, an organization cannot be recognized as a tax agent for the payment of value added tax in connection with the acquisition at auction of the right to conclude lease agreements. Monetary funds paid for obtaining the right to conclude a lease agreement for a land plot, rent are not; when carrying out the above operations, the taxpayers of value added tax are the executive bodies of state power or bodies of local self-government.

According to the position of the Federal Antimonopoly Service of the West Siberian District, set out in the Decree of November 9, 2011 N A70-218 / 2011 (Determination of the Supreme Arbitration Court of the Russian Federation of March 30, 2012 N VAC-2949/12 refused to transfer the case N A70-218 / 2011 to the Presidium of the Supreme Arbitration Court of the Russian Federation for revision in the order of supervision of this Decree), on the basis of the norms of Article 161 of the Tax Code of the Russian Federation arbitration courts it was concluded that in the transaction of acquiring the right to conclude a lease agreement, the organization is not a tax agent for paying VAT to the budget. The indicated withdrawal of ships complies with the standards current legislation, since paragraph 3 of Article 161 of the Tax Code of the Russian Federation provides for the inclusion in the tax base of the rent for each leased property. Proceeds from the sale of the right to enter into a lease agreement are not included in the rent. The amount and procedure for paying the rent is established by the lease agreement for the land plot. In this regard, the organization does not have the right to deduct on the basis of the norms of paragraph 3 of Article 171 of the Tax Code of the Russian Federation, since the organization is not a tax agent, the transfer of VAT to the budget by the organization as a tax agent was made without legal grounds.

official position.

The letter of the Ministry of Finance of Russia dated December 17, 2014 N 03-07-14/65191 addressed the issue of paying VAT on the purchase of services for the lease of municipal property provided by a state institution. The Department of the Ministry of Finance of Russia on this issue indicated that services provided by state institutions, including the provision of municipal property for rent, are not subject to value added taxation. In the case of the purchase of services for the lease of municipal property provided by state institutions that are not subject to value added taxation, tenants do not pay value added tax as a tax agent.

official position.

Letter No. 03-07-13/1/41708 of the Russian Ministry of Finance dated 20.08.2014 contains a response to a request for VAT taxation of services for the sublease of premises located in Baikonur by the administration of Baikonur to a Russian organization. The Ministry of Finance of Russia gave the following important clarifications regarding this issue.

The special status of the city of Baikonur does not change its territorial affiliation, but does not abolish the taxation of value added tax on entrepreneurial activities carried out in the city. Therefore, operations for the sale of goods (works, services) in the territory of Baikonur are subject to taxation by value added tax. At the same time, goods (works, services) sold (acquired) by taxpayers registered with the Baikonur tax authority are subject to this tax in the manner prescribed by the legislation of the Russian Federation.

Paragraph 3 of Article 161 of the Tax Code of the Russian Federation establishes the procedure for applying value added tax in respect of services for the provision of federal property, property of the constituent entities of the Russian Federation and municipal property for rent by state authorities and administrations, local governments. In accordance with this procedure, the tax base for value added tax is determined as the amount of rent, including tax. In this case, the tax base is determined by tax agents, which are recognized as tenants of the said property.

Based on the provisions of Articles 606 and 615 of the Civil Code of the Russian Federation, under a lease agreement, the lessor undertakes to provide the lessee with property for a fee for temporary possession and use or for temporary use. In this case, the lessee has the right, with the consent of the lessor, to sublease the leased property under a sublease agreement, to which the rules of the lease agreement apply.

In view of the foregoing, a Russian organization operating in the territory of the city of Baikonur, when subleasing premises from the administration of the city of Baikonur, is obliged to calculate and pay to the budget the appropriate amount of value added tax in the manner established by the above paragraph 3 of Article 161 of the Tax Code of the Russian Federation.

official position.

The position of the financial department on VAT taxation of transactions for the repurchase of municipal real estate by small and medium-sized businesses, set out in a letter dated 29.08.2011 N 03-07-14 / 88, has not changed to date (letter of the Ministry of Finance of Russia dated 09.08.2013 N 03-07 -14/32220): transactions for the sale of the said property, the ownership of which was transferred to small and medium-sized businesses before April 1, 2011, are subject to value added tax in accordance with the previously effective procedure established by paragraph 2 of clause 3 of Article 161 of the Tax Code of the Russian Federation, according to which tax agents - buyers of property must calculate and pay value added tax, regardless of the date of payment for the property.

Based on the letter of the Ministry of Finance of Russia dated June 19, 2012 N 03-07-14 / 59, the norm of subparagraph 12 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation applies to operations for the sale of state or municipal real estate located in the treasury, to small and medium-sized businesses, ownership which was switched from April 1, 2011; transactions for the sale of the specified property, the ownership of which was transferred to small and medium-sized businesses before April 1, 2011, are subject to value added tax in accordance with the previously effective procedure established by paragraph 2 of clause 3 of Article 161 of the Tax Code of the Russian Federation, in accordance with which to calculate and tax agents - buyers of property must pay value added tax to the budget, regardless of the date of payment for the property.

Arbitrage practice.

Judicial practice on the issue under consideration is unambiguous and does not conflict with the official position.

Based on the Decree of the Federal Antimonopoly Service of the Volga District dated March 19, 2013 N A12-12564 / 2012 (Determination of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 N VAC-9397 / 13 refused to transfer the case N A12-12564 / 2012 to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in the order of supervision of this Decree), taking into account the analysis of the current in the disputed period tax legislation, downstream courts came to the conclusion that the rule established by subparagraph 12 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation is subject to application in relation to transactions for the sale of municipal real estate, the ownership of which has passed to the buyer after 04/01/2011. Under the above circumstances, the lower courts, in the opinion of the Federal Antimonopoly Service of the Volga District, rightly established that the taxpayer had a statutory obligation during the disputed period to calculate and pay VAT to the budget for the reporting period, transferred to the seller of property as payment for property acquired in the reporting period. period municipal immovable property, in connection with which the tax authority lawfully assessed VAT for the specified period, the corresponding amounts of penalties and fines.

The Federal Antimonopoly Service of the West Siberian District, in Resolution No. A03-7098/2012 of February 19, 2013 (By the decision of the Supreme Arbitration Court of the Russian Federation of April 12, 2013 No. VAC-3729/13, it was refused to transfer the case No. A03-7098/2012 to the Presidium of the Supreme Arbitration Court of the Russian Federation for review by way of supervision of this Decree) considers that Court of Appeal, guided by regulations Tax Code of the Russian Federation and Law N 395-FZ, taking into account the explanations set out in the letter of the Federal tax service dated 12.05.2011 N KE-4-3 / [email protected], agreed with the Ministry of Finance of the Russian Federation, establishing that in this case the transfer of ownership of municipal property is registered for the taxpayer in the Unified state register rights to real estate and transactions with it on March 16, 2010 (that is, until April 1, 2011), while in this period the provisions of subparagraph 12 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation did not apply (respectively, these legal relations did not apply), came to the correct conclusion on the fact that it is on March 16, 2010 that an object of taxation arises on the basis of subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, in connection with which the taxpayer, when paying income to the seller, must pay VAT to the budget, including from the funds paid to the seller after April 1, 2011 under installment agreements. In connection with these circumstances, it is legitimate to conclude that the tax authority has no grounds for taking into account the disputed amount when additionally assessing VAT for the third quarter of 2011 as an overpayment to the taxpayer.

FAS Northwestern District in the Decree of 11.03.2013 N A26-3654 / 2012 notes that the object of taxation for value added tax when selling real estate is determined on the date of registration of ownership, while the case materials established that the organization's ownership of the acquired real estate was registered on 25.08 .2010, which is confirmed by the certificate of state registration of rights dated 25.08.2010, that is, until 01.04.2011. Under such circumstances, the courts of the first and court of appeal came, according to the Federal Antimonopoly Service of the North-Western District, to the correct conclusion that since the transfer of ownership of municipal property was registered for the company on August 25, 2010, it is during this period that an object of taxation arises on the basis of subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, and the organization, when paying income to the seller, had to pay value added tax to the budget, including from the funds paid to the seller after 04/01/2011 under an installment payment agreement.

The Federal Antimonopoly Service of the West Siberian District, in Decree N A70-1843/2012 dated November 27, 2012, explains the procedure for applying subparagraph 12 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation: if the ownership of real estate was transferred before April 1, 2011, and the payment of income from the sale (transfer) this property is carried out, including after 04/01/2011, then organizations and individual entrepreneurs must withhold from the paid income, calculate and transfer VAT to the budget when acquiring such property, in accordance with the edition of the Tax Code of the Russian Federation, which was in force before the entry into force of Law N 395-FZ . The specified procedure for applying subparagraph 12 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation is consistent with the provisions of Articles 39 of the Tax Code of the Russian Federation, paragraph 2 of Article 223 of the Civil Code of the Russian Federation, based on which the object of taxation when selling goods, the ownership of which is subject to state registration, also arises at the time of state registration of the right property.

Attention!

When applying paragraph 2 of clause 3 of Article 161 of the Tax Code of the Russian Federation, the question arises of whether the buyer of state (municipal) property is a tax agent if a third party pays for the property.

So, on the basis of paragraph 1 of Article 313 of the Civil Code of the Russian Federation, the debtor may impose the obligation on a third party, unless the obligation of the debtor to perform the obligation personally follows from the law, other legal acts, the terms of the obligation or its essence.

According to the circumstances of the case considered by the Federal Antimonopoly Service of the Urals District in Resolution No. Ф09-6744/12 dated 30.07.2012, the basis for the additional charge of VAT was the conclusions of the tax authority that an individual entrepreneur is a taxpayer who is a buyer of municipal property and, accordingly, a tax agent, in violation of paragraph 3 of Article 161 of the Tax Code of the Russian Federation did not calculate and pay VAT to the budget. The lower courts found that, under the terms of the contract for the sale and purchase of an object of municipal property with an installment payment, concluded by the taxpayer with the department property relations executive body municipal formation, the individual entrepreneur acquired the built-in non-residential premises. The sale price is set by the parties without VAT. Wherein cash are listed not by the individual entrepreneur, but by the organization, at the same time, the purpose of the payment indicates that the payment was made for the individual entrepreneur under the contract of sale.

In view of the foregoing, having established that the IP, in violation of paragraph 2 of clause 3 of Article 161 of the Tax Code of the Russian Federation, did not transfer the calculated amount of VAT to the budget, the lower courts came to the conclusion that it was legal to charge the IP with the disputed amount of VAT, the corresponding penalties and bring to responsibility for. In addition, since the contract price does not include VAT, the tax agent must charge the amount of tax in excess of the contract price, applying a rate of 18%, which the IP did not do.

And the taxpayer's argument that the obligation to pay VAT arose not from him, but from the organization as a payer under the contract, was considered by the courts and rejected as based on an erroneous interpretation of the law.

Thus, by virtue of paragraph 3 of Article 161 of the Tax Code of the Russian Federation, buyers (recipients) of the relevant property, and not third parties paying for property, are recognized as tax agents.

Actual problem.

In accordance with the procedure provided for in paragraph 2 of clause 3 of Article 161 of the Tax Code of the Russian Federation, value added tax is paid by buyers of the said property - organizations and individual entrepreneurs. However, it is not clear whether this procedure applies to individuals who are not individual entrepreneurs.

official position.

According to the financial department, the procedure under consideration does not apply to individuals who are not individual entrepreneurs, and therefore, when selling municipal property constituting the municipal treasury, individuals who are not individual entrepreneurs, the value added tax is paid by local governments that carry out operations for the sale of this property (letter dated 07/27/2012 N 03-07-11 / 198).

According to the letter of the Ministry of Finance of the Russian Federation dated April 25, 2011 N 03-07-11 / 107, when selling the said property to individuals who are not individual entrepreneurs, value added tax is paid to the budget by local governments that carry out operations for the sale of this property.

Paragraph 4 of the commented article is valid as amended by the Federal Law of November 24, 2014 N 366-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation and Certain Legislative Acts of the Russian Federation". According to new edition of paragraph 4 of Article 161 of the Tax Code of the Russian Federation when selling confiscated property on the territory of the Russian Federation, property sold by a court decision (with the exception of the sale provided for by subparagraph 15 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation), ownerless valuables, treasures and purchased valuables, as well as valuables that have passed according to the right of inheritance to the state, the tax base is determined based on the price of the property (values) being sold, determined taking into account the provisions of Article 105.3 of the Tax Code of the Russian Federation, taking into account excises (for excisable goods). In this case, bodies, organizations or individual entrepreneurs authorized to sell the said property are recognized as tax agents.

Thus, in accordance with paragraph 1 of Article 225 of the Civil Code of the Russian Federation, an ownerless thing is a thing that does not have an owner or the owner of which is unknown or, unless otherwise provided by laws, the ownership of which the owner has renounced.

On the basis of paragraph 1 of Article 233 of the Civil Code of the Russian Federation, a treasure, that is, money or valuable items buried in the ground or otherwise hidden, the owner of which cannot be established or, by virtue of the law, has lost the right to them, becomes the property of the person who owns the property (land plot , building, etc.), where the treasure was hidden, and the person who discovered the treasure, in equal shares, unless otherwise established by agreement between them. If a treasure is discovered by a person who excavated or searched for valuables without the consent of the owner of the land plot or other property where the treasure was hidden, the treasure is subject to transfer to the owner of the land plot or other property where the treasure was discovered.

By virtue of paragraph 2 of Article 1116 of the Civil Code of the Russian Federation, the Russian Federation, subjects of the Russian Federation, municipalities, foreign countries and international organizations, and to inheritance by law - the Russian Federation, subjects of the Russian Federation, municipalities in accordance with Article 1151 of the Civil Code of the Russian Federation.