Besides, the Letter informed that the documents of the chief administrators of the financial resources of the federal budget containing the provisions concerning the procedures governing the application of the economic classification of expenditures of budgets of the Russian Federation should be on the mandatory basis be approved by the Ministry of Finance of the Russian Federation.
Ye. M. Khegai A review of regulatory documents concerning taxation issues, which were made public in March and April of 1. Letter of the RF Ministry of Economic Development and Trade and the Federal Customs Service No.
01-06/11281 of April 5, 2006, explains the issues pertaining to the consequences of the failures to timely submit claims concerning the payment of customs duties (the established term is 10 days since the date of revealing thereof).
The letter explains that the forwarding of claims requiring taxpayers to make customs payments should always precede the enforcement thereof by the customs authorities and should be a mandatory condition of the application of the said enforcement. Therefore, in any case the taxpayer should be proposed to fulfill the duty to make customs payments on the voluntary basis (including the cases, where the 10 day term set by the RF Customs Code with respect to the forwarding of the claim was not met – within the 3 year statute of limitations pertaining to the making of the claim). The failure to meet the 10 day term should not be an obstacle to the enforcement of customs payments. However, this enforcement should be made not under uncontested proceedings, but with recourse to the court.
2. Letter of the Federal Tax Service MM-6-19/357 of April 4, 2006, and letter of the RF Finance Ministry No. 03-02-07/2-10 of February 22, 2006, explain the issue pertaining to the writing off of excessive amounts of tax paid by the taxpayer by tax authorities in the case of expiration of the statute of limitations as concerns the submission of applications with respect to the offset (refund) of the tax on the part of the taxpayer.
The excess amount of the paid tax should be refunded on the basis of the written application of the taxpayer (article 78 of the RF Tax Code). In the case the taxpayer has tax and fee arrears, or penalty arrears with respect to the same budget (extra-budgetary fund), the refund of the amounts paid in excess may be carried out only after the setoff of the said amount against the arrears. At the same time, within 3 years since the date of payment of the tax, the taxpayer should have the right to claim the refund of this amount under the uncontested proceedings without recourse to the court. In the case the said 3 year term expires, the taxpayer should have the right to take the legal recourse and submit the claim concerning the refund of the amount paid in excess from the respective budget in the framework of the civil or arbitration proceedings; in this case there should be applied the general rules governing the computation of the statute of limitations: since the date the person became aware or should become aware of the infringement on the respective right (item 1 of article 200 of the RF Civil Code).
Therefore, the Federal Tax Service considers that the tax authority has the right to write off the amount of tax paid in excess (about which the taxpayer was notified, but failed to submit the respective application concerning the refund of setoff thereof and did not submit to the tax authorities the accounting and tax statements in accordance with which the amount of the tax paid in excess could be set off against future payments) without further authorization. Besides, the tax authorities have the right to write off the amounts of tax paid in excess on the basis of the valid court ruling refusing the taxpayer to use the right of refund because of the statute of limitations.
3. Letter of the Federal Tax Service No. GV-6-02/258 of April 4, 2006, explains the application of the prolonged tax rates as concerns the rates of the profit tax on organizations with respect to agricultural producers not switched to the system of taxation of agricultural producers (the single agricultural tax) as concerns the activities relating to the sale of their agricultural produce and the sales of their own processed agricultural produce (in 2008 through 2007 – 0 per cent; in 2008 and 2009 – 6 per cent; in 2010 and 2011 – 12 per cent; in 2012 through 2014 – 18 per cent; since 2015 – as determined by item 1 of article 284 of the RF Tax Code), as well as the procedures governing the submission of tax declarations in these situations.
4. Letter of the Federal Tax Service MM-6-03/350 of April 3, 2006, and letter of the RF Finance Ministry No. 03-04-08/67 of March 23, 2006, explain the issue pertaining to the acceptability of deduction of the VAT paid by the consignee at the time of import of goods to the customs territory of the Russian Federation from the consigner.
The documents, on the basis of which there may be accepted the deduction of the VAT amounts paid at the time of import of goods to the customs territory of the Russian Federation, should be the customs declaration for the goods imported under the customs regimes of import for domestic consumption or temporary importation, and payment documents confirming the actual payment of the amounts of the value added tax to the customs authorities.
In the framework of the commission contract, one party (consignee) undertakes to made one or several transactions for a remuneration on the commission, on behalf, and at the expense of the other party (consignor) (item 1 of article 990 of the RF Civil Code). In the case the VAT amount is paid by the consignee, the tax should be accepted for deduction from the consignor after the consignor enters into books the purchased goods on the basis of the documents confirming the fact of payment of the tax by the consignee, and the customs declaration (its copy) for the imported goods received from the consignee.
5. Letter of the Federal Tax Service MM-6-03/342 of March 30, 2006, and letter of the RF Finance Ministry No. 03-04-15/61 of March 16, 2006, explain that for the purposes of payment of the VAT in the cases, where taxpayers fail to confirm their right for the application of the zero rate of the tax, the recalculation of the foreign exchange denominated proceeds in the Russian rubles should be made as on the date of shipment of goods (works, services) and not on the date of they were paid for.
6. Letter of the Federal Tax Service No. GV-6-02/323 of March 24, 2006, instructs to work taking into account Order of the RF Finance Ministry No. 24n of February 7, 2006, “On the approval of the form of the tax declaration for the tax on the profits of organizations and the procedures governing the filling in thereof” (registered by the RF Justice Ministry, No. 7528, February 20, 2006).
7. Letter of the RF Finance Ministry No. 03-04-03/07 of March 24, 2006, explains the issues pertaining to the payment of the VAT by Russian organizations as tax agents in the cases such organizations purchase services rendered by foreign organizations with respect to the granting of licenses for the right to use software products, consulting services, and services concerning the processing of information. In such cases, the territory of the Russian Federation is defined as the place of rendering of such services. The VAT tax base should be determined by the tax agents as the amount of proceeds from the sale of goods (works, services) taking into account the value added tax.
In the case the foreign organization does not include the amount of the value added tax subject to be paid in the budget of the Russian Federation in the cost of its services concerning the processing of information, the Russian taxpayer should use the tax rate at 18 per cent with respect to the cost of the services in the course of the computation of the amount of the tax to be paid and should pay the tax in the budget at the expense of its own funds.
Russian taxpayers (tax agents) should have the right to include such VAT amounts in the composition of their expenditures applicable to reduce their tax bases as concerns the value added tax.
8. Letter of the RF Finance Ministry No. 03-03-04/1/275 of March 24, 2006, explains the issues pertaining to the inclusion of the profit tax in the composition of amounts of the debtor indebtedness written off after the reorganization of companies in the form of their split off the composition of the new organization.
The amounts of debtor indebtedness, with respect to which the statute of limitations had expired, as well as the debts to liquidated legal persons (the amounts of bad debts not covered at the expense of reserves) should be taken into account in the process of formation of the profit tax base of new organizations in the structure of the expenditures not relating to sales.
At the same time, in the case such expenditures computed on the basis of the accrual method as concerns the reorganized organization should be included in the structure of current expenditures, the term of payment of which expires prior to the date of the state registration of the new company, such expenditures should not be taken into account in the process of formation of the tax base of the new (split off) company.
In the case bad debts originated at the reorganized company prior to the moment of transfer of the indebtedness on the basis of the split off balance sheet to the split off companies, i.e. prior to the date of the state registration of the split off companies, such debts should be taken into account in the process of formation of the tax base of the old (reorganized) company.
9. Order of the RF Finance Ministry No. 48n of March 23, 2006 (registered by the RF Justice Ministry, No.
7699, April 17, 2006) approves the form of the tax computation as concerns the advance payments of the transport tax, and the Recommendations concerning the filling in thereof.
10. Letter of the Federal Tax Service No. MM-6-21/304 of March 22, 2006, and letter of the RF Finance Ministry No. 03-06-01-02/09 of March 3, 2006, explain the issue pertaining to the procedures governing the application of privileges concerning the transport tax and the tax on the property of organizations being unitary (state) enterprises (including military units), which are independent legal persons under the jurisdiction of the RF Defense Ministry.
In accordance with subparagraph 6 of paragraph 2 of article 358 of the RF Tax Code, the transport vehicles owned by the federal executive authorities, for which the legislation envisages military and / or paramilitary service, on the basis of the right of economic management or operating management should not be subject to the transport tax and the property tax. The unitary (state) enterprises, which are independent legal persons under the jurisdiction of the RF Defense Ministry, are not defined as the federal executive authorities and therefore should pay the transport tax on the transport vehicles owned by such enterprises on the basis of the right of economic management or operating management under the general procedure.
11. Letter of the Federal Tax Service No. GV-6-05/307 of March 22, 2006, and letter of the RF Finance Ministry No. 03-05-02-03/12 of March 6, 2006, explain the issue pertaining to the payment of the single social tax with respect to the amounts of payments made by foreign organizations to their employees sent to (being on business trips) at the representation offices of such organizations situated in the territory of the Russian Federation.
The payments made by foreign organizations under employment contracts to their employees being foreign citizens in connection to the works performed (services rendered) in the territory of the Russian Federation at representation offices of such organizations should be recognized as objects of taxation with respect to the single social tax notwithstanding the status of employees (residents or nonresidents of the Russian Federation), the places, where such contracts were made, as well as notwithstanding the places, where the payments originated or made (abroad or in the territory of the Russian Federation).
On the contrary, the daily allowances paid by foreign organizations to their employees being on business trips to representation offices of such organizations situated in the territory of the Russian Federation, should not be subject to the single social tax in accordance with the legislation of the Russian Federation when being on business trips in the RF territory.
As concerns the amounts of insurance contributions pertaining to the mandatory pension insurance, such amounts should be paid both with respect to the payments made in the framework of employment contracts made between foreign companies and their employees for the time such employees resided in the territory of the Russian Federation, and the amounts of daily allowances paid in the course of short term business trips.
The documents discussed above provide evidence that there exist insignificant, technical, and economically unjustified differences as concerns the single social tax bases and contributions to the mandatory pension insurance on the part of employees of foreign companies. In the framework of the RF Tax Code there was made an attempt to unify the single social tax bases and the payments to the state extra-budgetary funds; however, after the adoption of the special legislation regulating insurance this approach was destroyed. As a result, at present organizations have to differently form the single social tax bases and payments to the state extrabudgetary funds. This creates artificial obstacles as concerns the accounting operations and unreasonably increases expenditures for the tax administration.
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