According to the Federal Law on accounting and the Order of the RF Ministry of Finance and the RF Ministry for Fees and Taxes from 13.08.2002 No 86n/BG-3-04/430 individual entrepreneurs make an account of incomes and expenses and economic operations in the Book. The expenses are reflected in the Book by cash method, that is after actual making of the expenses. That is why in the opinion of the RF Ministry of Finance, VAT sums are also subject to deduction to the extent the operations on purchase of goods (works, services, rights) are reflected in the Accounting Book.
2. According to the letters by the RF Ministry of Finance from 25.04.2008 No 03-02-07/2-76 and by the RF Federal Tax Service from 26 May 2008 No ShS-6-3/381@ the issues concerning the procedure for registration of the results of the cameral inspection on submission of the specifies tax declarations are elucidated.
In the opinion of the RF Ministry of Finance and the RF Federal Tax Service, cameral tax inspection of the primary tax declaration during which the taxpayer is to submit a specified tax declaration to the tax body before the tax body has revealed the fact that the data were not reflected or were not reflected to the full extent in the primary tax declaration, or the mistakes leading to the underestimation of the tax sum to be paid is to be stopped.
3. According to the letter of the RF Ministry of Finance from 3 June 2008 No 03-03-06/1/343 the issue on the procedure of taxation with the incomes tax in case the salesman gave discounts to some counteragents is settled.
It is explained that in case according to the agreement between the parties the seller is to grant a bonus or discount to the customer on his fulfillment of some parts of the agreement, for instance on his making a certain volume of purchase, as it is envisaged by subparagraph 19.1 paragraph 1 article 265 of the Tax Code, such discounts can be regarded as off-sale expenses by the seller organizations when forming the taxation base for the incomes tax.
4. According to the letter of the RF Ministry of Finance from 3 June 2008 03-07-11/212 the issue on the VAT exemption for educational services rendered by non-governmental organizations of the additional professional education in the form of lectures, probation periods, seminars and other kinds of education of the duration of less than 72 hours.
The RF Ministry of Finance clarifies that according to the regulatory documents, including the Statement on educational activity licensing, approved by the Decree of the RF Government of 18.10.2000 No 796, educational activity in the form of lectures, probation periods, seminars and other kinds of education that is not accompanied with the attestation and giving documents on education and qualification is not subject to licensing. IN accordance with the standard statements on the educational institutions, including educational institutions of additional professional education (approved by the Decree of the RF Government of 26.06.1995 No 610), the government educational institutions must give students that successfully finished the training course the documents of the form approved by the government only if the training program volume was more than 72 hours.
4. According to the letters of the RF Ministry of Finance from 3 June 2008 No 03-03-05/5and of the RF Federal Tax Service from 25 June 2008 No ShS-6-3/452@ the issues of the definition of the notion “agriculture goods producer” for the tax legislation application are clarified.
Since according to chapter 25 “Organizations’ incomes tax” and part one of the RF Tax Code does not state otherwise, in 2004-2006 the notion of the “agriculture goods producer” given in the Federal Law from 08.12.1995 No 193-FZ "On agriculture cooperation" should be applied; and starting with 1 January 2007 the statements of the Federal Law from 29.12.2006 No 264-FZ “On agriculture production development” on the notion of agriculture goods producer, that meets the criteria, envisaged by paragraph 2 article 346.2 of the RF Tax Code.
5. According to the letter of the RF Ministry of Finance from 4 June 2008 No 03-03-06/2/65 the issue on the procedure for definition of the taxation base when the organization pays for the contracts of individual insurance of its employees concluded for the period of more than three years, envisaging the payment by the insures of the health care expenses of the insured is clarified. The RF Ministry of Finance explains that the contributions made in accordance with such contracts can be included in the list of expenses at the extent that does not exceed 3% of the total sum of expenses for labor remuneration of all the organization’s employees and not of only the insured ones.
6. According to the letter of the RF Ministry of Finance from 9 June 2008 No 03-03-06/2/68 the issue on the taxation of the dividends with the incomes tax is settled. For instance, it is clarified that to prove the right for zero taxation rate application to dividends, the taxpayer who receives the dividends should submit to the tax body the documents, enlisted in paragraph 3 article 284 of the RF Tax Code.
In this connection the taxpayer that has a right to enjoy a tax rate of 0%, in the opinion of the RF Ministry of Finance, the corresponding documents that testify the right mentioned should be submitted, as well as the documentary proof that such documents were given to the tax body, tax agent, who is responsible in accordance with paragraph 2 article 25 of the Code for calculation and deduction of the tax sum. The RF Ministry of Finance stresses that such a clarification is not a regulatory legal act.
Experts, including Consultant Plus, have already noticed that the position of the RF Ministry of Finance is not irrefutable, since the existing legislation does not state the liability of the taxpayer to give the tax agent information on him submitting the documents to the tax body. Thus, an issuer, as a tax agent has a right to make deductions at the rate of 0% on the basis of the documents at hand.
7. According to the letter of the RF Ministry of Finance from 10 June 2008 No 03-04-06-01/162 the issue on the procedure of personal incomes tax calculations is settled in case the tax status of a non-resident has been changed. For instance, it is clarified that when defining the tax status of the natural person it is necessary to take into account the 12-month period preceding the date when the natural person received the income, including that started in the previous year. If during this period the term of the natural person being in the RF territory was less than 183 days, the employee is not considered to be a tax resident and his incomes from the sources in the Russian Federation are to be levied with the tax of 30% tax rate.
In case on the date of incomes payment the employee is considered to be a tax resident of the Russian Federation, his incomes from the sources in the Russian Federation are to be levied with taxes at 13% tax rate. In case the tax status does not change from the moment of his recognition as the resident to the end of the taxation period, the sum of the tax on incomes from the sources in the Russian Federation earlier calculated for him as a non-resident at the rate of 30% should be recalculated at the rate of 13%.
8. According to the letter of the RF Ministry of Finance from 11 June 2008 No 03-07-11/225 the issue on exemption from VAT for the operations of lottery tickets distributors on the basis of commission agreements, trust agreements or agent agreements on the sale of lottery tickets, made according to the decision of an authorized body is settled.
9. According to the letter from 20 June 2008 No 03-04-06-02/60 the RF Ministry of Finance clarifies the procedure for payment of the single social tax when transferring from the simplified taxation system (when the single social tax is not paid but the insurance contributions for compulsory pension insurance are) to the general taxation regime.
Single social taxation base should be defined from the beginning of the quarter when the violation of the conditions for the simplified taxation system occurred: incomes exceeded RUR 20 mln or the exceeding of other limitations was allowed (for instance, average staff number exceeded 100 people, the cost of the depreciated property exceeded RUR 100 mln, the share of other organizations’ participation in the assets exceeded 25% or other inconsistencies with the requirements of the law established be articles 346.12 and 346.14 of the RF Tax Code were allowed).
The RF Ministry of Finance draws attention to the case that the taxation base for the single social tax and the base for making insurance contributions to the compulsory pension insurance may not be equal (Note:
since they account for the different periods of the year and cannot be added since they are different taxes).
The contributions for compulsory pension insurance are deduced from the single social taxation base, which were transferred for the benefit of natural persons over the period of operation under general regime of taxation (Note: According to the Federal Law from15.12.2001 No 167-FZ “On compulsory pension insurance in the Russian Federation” the payment of insurance contributions is made by advance payments, that is why when transferring to the single social tax payment during the year the advances and insurance contributions paid within the framework of the simplified system and referring to the period when the organization started using the single social tax are deduced from the single social tax sum).
10. In connection with the change of the VAT taxation period (transfer to quarter period starting with January 2008) the letters of the RF Ministry of Finance from 03.06.2008 No 03-07-15/90) and of the RF Federal Tax Service from 24 June 2008 No ShS-6-3/450@ the clarify the issue on the procedure for separate accounting of VAT sums, brought to the taxpayer for goods (works, services, property rights), including fixed assets, non-material goods, purchased after 1 January 2008 in case the tax payer conducts both the operations levied with and exempted from VAT.
In accordance with the RF Tax Code, Vat is deduced (or taken into account in the costs of the goods, services and property rights purchased) in the proportion in which they are used for production and (or) sale of goods (works, services, property rights), sales operations on which are subject to (or – correspondingly – exempted from) the taxation.
The proportion mentioned is defined basing on the cost of the corresponding group (levied with or exempted from the VAT) of goods (works, services, property rights) shipped over the taxation period. In connection with the transfer to the taxation period which is equal to the year quarter form 1 January 2008, the definition of the proportion for VAT sums calculation is also to be conducted basing on the data of the current taxation period.
11. According to the Federal Law from 24 June 2008 No 92-FZ changes were made to the Federal Law from 5 August 2000 No 118-FZ “On coming into effect of part two of the Tax Code of the Russian Federation and making changes to come legislative acts on taxes of the Russian Federation”. For instance, the exemption from VAT payment (not applied according to article 150 of the RF Tax Code) of agriculture goods producers and Russian organizations conducting leasing activity on the import of the cattle, pedigree pigs, sheep and goats and embryos of the pedigree animals mentioned, pedigree horses and eggs into the RF territory is prolonged up to 01.01.2012. Until the date mentioned VAT taxation at a reduce tax rate of 10% of the profit from the fulfillment of services on giving the bloodstock to the property and use according to the leasing contracts with the right of purchase is established.
12. According to the letter of the RF Ministry of Finance from 24 June 2008 No 03-03-06/1/367 the procedure for the definition of the cost of the fixed assets and materials obtained by the taxpayer who was an organization’s participant when the organization is liquidated and its property distributed.
In accordance with paragraph 2 article 227 of the RF Tax Code when the organization is liquidated and its property distributed the incomes of the taxpayers that were shareholders (participants, stockholders) of the liquidated organization are define don the basis of the market price of the property (property rights) received by them deducing of the really paid (irrespective of the form of payment) cost of shares (stocks, securities) of the organization by the corresponding shareholders (participants, stockholders).
At the same time chapter 25 of the Tax Code does not contain statements establishing the procedure for definition of the fixed assets and materials cost of the organization that is liquidated.
On this basis the RF Ministry of Finance makes a conclusion that the cost of the fixed assets and materials received by the taxpayer that is a member of the organization after its liquidation for the purposes of tax accounting is zero.
Note: This position of the RF Ministry of Finance is not irrefutable. According to the decision o the Constitutional Court from 18 July 2003 No 14-P it is clarified that the RF Ministry of Finance and the RF Federal Security Commission have a right to define the procedure for estimation of the cost of the joint-stocks companies net assets, since this corresponds with the mission of the federal bodies mentioned. In case the shareholders do not agree with the criteria for estimation of the net assets costs, established in the subordinate legislative act, the estimations can be argued by citizens and citizens communities in the court, since the arbitrary courts have a right to estimate the financial solvency of an joint-stock company taking into account economic criteria on the competitive principle. To fulfill the direct instruction of paragraph 3 article 35 of the Federal Law “On joint-stock companies” according to the Order of the RF Ministry of Finance and the RF Federal Security Commission from 29 January 2003 No 10n/03-6/pz the Procedure for the estimation of the net assets of joint-stock companies was established. For the banks and insurance organizations separate procedures for the estimation of the net assets are established. Since there are no other procedures, that according to the letter by the RF Ministry of Finance from 11 November 2002 No10n/03-6/pz is to be applied by all the organizations, excluding non-commercial, banking and insurance ones.
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