Under these circumstances the Ministry of Finance of the Russian Federation and the Federal Tax Service of the Russian Federation clarify the principles for interaction of the land legislation and article 5 of the Tax Code of the Russian Federation, which regulates the application of the regulatory legislation acts on taxes and duties issued by the executive bodies of the subjects of the Russian Federation.
For instance, it is clarified that since the regulatory legislation acts of the executive bodies of the subjects of the Russian Federation on approval of the results of the state cadastre estimation of the land regulate land but not tax relations, the acts mentioned do not belong to the regulatory legislation acts on taxes and duties, and, consequently, the norms of article 5 of the Tax Code of the Russian Federation cannot be applied to them. This opinion is reflected in the resolution of the Supreme Court of the Russian Federation from 9 December 2002 No 18-G02-12.
On application of the results of the state cadastre estimation of the land plots for the purposes of taxation, one should take into account the duties of the bodies conducting the state land cadastre to submit the data on the land plots to the taxation bodies before 1 February of the year that is the taxation period and the right of the of the taxpayers to receive the information on the cadastre value of the land plots by the state of affairs on 1 January of the calendar year before 1 March of the calendar year.
That is the changes in the taxation base are introduced only on the basis of such notifications.
3. The Federal Law from 24 November 2008 No 208-FZ introduces changes in article 346.14 of the Tax Code of the Russian Federation. It envisages the right of the taxpayer to change the taxation object annually in case the simplified taxation system is applied (incomes, or incomes with expenditures deduced).
Earlier it was permitted only once in three years.
4. According to the letter of the Federal Tax Service of the Russian Federation from 25 November 2008 No ShS-6-3/854@ and the Ministry of Finance of the Russian Federation from 10 November 2008 No 03-11-02/126 the issue on changes in the procedure of the taxation with the single tax on the imputed income is clarified. If the number of the organization’s and (or) individual entrepreneur’s staff average on the list makes more than 100 people as a result of 2008, and in case the share of other organizations’ participation makes more than 25%, then such an organization and (or) individual entrepreneur cannot apply single tax on the imputed income from 1 January 2009. At the same time the Russian Federation, subjects of the Russian Federation and municipal formations are not considered to be economic entities according to the essence of the civil legislation and, consequently, arre not included in the list of organizations for the purposes of the Tax Code o0f the Russian Federation.
That is why the limitations are not applied in cases when the Russian Federation, subjects of the Russian Federation and municipal formations are share-holders (participants, organizers) of the companies.
Such an explanation is valid for unitary enterprises, since their property is indivisible and belongs to the organizer.
According to the Federal Law from 22 July 2008 No 155-FZ “On making changes to Part Two of the Tax Code of the Russian Federation” starting with 1 January 2009 the limitation that does not allow organization having branches and (or) representatives to transfer to the single agriculture tax is cancelled. From now on such organizations wishing to transfer to payment of the single agriculture tax from 1 January 2009, from 20 October 2008 to 20 December 2008 should submit to the taxation bodies the applications on transfer concerning agriculture tax payment.
5. According to the letter of the Federal Tax Service of the Russian Federation from 28 November 2008 No ShS-6-3/862@ the issue on the procedure of the VAT deduction applications from 01.1.2006 while constructing the objects of the real estate, as well as when the fixed assets are purchased in case on these objects being put into commission the taxpayer starts using it simultaneously in the taxable and non-taxable operations is clarified.
Starting with 01.01.2006 a special procedure for the recovery of taxation sums that are not to be paid in the budget is applied for the construction of the objects of the immovable property (fixed assets).
Thus, according to paragraph 4 clause 6 article 171 of the Tax Code of the Russian Federation, the sums of the taxes that a taxpayer is charged with on construction of the objects of immovable property (fixed assets) carried out by the order executors, on purchasing immovable property, calculated by the taxpayer on carrying out the construction works for his own use, adopted as a deduction according to the procedure, envisaged by chapter 21 of the Tax Code, are to be recovered in case these objects of immovable property (foxed assets) are further used for the purposes not levied with VAT, namely:
those mentioned in clause 2 article 170 of the Code (for instance when producing goods, works, services, exempted from the taxation, conducting operations, not recognized as sale in the territory of the Russian Federation etc.). Calculation of the tax sum to be recovered in the taxation base of the profit tax and to be paid to the budget is made taking as a basis 1/10 of the sum of the tax, multiplied by the value equal to the ratio of goods (works, services, property rights) value not levied with the tax to the total value of goods (works, services, property rights) over the calendar year. The sum of the tax to be recovered is not to be included in the value of the property sold and is to be accounted as a part of other expenditures of the organization in concordance with article 264 of the Code.
The special procedure for VAT deductions when constructing the objects of immovable property (fixed assets) is established. It envisages the possibility for taking to deduction value added tax sums, which the taxpayer is levied with by the order executors and other suppliers within the framework of construction works conduction, as well as the sums of the taxes, the taxpayer faces when buying the uncompleted objects of capital construction, before the construction of these objects of immovable property (fixed assets) is completed. In such a case VAT is recovered and paid to the budget within years for the objects of immovable property (fixed assets) put into commission.
6. According to the letter by the Federal Tax Service of the Russian Federation from 28 November 2008 No ShS-6-3/868@ the issue of VAT payment when the debtor settles the liability of credit contract, earlier received in the monetary form, by transferring of the monetary means on charge of the lender to the third party (goods, works, services supplier), as well as when the debtor settles the liability of credit agreement by shipping to the lender goods (works, services).
According to the Tax Code of the Russian Federation, to define VAT sum to be deduced, the following conditions should be mat simultaneously:
- Invoice for purchased goods (works, services) available;
- Corresponding primary documents, proving that they were taken into account, available;
- Use of purchased goods (works, services) in the operations regarded as objects of taxation.
If the contract of goods (works, services) buying and sale envisages that the payments with the supplier will be made in monetary form, then, irregardless of the means the customer will use to pay (his own funds of borrowed funds at his account), the customer has a right for deduction in the taxation period when all the conditions mentioned above were fulfilled.
For goods exchange operations the sum of the tax, given to the customer by the taxpayer, is paid to the taxpayer on the basis of the invoice for monetary funds transfer and this sum is to be transferred to the budget by the taxpayer. The statement mentioned was put into effect on 1 January 2007 and applies to goods (works, services), purchased starting from 01.01.2007.
As to the credit contract, the objects of taxation in this case are the monetary means, received by the borrower in accordance with the credit contract, which are to be regarded for the date of the mentioned agreement signing as a pre-payment for the forthcoming goods (works, services) supply. In Accordance with clause 1 article 154 o the Tax Code of the Russian Federation, taxation base is determined from the sum, received by the borrower VAT included. That is borrowing 118 rubles, the borrower can use only 100 rubles, because he is to pay 18 rubles to the budget.
7. According to the letter of the Ministry of Finance of the Russian Federation and the Federal Tax Service of the Russian Federation from 1 December 2008 No ММ-6-1/873@ the mechanism of the operations for set-off (return) making the excessively paid (levied) sums of insurance fees for the compulsory pension insurance (the procedure of interaction between the insurer, Pension Fund of the Russian Federation, Federal Tax Service of the Russian Federation and Federal Treasury of the Russian federation) is clarified.
8. Federal Law from 4 December 2008 No 251-FZ makes changes to article 154 and 164 of the Tax Code of the Russian Federation.
VAT is introduced for resale of the second-hand cars, purchased from the natural persons, who do not pay this tax. The taxation base is defined as a difference between the market price (article 40 of the Tax Code) the tax included and the price for these cars purchase.
9. According to the Letter of the Federal Tax Service of the Russian Federation from 8 December 2008 the mechanism for the organizations’ and individual entrepreneurs’ transfer to the single tax on the imputed income from 1.01.2008. Starting with 01.01.2009 the organizations and single entrepreneurs, the average number of whose staff on the books over the preceding calendar period exceeds people, are not to apply the single tax on the imputed income.
If as a result of the taxation period (quarter is referred to as a taxation period) the taxpayer violates the limitation concerning the number (average number of the staff on the list exceeds 100 people), he is considered to lose the right to apply single tax on the imputed income and to have transferred to the general regime of the taxation from the beginning of the taxation period in which the violation of the requirements mentioned took place.
In case the taxpayer has not violated the restrictions regarding the number of staff for a quarter, he can transfer to single tax on the imputed income payment from the beginning of the quarter after the quarter in which the taxpayer eliminated violations of the established requirements.
Thus, in case as a result of the first taxation period of 2009 the average number of the staff on books of the taxpayer, who has lost the right to apply the single tax on the imputed income, will not exceed 100 people, such a taxpayer can transfer to single tax on the imputed income payment starting with the second quarter.
10. The letter of the Ministry of Finance of the Russian Federation from 11 December 2008 No 0303-05/166, the Federal Tax Service of the Russian Federation from 1 December 2008 etc the procedure for the transfer to payment of the monthly advance payments for profit tax is clarified in connection with article 3 of the Federal Law from 26.11.2008 No 224-FZ coming into effect from 27 November 2008. It is clarified that organizations having decided to change at the end of 2008 the procedure for payments to the budget (and informed the taxation bodies on time about this) and to transfer from the general procedure of the tax payment by the advance payments, envisaged by the Tax Code of the Russian Federation, to the procedure of tax payment by advance payments on really existing profit over the period from the beginning of the year till the end of the month before the month when the advance payment is made can apply the procedure introduced by the Federal Law No 22-FZ. Thus, the procedure introduced by the Federal Law No 224-FZ is a transitional for those who want to transfer from the advance payments, calculated according to the general scheme, to the scheme of advance payments calculation according to really received profit.
The tables below illustrate the attempt to compare two schemes: the usual one, envisaged by article 286 of the Tax Code of the Russian Federation, and the scheme introduced specifically for the 4th quarter 2008.
Review of Budgetary Legislation M. Goldin In December 2008 the following events took place in the field of the budget legislation: the Government of the Russian Federation established the limiting values of the rent areas that are subject to privatization according to the simplified procedure by small and medium-scale enterprises, as well as the maximum period for the down payment; the procedure for the conclusion of agreements on transfer of authority between the federal and regional executive bodies; prolonged the effect of the Methods for the calculation of the normative for expenses formation for maintenance of the public authorities of the subject of the Russian Federation; established the procedure for the conduction of the measures and projects selection concerning the fulfillment of the administrative reform in 2009.
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