The theory of everything. Tax Code of the Russian Federation 8 Article 161 of the Code

1. When selling goods (work, 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 (work, services) including tax.

The tax base is determined separately for each transaction involving the sale of goods (work, 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. In this case, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities that purchase goods (work, services) on the territory of the Russian Federation from foreign entities specified in paragraph 1 of this article, unless otherwise provided for in paragraphs 3 and 9 of Article 174.2 of this Code. . Tax agents are obliged to calculate, withhold from the taxpayer and pay the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by this chapter.

3. When federal property, property of constituent entities of the Russian Federation and municipal property are provided for lease on the territory of the Russian Federation by government and administrative 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, the tax agents are the tenants of the specified property. These persons are required to calculate, withhold from 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 that is 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 municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, the tax base is determined as the amount of income from the sale (transfer) of this property, taking into account tax. In this case, the tax base is determined separately for each transaction involving the sale (transfer) of the specified property. In this case, tax agents are recognized as buyers (recipients) of the specified property, with the exception of individuals who are not individual entrepreneurs. These persons are required to calculate using the calculation method, withhold from paid income and pay the appropriate amount of tax to the budget.

4. When selling on the territory of the Russian Federation confiscated property, property sold by court decision (except for the sale provided for in subparagraph 15 of paragraph 2 of Article 146 of this Code), ownerless valuables, treasures and purchased valuables, as well as valuables transferred by right of inheritance to the state , the tax base is determined based on the price of the property (valuables) being sold, determined taking into account the provisions of Article 105.3 of this Code, taking into account excise taxes (for excisable goods). In this case, tax agents are recognized as bodies, organizations or individual entrepreneurs authorized to sell the specified property.

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

5. When selling goods, transferring property rights, performing work, providing services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities as taxpayers, carrying out entrepreneurial activities with participation in settlements on the basis of agency agreements, commission agreements or agency agreements with specified 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 (work, services), property rights, taking into account excise taxes (for excisable goods) and without including the amount of tax.

6. If, within forty-five calendar days from the date of transfer of ownership of the vessel from the taxpayer to the customer, registration of the vessel 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 vessel was sold to the customer, with including tax.

In this case, the tax agent is the person who owns the vessel 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 in paragraph 3 of Article 164 of this Code and transfer it to the budget.

The tax base is determined separately for each transaction involving the sale of goods (work, 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. In this case, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities that purchase goods (work, services) on the territory of the Russian Federation from foreign entities 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 the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by this chapter.

3. When federal property, property of constituent entities of the Russian Federation and municipal property are provided for lease on the territory of the Russian Federation by government and administrative 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, tax agents are the tenants of the specified property, with the exception of individuals who are not individual entrepreneurs. These persons are required to calculate, withhold from income paid to the lessor, and pay the appropriate amount of tax to the budget.

(see text in the previous edition)

5. When selling goods, transferring property rights, performing work, providing services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities as taxpayers, carrying out entrepreneurial activities with participation in settlements based on agency agreements, commission agreements or agency agreements with specified 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 (work, services), property rights, taking into account excise taxes (for excisable goods) and without including the amount of tax.

(see text in the previous edition)

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 subclauses 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 this case, the tax agent is the person who owns the vessel 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 in paragraph 3 of Article 164 of this Code and transfer it to the budget.

(see text in the previous edition)

8. When selling on the territory of the Russian Federation by taxpayers (except for taxpayers exempt from fulfilling taxpayer obligations 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 determined based on the cost of goods sold, determined in accordance with Article 105.3 of this Code, taking into account tax.

For the purposes of this Code:

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

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

waste paper is paper and cardboard production and consumption waste, rejected and out-of-use paper, cardboard, printing products, business papers, including documents with expired shelf life.

Of this paragraph, taxpayers-sellers who are exempt from fulfilling taxpayer obligations related to the calculation and payment of tax, and persons who are not taxpayers, make an appropriate entry in the agreement or primary accounting document or put the mark “Without tax (VAT)”. , 26.3, 26.5 of this Code calculate and pay tax on transactions of sale of goods specified in paragraph one of this paragraph, starting from the period in which these persons switched to the general taxation regime, until the day of occurrence of circumstances that are the basis for the loss of the right to exemption from execution obligations of the taxpayer or the application of appropriate special tax regimes.

(see text in the previous edition)

Art. 161 Tax Code of the Russian Federation regulates the procedure for calculating and paying VAT by tax agents. Below we will tell you who VAT agents are and answer the most common questions that arise when performing agency duties.

Who does Article 161 of the Tax Code of the Russian Federation classify as tax agents?

VAT agents, in particular, are recognized (clauses 1-5 Art. 161 Tax Code of the Russian Federation):

companies and individual entrepreneurs who buy industrial goods from foreign sellers who are not registered with the tax authorities of the Russian Federation;
tenants of state and municipal property;
buyers of property constituting the state treasury, the treasury of a constituent entity of the Russian Federation or a municipal entity;
sellers of confiscated property, property sold by court decision, ownerless valuables, treasures and purchased valuables, as well as valuables inherited by the state;
intermediaries involved in settlements and selling goods and services of foreign entities not registered with the Russian Federal Tax Service.

What responsibilities do VAT agents have?

The responsibilities of VAT agents are:

calculate VAT instead of the taxpayer;
withhold the calculated tax from his income;
transfer withheld amounts to the budget;
if it is impossible to withhold tax, notify the tax office in writing;
report the calculated tax to the Federal Tax Service by submitting the appropriate declaration.

The responsibilities of VAT agents arise not only for the payers of this tax. Neither the use of special regimes (STS, UTII, PSN, UST), nor exemption from VAT under Art. 145 or 145.1 of the Tax Code of the Russian Federation.

How do agents calculate VAT?

In all the above cases, VAT is calculated by the agent from the contract price.

When purchasing GWS from a foreign seller, the tax is calculated based on the contract price using a calculation rate of 18/118 or 10/110. If VAT is not taken into account in the agreed price, it must be calculated on top of the contract price, the contract price of the goods and works must be increased by it, and a rate of 18/118 (10/110) must be applied to this base. In this case, you must actually pay VAT at your own expense (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 3, 2012 No. 15483/11, see also letter of the Ministry of Finance of Russia dated November 12, 2014 No. 03-07-08/57178).

If you do not fulfill this agency obligation, you may be charged withheld tax, as well as penalties (resolution of the plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 57).

In a similar manner (i.e., taking into account VAT), the tax base is determined when renting or purchasing state (municipal) property.

Attention! Do not calculate tax if you rent property not from a government agency (municipal body), but from an organization holding the balance sheet (for example, a state unitary enterprise, municipal unitary enterprise). The latter perform the duties of a VAT payer independently (see letters from the Ministry of Finance of Russia dated December 28, 2012 No. 03-07-14/121, dated July 23, 2012 No. 03-07-15/87).

In other cases, the VAT base is calculated as in normal sales - as the cost of the goods, taking into account excise taxes and excluding VAT. Here the rates of 18% or 10% apply.

Do agents issue invoices?

All of the above agents must prepare invoices in 2 copies. But there are certain differences here.

Thus, agents - buyers of goods and services from foreign sellers, tenants and buyers of state and municipal property draw up invoices for themselves, indicating themselves as the buyer. They register one copy in the sales book, charging VAT for payment, the second (after payment of the tax) - in the purchase book, reflecting the deduction.

Agents - sellers of confiscated property and similar valuables, as well as agents - intermediaries of foreigners, issue invoices to buyers and hand over 1 copy to them.

The deadline for drawing up invoices for all agents is common - 5 calendar days from the date of purchase/shipment of goods and materials or payment/reception of an advance (clause 3 of Article 168 of the Tax Code of the Russian Federation, see also letter of the Federal Tax Service dated 08/12/2009 No. ШС-22-3/ 634@).

When do agents transfer VAT?

For almost all agents, there is a general procedure for paying VAT into the budget (as for taxpayers): 1/3 of the payment due no later than the 25th day of each month following the corresponding quarter.

An exception is the case of purchasing works or services from a foreign seller. Here you need to pay tax simultaneously with the transfer of income to the seller (paragraph 2, paragraph 4, article 174 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated April 23, 2010 No. 03-07-08/128). That is, you need to submit 2 payment orders to the bank at once: one to transfer money to a foreign counterparty, the other to pay VAT to the budget. Without the latter, the bank will not process the first.

The BCC for VAT payment can be found in the material.

Do agents have the right to deduction?

Agents have the right to deduction, but not everyone (clause 3 of Article 171 of the Tax Code of the Russian Federation). VAT agents can accept the calculated tax for deduction:

those who bought GWS from foreign sellers;
leasing or purchasing state (municipal) property.

The deduction can be applied based on the results of the period in which VAT was included in the budget, of course, if all other conditions for the deduction are met (clause 3 of Article 171, Article 172 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated January 26, 2015 No. 03-07- 11/2136, dated October 23, 2013 No. 03-07-11/44418).

If there has been an advance payment, “advance” VAT can be deducted only after the goods and services are entered into accounting (letter of the Ministry of Finance of Russia dated June 21, 2013 No. 03-07-08/23545).

Agents - sellers of confiscated property, as well as intermediaries of foreign persons, do not have the right to deduct VAT paid on these transactions.

Article 161. Features of determining the tax base by tax agents

The tax base is determined separately for each transaction involving the sale of goods (work, 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. In this case, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities that purchase goods (work, services) on the territory of the Russian Federation from foreign entities 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 the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by this chapter.

3. When federal property, property of constituent entities of the Russian Federation and municipal property are provided for lease on the territory of the Russian Federation by government and administrative 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, tax agents are the tenants of the specified property, with the exception of individuals who are not individual entrepreneurs. These persons are required to calculate, withhold from income paid to the lessor, and pay the appropriate amount of tax to the budget.

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

4.1. Lost power. - Federal “law” of November 24, 2014 N 366-FZ.

In this case, the tax agent is the person who owns the vessel 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 in paragraph 3 of Article 164 of this Code and transfer it to the budget.

7. For the purposes of this article, organizations that are foreign organizers of the XXII Olympic Winter Games and XI Paralympic Winter Games of 2014 in the city of Sochi purchasing goods (work, services), property rights on the territory of the Russian Federation for the purposes of organizing and holding the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi are not recognized as tax agents. Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi in accordance with “Article 3” of the Federal Law of December 1, 2007 N 310-FZ “On the organization and holding of the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi , the development of the city of Sochi as a mountain climatic resort and amendments to certain legislative acts of the Russian Federation", foreign marketing partners of the International Olympic Committee, including official broadcasting companies, in accordance with Article 3.1 of the said Federal Law, and branches, representative offices in the Russian Federation of foreign organizations , which are marketing partners of the International Olympic Committee, including official broadcasters, in accordance with Article 3.1 of the said Federal Law.

For the purposes of this Code:

raw animal skins are unprocessed (undressed) skins removed 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;

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

waste paper is paper and cardboard production and consumption waste, rejected and out-of-use paper, cardboard, printing products, business papers, including documents with expired shelf life.

The tax base specified in paragraph one of this paragraph is determined by tax agents, unless otherwise established by this paragraph. Tax agents are buyers (recipients) of goods specified in paragraph one 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 the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by this chapter or not.

When selling goods specified in paragraph one of this paragraph, taxpayer-sellers who are exempt from fulfilling taxpayer obligations related to the calculation and payment of tax, and persons who are not taxpayers, make an appropriate entry in the agreement or primary accounting document or put the mark “Without tax” (VAT)".

If it is established that the taxpayer-seller of the goods specified in paragraph one of this clause has incorrectly marked “Without tax (VAT)” in the contract or the primary accounting document, the responsibility for calculating and paying tax is assigned to such taxpayer-seller of goods.

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

The tax base is determined separately for each transaction involving the sale of goods (work, 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. In this case, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities that purchase goods (work, services) on the territory of the Russian Federation from foreign entities 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 the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by this chapter.

3. When federal property, property of constituent entities of the Russian Federation and municipal property are provided for lease on the territory of the Russian Federation by government and administrative 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, tax agents are the tenants of the specified property, with the exception of individuals who are not individual entrepreneurs. These persons are required to calculate, withhold from income paid to the lessor, and pay the appropriate amount of tax to the budget.

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

In this case, the tax agent is the person who owns the vessel 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 in paragraph 3 of Article 164 of this Code and transfer it to the budget.

For the purposes of this Code:

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

waste paper is paper and cardboard production and consumption waste, rejected and out-of-use paper, cardboard, printing products, business papers, including documents with expired shelf life.