GNAU letter from 07.11.07g is published. No. 22703/7/16-1117 in which answers on single questions of collection of a value added tax are given.
GNAU letter from 07.11.07 of No. 22703/7/16-1117
(Extraction)
The public tax administration of Ukraine sends for data and use in work answers on single questions of collection of a value added tax which most often arrive from taxpayers and employees of bodies of national tax service.
Vice-chairman L. BOENKO
I.Obshhie questions
2. The payer free of charge received the goods from the nonresident. What order of formation of the tax credit? Whether join in structure tax kredita the sums of a value added tax paid at a customs clearance of such goods?
According to subparagraph 7.4.1 of point 7.4 of article 7 of the Law on the VAT the tax credit of the reporting period is defined proceeding from contractual (contract) cost of the goods (services), but not above level of the obychyony prices in case contractual price of such goods (services) differs more than for 20 percent from the usual price for such goods (services), and consists of the sums of the taxes, added (paid) by a nalogoyoplatelshchik on a rate established by point 6.1 of article 6 and article 81 of this Law, during such reporting period in connection with, in particular, priobreteyoniy the goods (including at their import) for the purpose of their further use in taxable operations within economic activity of the taxpayer.
Thus, as at a gratuitous poyolucheniye of the imported goods there is no fact of acquisition of the goods as it is provided in podpunkte 7.4.1 point 7.4 of article 7 of the Law on the VAT, the right to the tax credit on such import goods at the payer is absent.
4 whether. The tax credit on the priobreyotenny equipment which is provided in rent is formed?
According to subparagraph 7.4.1 of point 7.4 of article 7 of the Law of Ukraine About a value added tax the tax credit of the reporting period is defined proceeding from contractual (contract) cost tovarov (services), but not above level of the usual prices in case contractual price of such goods (services) otlichaetsya more than for 20 percent from the usual price for such goods (services), and consists of the sums of the taxes, added (paid) by the taxpayer on a rate established by point 6.1 of article 6 and the stayoty 81 this Law, during such reporting period in connection with: acquisition (construction, a construction) fixed assets (fixed assets, including other non-turnaround material assets and incomplete capital investments into neoborotyony capital assets), including at their import, with a view of further use in production and/or delivery of the goods (services) for taxable operations within economic activity of the taxpayer.
Taking into account that that service on rent of the equipment is taxable operation within economic activity of a nalogoplayotelshchik, the value added tax sum, the added oboruyodovaniye (paid) at acquisition with a view of its transfer to operative rent, can be included in structure of the tax credit in a generally established order.
Thus it is necessary to consider that at definition of base of taxation on the added cost at service on rent follows rukovodstvovatsya requirements of point 4.1 of article 4 of the Law according to which the taxation basis of operation is determined by delivery (services) proceeding from their contractual (contract) cost determined by free prices, but not below the usual prices.
FROM EDITION
Cession of property in rent isn’t object of taxation of the VAT according to subitem 3.2.2 of the Law on the VAT. In this regard quite often there was a problem from the Tax Code on the property transferred in rent, namely: on places on such property didn’t recognize the right to the Tax Code on the basis of Law subitem 7.4.2 (this problem was shined in "Balance", 2006, No. 7, page 47).
The similar situation developed in due time and from the Tax Code on the property transferred in pledge. This letter once again confirms that the lessor has a right to the Tax Code (concerning property, peyoredanny as a deposit, see GNAU letter from 05.05.06 of No. 8537/7/16-1517-15 in "Balance", 2006, No. 23).
15. The payer returns object of financial leasing. Whether such operation is assessed with a value added tax?
According to subparagraph 3.1.1 of point 3.1 of article 3 of the Law of Ukraine About a value added tax (further – the Law) operations on transfer of object of fiyonansovy leasing to using to a lizingopoluchatel (tenant) are object of taxation on the added cost.
Thus date of emergence of the tax obligations of the lessor (lessor) for operations of finanyosovy rent (leasing) is date of the actual transfer of object of a finance lease (leasing) in using to the tenant (lizingopoluchatel) (subparagraph 7.3.4 of point 7.3 of article 7 of the Law).
According to the Law of Ukraine About a nalogoobloyozheniye of profit of the enterprises financial leasing (rent) – economic operation of the physical or legal entity which provides in a sootyovetstviye with the contract of financial leasing (rent) transfer to the tenant of property which falls under definition of fixed assets according to article 8 of this Law acquired or made by the lessor, and also all risks and the compensations connected with a right of use and possession of object of leasing.
Leasing (rent) is considered financial if the lizinyogovy (rent) contract contains one of such conditions, in particular, the object of leasing is transferred to term during which not less than 75 percent of its initial cost on the norms of amortization defined by article 8 of this Zakoyon will be amortized, and the tenant is obliged to get object of leasing in a property during period of validity of the leasing contract or at the moment of its termination at the price, opreyodelenny in such leasing contract.
Taking into account the object of a financial liyozing specified return for the purpose of the taxation it is considered as sale of the object acquired on the terms of finanyosovy leasing, and it is taxed on dobavlenyony cost in a generally established order.
FROM EDITION
So, at return of object of financial leasing the lizingopoluchatel charges BUT, as at usual sale. It is a pity that the base of a nalogoyooblozheniye isn’t specified, after all in tax accounting amortization was charged.
We suggested not to charge in this case BUT, and to reduce the Tax Code ("Balans-Agro", 2007, No. 5, page 24) as, in fact, there is a partial return of object of leasing (regarding nedoamortizirovanny cost). That is on the basis of item 4.5 of the Law on the VAT the lessor in this part reduces But also makes out adjustment calculation to the tax consignment note, and the lizingopoluchatel reduces the Tax Code.
16. In what cases the payer can apply the cash tax accounting method of a tax on dobavyolenny cost?
According to subparagraph 7.3.9 of point 7.3 of article 7 of the Law the person who within the last twelve calendar months had taxable postavki less than 300 thousand UAH. (without this tax), can choose the cash tax accounting method.
If the specified choice is carried out during a reyogistratsiya of such person as payer of this tax, the cash method starts to be applied from the moment of such registration and can’t be changed until the end of the year during which such registration took place.
If the specified choice is carried out during any time after registration of the person as payer of this tax, the cash method starts to be applied with the tax period following the tax period in which such choice was made, and can’t be changed during sleduyuyoshchy to twelve monthly (four quarter) the tax periods.
Application of a cash method stops since the naloyogovy period following the tax period during which the taxpayer makes the independent decision on transition to the general pravilam of definition of date of emergence of the tax obligations and the tax credit (a method of charges) or reaches 300 thousand UAH. volume of taxable operations.
The taxpayer has the right independently otkazatsya from a cash method upon termination of the minimum term of stay on a cash method by a vysylaniye of the corresponding statement to taxing authority in a place of tax registration.
At achievement of 300 thousand UAH. volume of nalogooblagayeyomy operations the taxpayer is obliged to refuse a cash method by a vysylaniye of the corresponding statement to taxing authority in which it is registered as the taxpayer, together with the tax declaration on a tax on dobavyolenny cost by results of reporting (nalogovogo) the period in which 300 thousand UAH were reached. volume of taxable operations.
In case of not representation by the taxpayer of such statement in established periods the taxing authority should transfer the sum of the tax obligations and the tax credit of such taxpayer nayochiny since the tax period on which limiting date of submission of its declaration of abandonment of a cash method falls, and the taxpayer loses the right of use of a cash method within the next 36 tax months.
II. Concerning registration of payers of a value added tax
1 whether. Obligatory to the subject of a small predprinimayotelstvo to be registered the payer of the VAT in sluchae transition to the simplified system the nalogooblozheyoniya, the account and the reporting on a rate of 6 percent?
By point 4 of the Presidential decree of Ukraine from 03.07.98 of No. 727/98 About the simplified system a nalogooblozheyoniya, the account and the reporting of subjects of a small predpriyonimatelstvo it is established that the simplified system of the taxation, the account and the reporting can be applied to subjects of small business naryadu with operating system of the taxation, the account and the reporting provided by the legislation, on a choice of the subject of small business.
Thus according to point 6 of this Decree subekt small business which passes to the simplified system of the taxation, account and otchetnosti, independently chooses one of two flat tax rates: 6 or 10 percent. Also it is necessary to note that the simplified system of the taxation, the account and the reporting with application of a rate of 6 percent provides obyayozatelny registration and payment by such subject of uproyoshchenny system of the taxation of a value added tax according to the Law of Ukraine from 03.04.97 of No. 168/97-BP About a value added tax
Taking into account the aforesaid in case of transition of a nalogoplayotelshchik to the simplified system of the taxation, the account and the reporting on a rate of 6 percent such nalogoplayotelshchik is obliged to present without fail the statement for registration by the payer of a value added tax according to trebovaniyami point 6 of the Presidential decree of Ukraine from 03.07.98 of No. 727/98 About the simplified system of the taxation, the account and the reporting of subjects of small business and in an order provided by the Provision on registration of payers of a value added tax, the utverzhyodenny order of the State tax adminisyotratsiya of Ukraine and registered in the Ministry of Justice of Ukraine from 03.04.2000 at No. 208/4429.
V. About single questions of application of the special tax treatment of agricultural producers and the processing enterprises
1. What order of definition of the sums of the VAT which are subject to transfer by agricultural producers to separate spetsialyyony accounts for target use?
Subparagraphs 11.21 and 11.29 of article 11 of the Law of Ukraine About a value added tax from 03.04.97 of No. 168/97-BP, with changes and additions (further – Zayokon), is established a special mode of taxation on the added cost of agricultural tovaroyoproizvoditel and processing enterprises.
The order of application of the established legislative norms is regulated by Office resolutions Ministyorov Ukrainy from 26.02.99 of No. 271 and from 12.05.99 of No. 805 (taking into account the brought changes):
• About the Order of accumulation and use of means, koyotory are charged by agricultural tovaroproyoizvoditel – payers of a value added tax concerning operations on sale of the goods (works, services) own production, including a proyoduktsiya (except the excisable goods), made on davalchesky conditions from own selskokhozyaystyovenny raw materials (further – the Order No. 271);
• About the Order of charge, payments and uses of the means directed for payment of grants to selskoyokhozyaystvenny producers for sold by them to the processing enterprises milk and meat in live weight (further – the Order No. 805).
According to item 4 of the Order No. 271 and Order No. 805 item 12 the rest of the tax obligations according to the declaration on a value added tax on realized specified production, that is the difference between a value added tax received from buyers, and a value added tax, to the paid suppliers, is listed predpriyatiyoy of flowing into the separate account.
The specified funds not transferred into the separate account are considered such which are used not on a designated purpose, and are subject to collecting in the government budget in an indisputable order.
Besides, the specified order of definition of the sums of the VAT which are subject to transfer to special accounts, podtverzhdaetsya subitem. 4.4.4 the order of the Public tax administration of Ukraine and the State committee of statistics of Ukraine from July 23, 2004 of No. 419/453 (with changes and additions) About the statement formy the report of No. of 1-software, the Instruction on an order of its filling and Rules of the accounting of a value added tax with a view of improvement of calculation cost velichiny influences of privileges on this tax on formation of revenues of the Government budget of Ukraine according to which positive value of a difference between the sums of the tax obligations and the tax credit, reflected in the separate declaration, perechislyaetsya into the special account of agricultural producers also remains at their order for the direction respectively in support of own production of cattle-breeding production and production of poultry farming and/or on acquisition material texnicheskix resources of production appointment.
According to the specified Order and with a view of a povyyosheniye of efficiency of control on a target ispolyyozovaniye of the sums of a value added tax selyyoskokhozyaystvenny producers who used the special tax treatment, the joint letter of GNAU and Minagropolitika from 24.09.03 of No. 14884/7/15-2317 No. 37-21-1-12/10699 finished form and content of the Reference of rather target use of the sums of the VAT, which predstavlyaetsya in body of tax service at the same time with a deklarayotsiya on a value added tax (special) on a contracted form (further – the Reference).
The specified Reference provided interrelation of the mechanism of accumulation of means of a tax on dobavyolenny cost which should arrive into the special account and to be used on a designated purpose, and movements of means on bank schetam agricultural producers who really arrived in the reporting period on the bank account of the payer as a value added tax from buyers of the goods (works, services),
FROM EDITION
The edition comment to the letter with a similar razjyoyasneniye see in "Balans-Agro", 2006, No. 12, page 5.
3. What order of charge and payment in the current year grants the processing enterprises to agricultural producers for the milk put to them and meat in live weight?
By point 11.21 of Art. 11 of the Law of Ukraine from 03.04.97 of No. 168 About a value added tax (taking into account the brought changes) it is provided that till January 1, 2008 the sum of a value added tax which should be paid in the budget:
• the processing enterprises of all forms of ownership for realized by them milk and moyolochny production, meat and meat products, only for payment of doyotatsiya to agricultural producers for sold by them to the processing enterprises milk and meat in live weight in full goes;
• agricultural enterprises of all forms of ownership for the milk realized by them, cattle, a bird, wool, and also for dairy production and myasoprodukty, made in own pererabayotyvayushchy shops, completely remains at the disposal of these agricultural enterprises and napravlyaetsya in support of own production of zhivotnoyovodchesky production and poultry farming production.
The order of charge, payments and use of the means directed for payment of grants to agricultural producers for put by them to the pererabatyyovayushchy enterprises milk and meat in live weight (further – the Order) is approved by the resolution of Cabinet council of Ukraine from 28.03.07 of No. 596 in the new edition.
By point 5 of the called Order it is established that the perechisyoleniye of means to agricultural tovaroproizvodiyotel for the milk put by them and meat in live weight is carried out according to payment orders from a current account of the processing enterprise for the prices according to the signed contracts, and the sums of grants – from its off-budget account opened in territorial organe of the State treasury (further – the off-budget account), into separate accounts of agricultural tovaroproyoizvoditel (except what conduct a personal country economy) which they should open in serving banks within one reporting period.
Payment to personal country farms of cost posyotavlenny them to the processing enterprise of milk and meat in live weight and payment of grants are carried out by cash directly from cash desk of the pererabatyvayuyoshchy enterprise or according to assignment contracts.
4. What term of providing the conclusion body of national tax service concerning confirmation of the sum of excess tax kredita over the sum of the tax obligations which is subject to transfer overworking predyopriyatiy from the off-budget account on a current account?
Confirmation of the amount of excess of the sum of the tax credit on the VAT over the sum of the tax obligations which is subject to transfer by the processing enterprise from the off-budget account on a current account, is carried out by providing the conclusion by a national tax service oregano. The conclusion is provided in terms and an order, predusmotrenyony for the budgetary compensation, namely soglasyono to item 7.7 of Art. 7 of the Law of Ukraine from 03.04.97 of No. 168 About a value added tax (with changes).
5 whether. The processing enterprise ispolzovat the off-budget account for other calculations, except payment of grants to agricultural producers can?
According to the Order of charge, payments and uses of the means directed for payment of grants to selskokhoyozyaystvenny producers for put by them to the processing enterprises milk and meat in live weight, approved by the resolution of Cabinet council of Ukraine from 28.03.07 of No. 596, off-budget accounts are open by the processing enterprises for the purpose of transfer of the sums of a value added tax for payment of grants to agricultural producers for the milk put by them and meat in live weight and can’t be used for other calculations.