In publications there is a speech about advantages and shortcomings of the conclusion of different types of contracts on realization of production production in the light of optimization of the taxation of cooperatives.
One of the problems arising before neogenic agricultural cooperatives, the organization of contractual work is so that the tax load on cooperative didn’t ruin association of producers. Complexity of the correct organization of economic relationship with members of cooperative and other persons speaks that almost all members of agricultural serving cooperatives have certain tax concessions as agricultural producers. At the same time, the majority of agricultural serving cooperatives works under general conditions the taxation. Only some of them are registered as the non-profitable organizations, and thus in their activity often there are questions concerning types of operations which aren’t subject to taxation on profit.
Governing bodies of neogenic agricultural serving cooperatives have such choice of ways of realization of production of the members:
1) to realize production of members of cooperative on the basis of purchase and sale contracts, that is with transition of an ownership right to production to cooperative or on the basis of other contracts (the commission, an assignment, etc.);
2) to render services to members of cooperative or to receive from them the membership fees.
The similar question arises and when purchasing material resources, but after all more often agricultural serving cooperatives are created for the general realization of production.
The elementary way – sale of finished product through cooperative with use of contracts of purchase and sale and delivery: the purchase and sale contract for production purchase at members of cooperative who aren’t legal entities or businessmen, and deliveries at acquisition of agricultural production at subjects of managing or production sale to subjects of managing.
As a rule, when purchasing material resources through cooperative with use of contracts of delivery and purchase and sale it can be registered by the payer of the VAT, and also pay the profits tax. It is necessary to take into consideration Art. 2 of the Law of Ukraine "About a value added tax" according to which the payer of the VAT it can surely be registered:
1) the person, volume of taxable operations on sale of the goods (works, services) which throughout any period from last 12 calendar months exceeded 3600 not taxed minima of the income of citizens (61,2 thousand UAH.);
2) the person who carries out on custom territory of Ukraine an entrepreneurial activity on trade in cash irrespective of sale volumes, except for individuals who carry out trade on the terms of payment of market collecting in an order established by the legislation;
3) some other categories of persons.
At the same time, at purchase and sale of agricultural production of members of cooperative it is necessary to consider the following:
1) not all members of agricultural serving cooperatives are payers of the VAT and consequently when purchasing production at members of cooperative who aren’t payers of the VAT, the cooperative doesn’t get the driver’s license to the tax credit. And it means that the price of realization of production can be, at least, for 20 % more purchasing. Earlier to such operations with defaulters of the VAT item 11.20 of the Law of Ukraine "About a value added tax" according to which till January 1, 2004 in cases when the taxpayer carried out operations on sale to defaulters of the VAT of agricultural production and products of its processing, before acquired (prepared) individuals – defaulters of the VAT, the taxation object had a trading margin (extra charge) was applied. Now period of validity of this privilege ended;
2) when purchasing agricultural production at persons who conduct a family country household, it is necessary to apply a special order of the taxation of the income of individuals. First, according to item 4.3.36 of the Law of Ukraine "About a tax on the income of individuals" (Law point in edition from March 4, 2004) the income of sale of the agricultural production which has been grown up (made) isn’t taxed: on the land lots provided for maintaining a family country household, if their size wasn’t increased as a result of received in nature (on the district) gave a particle (share); on the land lots provided for construction and service of a house, economic buildings and constructions (personal plots); on the land lots provided for conducting of gardening and individual country construction). Secondly, the tax explanation concerning the taxation of the income of individuals from sale of the agricultural production, approved by the order of the Public tax administration of Ukraine from January 29, 2004, No. 53 according to which it is possible to carry out agricultural products purchase directly in a place of its cultivation (production) on the basis of agreements of purchase and sale which are made out by bilateral purchasing acts in writing, or purchasing data of the buyer which such data should contain now operates: an agreement detention center, a surname, a name, a patronymic of the seller, his identification number (in the absence of identification number – data from the passport of the seller), data of the State act (reference) concerning an ownership right (using) the earth, production name, the price of a unit of production, volume of sold production, the sum of the paid means, the signature of the seller about receiving means.
From this it is possible to draw a conclusion that from the income which are paid to members of a family country household, the cooperative can hold a tax at a rate of 13 % only in case the copy of the state act or the reference of the Village Soviet testifies that the land lot provided for maintaining a family country household, was increased by the size of a ground share.
Commission and assignment contracts
One of contracts which can be applied by cooperative at realization of production of his members, the commission contract is.
To it one party (commission agent) undertakes by proxy the second party (committent) for a payment to make one or several legal actions on its own behalf, but at the expense of the committent (Art. 1011 of the Civil code of Ukraine).
Under the assignment contract one party (attorney) undertakes to make on behalf of and at the expense of the second party (principal) certain legal actions (Art. 1000 of the Civil code of Ukraine). The main difference between the contract of the commission and the assignment contract: under the commission contract the commission agent carries out actions on its own behalf, and under the assignment contract – on behalf of the principal.
The legislation established a special order of the taxation of the VAT in transactions of commission and assignment contracts. According to item 4.7 of the Law of Ukraine "About a value added tax", in cases when the taxpayer carries out activities for sale of the goods received within contracts of the commission (consignment), poruyachitelstvo, instructions, trust management, other civil-law contracts which authorize such taxpayer (further – the commission agent) to carry out sale of the goods from the face and by proxy other person (further – the committent) without transfer of property on such goods, taxation basis is the selling cost of these goods defined in an order, established by this Law. Date of increase in the tax obligations of the commission agent the date determined by rules, established point 7.3 of this Law, and date of increase in the sum of the tax credit of the commission agent – date of transfer of means in favor of the committent, or granting to the last of other types of compensation of cost of the specified goods is considered. Thus date of increase in the tax obligations of the committent is the date of receipt of means or other types of compensation of cost of the goods from the commission agent.
The order of charge of the VAT specified in item 4.7 leads to that, as well as at purchase and sale, to cooperative is unprofitable to realize production of members of cooperative which aren’t payers of the VAT as after charge of obligations with the VAT the cooperative won’t have the right to the tax credit.
At the same time, under the assignment contract the cooperative can assume only a part of functions on sale of goods: for example, conclusion of contracts. In case production isn’t made out through cooperative, and means will be listed by the buyer to his members the tax obligations of cooperative will pay off only from the sum of compensation received from the members.
Contracts on service
In certain cases the cooperative can not be engaged in realization of production of the members but only to render certain services in production realization. Under the contract on service one party (performer) undertakes to render service which is made in the course of a certain action or implementation of a certain activity on the instructions of the second party (customer), and the customer undertakes to pay to the performer the specified service if another isn’t established by the contract (Art. of 901 Central Committee of Ukraine). Such services can treat: search of buyers, organization of the conclusion of contracts, organization of a reception-transmission of production, etc.
In particular; to cooperative the transportation contract on which the cooperative delivers production to the buyer can be interesting and transfers it thus means for production are recalculated directly to the member of cooperative.
Production realization with application of contracts about rendering of services has such shortcomings:
1) members of cooperative should take part in registration of all documents constantly;
2) the buyer can sign contracts and accept agricultural production at several members of cooperative, instead of at one supplier – agricultural serving cooperative.
When using contracts on service the agricultural serving cooperative can and not be registered the payer of the VAT at small volume of operations.
Article of the lawyer of the Project of agrarian marketing of Ukraine of A.Nikonenko from the magazine "Agrooglyad: ovochi that fruit © 2003-2006, razmeshhennayanasajtepri direct cooperation of the Ministry of an agrarian policy of AR Crimea.