Who pays VAT - buyer or seller? Question from the category of philosophical. Its payers are sellers, but in reality it is kept out of the buyer's pocket, since it is included in the price. This is further complicated by the fact that for each VAT payer there are two options: a tax payable to the budget, and one that is paid to suppliers as part of the price for goods and services purchased from them.
Typically, the contract directly indicates that the price includes VAT, and also reflects its amount. But sometimes the parties miss this moment, because of which additional risks arise - from conflicts with contractors to litigation.
Tax mechanism
The object of taxation is sales operations, including free transfer. By default, any sale should be subject to VAT, unless it applies to the exceptions that are specified in the Tax Code. In addition, if an entity falls under certain conditions, among which the main is a small amount of revenue, then there may be an exemption from VAT. In this case, the duties of the payer are removed from him, and the goods and services sold by him are not subject to this tax.
VAT payers are organizations and entrepreneurs who apply the basic taxation system (OSNO). The law requires that they add the amount of this tax to the value of the goods and present them to buyers for payment. Typically, tax is included in the price and highlighted in documents as a separate line. In this case, the question of who pays VAT, the buyer or seller, is not worth it. Having received funds from the buyer, the seller-taxpayer must transfer the tax to the budget. At the same time, he has the right to reduce the tax payable by the amount of input VAT that suppliers show him in the price of goods and services.
Simple practice
To avoid any discrepancies, most often the amount of tax is calculated in advance and allocated in documents as a separate line. That is, the provision of the contract regarding the price is usually written something like this: the cost is 236,000 rubles, including VAT of 36,000 rubles. This is true if an object subject to VAT is sold and the seller is its payer, that is, does not apply a tax exemption or any special regime.
Who should pay VAT - the buyer or seller - in this example? Such a record implies an unambiguous interpretation. The final cost of the transaction is indicated, VAT is included in this amount - its seller will have to transfer to the budget.
If there is no tax in the contract
Sometimes, for any reason, the parties to the transaction miss the need to reflect the tax clause in the contract. Then the question arises as to whether its amount is included in the price. In other words, who pays VAT - the buyer or seller - if VAT is not indicated in the contract?
On the one hand, the Tax Code stipulates that the seller charges VAT in addition to the cost of goods or services. This may give the impression that the price in the contract can be indicated without taking into account tax, because it should be charged “from above”.
On the other hand, the Civil Code requires that the price specified in the contract be final. If the seller “forgot” to include tax in it, then this should not be the buyer’s problem.
Therefore, according to current practice, confirmed including by court decisions, the absence of a mention of VAT in a contract becomes a seller’s problem.After all, it is he who is the taxpayer, which means he is obliged to provide all the conditions for paying tax to the budget.
What to do if the seller “forgot” about the tax
So, in the interests of the parties to correctly register the terms of the contract in terms of VAT. But it happens that this moment is missed. Who pays VAT - buyer or seller - in such circumstances? This issue is decided by agreement. Well, if the buyer agrees to pay the amount of tax in excess of the value of the contract. In this case, you can draw up an additional agreement.
However, the buyer may refuse, and the law will be on his side. The seller will not be able to claim the payment of tax in such a situation even through a court. In this case, the arbitrators will be guided by the decision of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33. In paragraph 17 of this document it is stated that the amount of tax should be taken into account when determining the final price of the contract.
Therefore, all that remains to be done under such circumstances to the seller is to pay VAT from their own pockets.
How to calculate tax if nothing is said about it in the contract
So, in the contract there is no mention of VAT. How in this case to calculate the tax? This will depend on what the parties agreed on: who pays VAT, the buyer or seller.
If the buyer agreed to pay tax additionally, then there are no special features in the calculation. VAT will be equal to 18% (10%) of the transaction amount. If the buyer refused, the seller should allocate tax from the amount received from him. In this case, the so-called settlement rate is accepted. It is equal to 18/118 or 10/110, depending on the rate at which the transaction object is taxed.
Let us illustrate with an example. The seller is a VAT payer, but the buyer is not. The contract indicates the value of 590,000 rubles, while there is no mention of VAT. The seller asked the buyer to pay tax at a rate of 18% in excess of the price specified in the contract, but was refused.
In this case, it will be considered that the price indicated in the contract already includes VAT at a rate of 18%. The calculation will be as follows:
590,000 * 18/118 = 90,000 rubles - the amount of VAT;
Accordingly, the seller’s income after tax is 500,000 rubles.
If one of the parties applies the simplified tax system
A fairly common situation is when one of the parties to the transaction uses the simplified tax system. Who pays VAT for "simplification" - the buyer or seller?
In the general case, the simplified supplier does not pay VAT, therefore the tax is not charged and is not included in the price. The exception is individual operations, as well as situations where the buyer asks the seller to “simplify” the tax in the documents. In this case, the seller will be required to pay tax, despite the fact that he uses the simplified tax system. Payment is due on the tax allocated by the seller on the invoice.
Another example is when the seller is on the OSNO and the buyer is on the USN. The sale of goods to a non-payer of VAT does not relieve the seller of the obligation to pay this tax. Therefore, it is advisable to indicate the amount of the transaction in the documents and allocate VAT. For the buyer on the USN this does not entail any consequences - he must pay the total amount specified in the contract.
When is the tax paid by the buyer?
Sometimes the terms of the contract contain a provision that the price is reflected without VAT. Under such conditions, who pays VAT - the seller or the buyer? If in this case the opposite does not follow from the circumstances of the transaction or other conditions of the agreement, then the buyer must pay the amount of tax in addition to the price indicated in the contract. Such an explanation is contained in the above resolution of the Plenum of the Supreme Arbitration Court No 33.
So, the solution to the question of who pays VAT - the buyer or seller, if the contract does not mention the tax - depends on specific circumstances. In most cases, this obligation remains with the seller. Clearly state in the contract the conditions associated with this tax in the interests of both parties.However, a greater degree of caution must be shown to the seller, because ignorance or forgetfulness can get him a pretty penny.