Art. 148 of the Tax Code of the Russian Federation "Place of sale of works (services)"

As you know, when selling products, services, works, an enterprise is obliged to charge VAT. However, this requirement applies only to cases when activities are carried out within Russia. In this regard, before starting the calculation, you should determine the place of implementation of work, services, products. As a rule, this process is not accompanied by difficulties. But in some cases difficulties may arise. For example, they are possible when goods are transported across the border, the products are located for a long time in the territory of another country, or a non-resident of Russia acts as one of the parties to the agreement.

Relevance of the issue

According to Art. 146 of the Tax Code, the object of VAT is the sale of goods within Russia. In this case, the subject implementing them does not matter. It can be both domestic and foreign enterprise. The main thing in this case is to establish the territory on which the sale takes place. If the buyer of the services is a foreign company, then certain difficulties may arise. To determine the territory of sale of products, the provisions of Article 147 of the Code should be used. Other activities are regulated Art. 148 Tax Code of the Russian Federation. Consider the application of these standards in more detail, as well as cases in which difficulties may arise.

Section 147

The products are tangible assets that are sold or intended for this. This definition is enshrined in Art. 38 (paragraph three) of the Code. In order for the territory of Russia to be recognized as a place of sale, a number of conditions must be observed. They are prescribed in Article 147. First of all, products must be located in the country, not shipped and not transported outside its borders. This requirement is satisfied if real estate is sold. These are buildings, structures, squares in them. Secondly, products at the time of the beginning of the movement or shipment abroad should be in Russia.

Explanation

A foreign company may sell real estate located in Russia. This, in accordance with Article 147, means that the territory of the transaction is the Russian Federation. This position is supported by the Ministry of Finance Letter No. 03-07-08 / 254 of 11/13/2008. If a domestic enterprise acquires products abroad and sells them there, then it does not enter Russia. Accordingly, the Russian Federation cannot act as a territory for concluding a deal. In this case, the condition established by Article 147 that the object must remain in the country at the beginning of shipment or transportation is not fulfilled. In transit of material assets through the territory of Russia, when a domestic company acquires them in one state and sells them in another, the provisions of the norm are also not observed. This is confirmed by Art. 151. It says that in the process of moving products in transit customs regime VAT is not deductible.

Branch Sales

If a domestic company sells products to a foreign company through its representative office located in another state, it should specifically determine where the movable property was located at the time of the transaction. This is fundamentally important when determining the territory for concluding a contract. Products can be located in the main office, shipped to a subsidiary or already be in it.

In the Letter of the Ministry of Finance No. 03-04-08 / 61, explanations are given in this regard.If an enterprise takes objects to the state where its branch is located, which will subsequently sell this movable property, this means that Russia will be recognized as the territory for the transaction. According to the explanations of the Federal Tax Service, if the contract is concluded after the material values ​​have been delivered, then this condition is no longer complied with. Accordingly, in the latter case, the territory of the transaction will be considered a foreign state.

Summarizing the above, we can draw the following conclusion. The territory for the sale of products will be the foreign country in which the representative office of the domestic enterprise is located if, before signing the agreement on its acquisition by a foreign partner, she was already in the branch or was shipped from the main office for this.

Important point

If an enterprise wants a foreign state to be recognized as a place of sale, it is necessary to correctly and, very importantly, draw up a supply agreement in a timely manner. There are situations when a foreign company wants to purchase objects in a branch, but they are not in stock at that moment. In this case, in order for a foreign country to be recognized as the territory of sale, it is necessary to draw up a supply agreement not by the number when the acquirer contacted the representative office, but by the date when the consignment arrived at his warehouse.

Art. 148 of the Tax Code of the Russian Federation (current version)

In accordance with the general rule, Russia is recognized as the territory of the transaction if the seller is present in the country. This provision is secured in paragraph 1 of Art. 148 of the Tax Code of the Russian Federation (Subp. 5). The state registration of the enterprise acts as confirmation. In case of its absence, the evidence will be the information of the constituent documentation, as well as the address of the location of the permanent establishment. For individual entrepreneurs, registration is a confirmation. These provisions are fixed in paragraph 2 of Art. 148 of the Tax Code of the Russian Federation. In the third paragraph there is an indication of supporting activities. In such cases, the place of sale of the main service or work acts as the territory for concluding the transaction. For example, an enterprise engaged in the repair of premises may additionally take out construction waste. This provision applies if the organization implements several types of services / work in accordance with the contract.

Exceptions

They are indicated in sub. 1-4 points of the first art. 148 of the Tax Code of the Russian Federation. Exceptions include:

1. Transfer, granting of patents, trademarks, licenses, copyrights or other similar rights.
2. Development of computer programs, databases, their adaptation and modification.
3. The provision of consulting services, the implementation of accounting, legal, engineering, advertising, marketing activities or related to information processing. An exception is the conduct of scientific research, development research. Engineering consulting services are recognized as being provided in the process of preparing production lines and selling products, construction and operation of infrastructure, industrial, agricultural and other facilities, design and pre-design activities. Procedures related to the processing of information are considered to be the collection and synthesis of data, the systematization and presentation of the results at the disposal of the user.
4. Rental of movable property, except for land vehicles.
5. The provision of staff. This exception occurs if employees are located in the acquirer's territory.
6. The provision of agency services by an entity attracting a third-party participant on behalf of the main party.

In these situations, the transaction is considered to be concluded on the territory of the direct holding of certain events. It may also be the location of material assets associated with the provision of services or work, or the address of the acquirer.

Special cases

In the first paragraph of Art.148 of the Tax Code of the Russian Federation identified other exceptions. They relate to activities and procedures that are directly related to wealth. According to the provisions of the norm, the territory of the transaction is the address of the location of objects. Exceptions are also restoration work, activities related to tourism, sports, recreation, physical education, and education. By sub. 3, the territory of the transaction is the address of their implementation. At the same time, it must be taken into account that holding conferences, seminars, advanced training courses, symposia are not considered educational events. In this regard, the territory of their implementation should be determined in accordance with the general rules.

Tourism industry

Often, entrepreneurs have difficulties in establishing the territory of the transaction under Art. 148 of the Tax Code of the Russian Federation. Non-taxable transactions in such cases will include accommodation, catering, accommodation and everything else that is provided to the client abroad. In this case, the territory for concluding transactions is a foreign state. As for the cost of services that are provided to a citizen in Russia, VAT is charged. These include, in particular, insurance, issuance of documents. In this case, the territory of the transaction is Russia.

Transportation

Another exception is transportation. In its implementation, the definition of territory will depend on a number of factors. First of all, for Russia to become a place of sale, it is necessary that services be provided exclusively by domestic companies. For transportation carried out by foreign enterprises, VAT is not charged. In addition, it is necessary that at least one point between which transportation is carried out be in Russia. If these conditions are met, the territory of the transaction will be considered the Russian Federation.

A somewhat different situation occurs when transporting goods that are placed under the regime of customs international transit. In this case, only the first condition is taken into account. The definition of the territory of the transaction is determined by this rule: where the seller is, there it will be.

Table

It will allow you to clearly present the provisions of Art. 148 of the Tax Code:

Tax Agent Responsibilities

Judicial practice under Article 148The Tax Code of the Russian Federation shows that entities acting as acquirers in a transaction with foreign enterprises that are not registered as payers of contributions to the budget, forget that if the territory for signing the agreement is Russia, they must withhold VAT from the seller’s funds. It will not matter if they themselves are payers of this tax or not.

The amount of deduction is determined at the rate of 18/118 (10/110) in accordance with Article 164 of the Code. In this case, experts pay attention to the fact that not all objects are subject to taxation. The company must be guided by Article 149. In addition, it should be remembered that under Art. 174, paragraph 4 of the Tax Code, the payment of mandatory payments to the budget is carried out at the same time as the payment of income to a foreign company. To carry out these operations, two payment orders are sent to the banking organization. One paper is intended to transfer the proceeds of a foreign company, the other - for the payment of tax.

Required Documentation

In order for the determination of the territory of the transaction to be considered legitimate, a certain package of supporting papers should be collected. To such documents under Art. 148 of the Tax Code of the Russian Federation (Clause 4) include:

1. The contract.
2. Paper evidence of the provision of services, performance of work.

As explained in the letter of the Ministry of Finance, it is possible to confirm the correct determination of the territory of the transaction by the agreements concluded by the enterprise for the supply of products, as well as by securities that do not raise doubts among the control authorities. The content of the contract should clearly state the instructions by which it is possible to unambiguously establish the territory of sale. For example, if the transaction concerns an immovable object, you need to include in the contract information about its address with reference to the registration documentation, in accordance with which it is determined. It is advisable to additionally attach copies of these papers.

In cases where the territory of the activity of one of the participants in the transaction matters, the contract includes a link to the documentation by which it can be determined. This can be a certificate of state registration, registration, etc. In addition, you should indicate who exactly acts as a party to the transaction: the main office of a foreign company or its permanent representative office in Russia. The documents that confirm the place and the fact of the provision of the service or the performance of work are:

1. The act of providing the facility for use.
2. Certificate of education (certificate, diploma, certificate and so on).
3. Act on the work performed / the service provided.
4. The results of market research, documented.
5. Copies of publications with advertisements placed in them.

The territory of the transaction can be confirmed by additional documentation. For example, an enterprise engaged in transportation may provide copies of customs and accompanying papers to the tax office. They will indicate the location of the moved objects.

Territorial sea

As him, under Art. 2 of Federal Law No. 155, a strip of 12 miles wide is recognized, the outer border of which acts as the state border of the Russian Federation. It follows that transactions completed outside the specified line will be considered concluded outside of Russia. In this regard, the fiscal authorities do not express any clear position. However, the courts adhere to the logic of the norm. In one of the decisions, the FAS recognized the space beyond the 12-mile strip not the territory of Russia. Tax inspections do not dispute this opinion.

Demonstration of products abroad

For the promotion and sale of services, works, products can be transported to the exhibition and sold there. If the event was held in Russia, the VAT object arises without fail. Difficulties may arise when the exhibition is organized abroad. According to Art. 252, p.1, objects that act as demonstration samples are placed under a special customs regime called temporary export. It lies in the fact that products that are on the territory of Russia can be used for a certain period abroad with an absolute conditional exemption from export duty. In case of sale of an object, the regime changes to export. In this case, therefore, the territory of the transaction will be Russia.

Since transactions are subject to VAT, the payer can count on tax refunds. This situation, meanwhile, does not suit the Federal Tax Service. The inspection considers that the entity cannot apply deductions. However, this position is not supported by the courts. It is worth noting that disputes between payers and the Federal Tax Service regarding the legality of applying deductions occur quite often. In this regard, entities need to be prepared for the fact that if they recognize Russia as the territory of the transaction and reimburse VAT on transactions related to the sale, the tax inspectorate will dispute this. However, given the position of the FAS, the case is likely to be decided not in favor of the Federal Tax Service.