Losses in heat supply networks and VAT. Is it legal to charge VAT if the tariff is set without VAT? The court says no. income tax

Our main activity is the production and sale of thermal energy. Part of the thermal energy we sell to the population of the city at tariff prices. Most apartment buildings installed communal metering devices. Meter readings are taken from the 20th to the 24th of each month. We make monthly calculations and charges for heat energy according to the data of common house meters, but not for the house, but for each personal account (for each apartment) and invoices are issued for payment. On the last day of the month, according to the metering devices installed at the enterprise (at the border of the transfer of thermal energy to the heating networks of the city), the total heat supply to the population is determined taking into account compensation for losses of thermal energy in the heating networks of the city. There is a difference between the amount accrued to the population for heat and actually released. How, in our case, to organize accounting and tax (VAT and profit) accounting?

Similar questions were asked to the Ministry of Finance of Russia in the letter dated February 16, 2009 No. 03-03-06/4/3 “On accounting for income from the sale of thermal energy”. In response, it should be analyzed, since officials use the norms necessary for work. But it should be pointed out that the Ministry of Finance directly ignored in the letter the issues related to the recording of transactions for the sale of thermal energy in the case of billing the population according to metering, which directly relates to your question.
With regard to income tax, officials indicated that in the absence of individual, common (apartment) metering devices, the consumption standard is applied for settlements with the population utilities, which is established in relation to the monthly volume (quantity) of consumption of services by the consumer. Taking into account the provisions of Article 271 of the Tax Code of the Russian Federation, the Ministry of Finance came to the conclusion: in this case, revenue from the sale of heating services to the population in the absence of metering devices is subject to recognition at the end of each reporting (tax) period in amounts calculated based on the established monthly volumes and standards and the number of months in the reporting period, that is, evenly. But what about the situation when the devices are still installed. Here it is necessary to use the literal interpretation of the norms of Chapter 25 of the Tax Code of the Russian Federation. According to paragraph 2 of Article 249 of the Tax Code of the Russian Federation, sales revenue is determined on the basis of all receipts related to payments for services sold. When applying the accrual method, income is recognized in the period in which it occurs, regardless of the actual income. Money(Clause 1, Article 271 of the Tax Code of the Russian Federation). That is, the date of receipt of income is the date of the sale of services. According to Article 39 of the Tax Code of the Russian Federation, the date of sale of the service should be considered the day of its provision and, since the service is sold and consumed simultaneously (clause 5 of article 38 of the Tax Code of the Russian Federation), the day of its consumption by the customer. Thus, the revenue of the enterprise should be recognized on the basis of the indicators received from the population, and not at the end of each reporting period according to the data of production accounting at the distribution node.
With regard to VAT, everything looks much more complicated. This is due to the fact that public services shipped continuously. Based on Article 167 of the Tax Code of the Russian Federation, the moment of determining the tax base is the earliest of the following dates:
1) the day of shipment (transfer) of goods (works, services), property rights;
2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.
In connection with the fact, the Ministry of Finance of Russia notes in a letter dated February 16, 2009 No. 03-03-06 / 4 / 3 that the provision of heating services is carried out by the taxpayer during the heating season, the object of taxation arises only in those tax periods in which these services are actually provided to the population. That is, the services were provided at the time of receipt of metering indicators from the population. And what to do with the moment the taxable base arises in those periods when the service is actually shipped continuously, the Ministry of Finance of Russia did not indicate.
In this case, based on the logic of the Ministry of Finance, the following picture should emerge:
- for services attributable to the heating season, the tax is charged on the cost of actually rendered services, regardless of the receipt of funds and the presentation of invoices to consumers for payment - for taxes with rent (Letter of the Ministry of Finance of Russia dated 04.04.2007 No. 03-07-15 / 47) - at the end of each tax period;
And
– in the month of invoicing for payment on the date of sale.
That is, at the junction of tax periods, the organization must issue an invoice for payment, for example, on the 20th day (March) according to metering devices and on March 31, 11 days before the end of the tax period.
Such a scheme for calculating VAT seems absurd, but it follows from the explanations of the Russian Ministry of Finance. In this situation, we recommend that you make a formal request on behalf of your organization about the current problem.
In accounting, the situation is similar to income tax.
For purposes accounting the organization's income is recognized as an increase in benefits as a result of the receipt of assets or the repayment of liabilities, leading to an increase in the capital of this organization (paragraph 2 of PBU 9/99). When reflecting the proceeds from sales in accounting, one should remember that several conditions are met (paragraph 12 of PBU 9/99). The key to your organization is that the service must be delivered. Since thermal energy is supplied to the house only during the heating season, revenue must be reflected only during this period, and based on the actually supplied thermal energy according to instrument readings.

The rationale for this position is given below in the document, which you can find in the “Legal base” tab of the “Glavbukh Systems” vip - version

LETTER OF THE MINISTRY OF FINANCE OF RUSSIA No. 03-03-06/4/3 dated February 16, 2009 “On accounting for income from the sale of heat energy”

The municipal unitary enterprise "Reutov heating network" asks for a competent answer to the following question.

Heating based on the amount of Gcal per apartment area;

Hot water supply at the rate of Gcal for the number of people living in the apartment. Since during the heating season the organization releases several times more heat energy than in the summer months, then, accordingly, the base for accruing income in the heating season, applying the norms of Article 271 of the Tax Code of the Russian Federation, is much larger than in summer time of the year. Because of this, there is a significant difference between the actually released and accrued Gcal for the population for the period from January 1 to May 1 and from October 1 to December 31.

Therefore, we ask you to clarify the procedure for recognizing income for the purpose of calculating income tax when selling heat to the population (based on the actually released Gcal or evenly throughout the year, as accrued and invoiced for payment).

We also ask you to clarify the procedure for calculating VAT (based on the actually released Gcal or evenly throughout the year, as it is accrued and billed for payment).*

2. As regards the procedure for calculating value added tax in this situation, the following must be taken into account.

In accordance with paragraphs. 1 p. 1 art. 146 of the Tax Code of the Russian Federation, transactions for the sale of goods (works, services) in the territory of Russian Federation and the transfer of property rights.

According to paragraph 5 of Art. 38 of the Tax Code of the Russian Federation, for tax purposes, a service is recognized as an activity, the results of which do not have a material expression, are realized and consumed in the course of this activity. At the same time, the provision of services for a fee by one person to another person is recognized as the sale of services, and in cases provided for by the Tax Code of the Russian Federation, the provision of services by one person to another person on a gratuitous basis.

On the basis of paragraph 3 of the Rules for the provision of public services to citizens, approved by Decree of the Government of the Russian Federation dated 05.23.2006 N 307, public services are recognized as the activities of a utility service provider for cold water supply, hot water supply, sanitation, electricity supply, gas supply and heating, providing comfortable living conditions for citizens in residential premises.

Given the above, the provision of utility services for heating is recognized as an object of taxation for value added tax.

Due to the fact that the provision of heating services is carried out by the taxpayer during the heating season, the object of taxation arises only in those tax periods in which these services are actually provided to the population.

According to paragraph 1 of Art. 154 of the Tax Code of the Russian Federation, when a taxpayer sells goods (works, services), the tax base is determined as the cost of these goods (works, services), calculated on the basis of prices determined in accordance with Art. 40 of the Tax Code of the Russian Federation, taking into account excises (for excisable goods) and without including tax in them.

Given the above, when providing heating services, the tax base is determined based on the cost of services actually provided to the population that does not have metering devices in each specific tax period in which the object of taxation arises (that is, quarterly during the heating season).

Based on paragraph 1 of Art. 167 of the Tax Code of the Russian Federation, the moment of determining the tax base is the earliest of the following dates:

1) the day of shipment (transfer) of goods (works, services), property rights;

2) the day of payment, partial payment on account of the forthcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

Taking into account that payment by the population for heating services is made on a monthly basis in equal installments during the calendar year, the funds (fee) received by the taxpayer from the population during the period of absence of an object of taxation for such services, in part that is not revenue for services actually provided in previous tax periods, should be considered as a partial payment received on account of the forthcoming provision of heating services, which, on the basis of par. 2 p. 1 art. 154 and paras. 2 p. 1 art. 167 of the Tax Code of the Russian Federation is subject to taxation in general in due course. At the same time, the amount of tax calculated from partial payment after the date of actual provision of heating services is subject to deduction in an amount not exceeding the amount of tax calculated from the cost of services actually provided in subsequent tax periods of the heating season.*

Good afternoon I ask you to provide advice on the following issue: our developer organization is building a residential building, in accordance with project documentation engineering networks and structures, owned by Teploset, get into the construction zone, and therefore it becomes necessary to remove engineering networks and structures from the work production zone by eliminating them and then restoring them by building according to a modified laying plan. Teploset offered to conclude an agreement on compensation, according to which the Organization compensates all the costs of Teploset associated with the liquidation and subsequent construction of a section of networks. Due to the compensation received, Teploset itself will liquidate and build networks. The compensation agreement states that "the funds paid as compensation are targeted financing funds allocated by Teplosetya solely for the purpose of implementing the subject of this agreement" at the same time, the amount of compensation is determined, which is indicated with VAT. Is it possible to allocate VAT in this case in the contract price? Is VAT refundable, is there a contradiction with the phrase about the intended use? The Compensation Agreement is accompanied by a Consolidated Cost Statement, which includes "Funds to cover the costs of paying VAT", and "Heat Network Income Tax" Is it legal to include income tax and value added tax in the summary statement of costs, can an organization compensate taxes of another organization, especially income tax? Can our Organization account for the costs of this agreement as part of the cost of the facility? Thank you very much in advance!

Answer

Heating fees – regulation, accounting and taxation

The heating fee is integral part payments for utility services provided by organizations of housing and communal services, which are required to be paid by both tenants and owners of premises in apartment buildings, as well as tenants and other persons determined by the housing legislation of the Russian Federation.

In this article, we will consider the issues of regulation of payment for heating, as well as the procedure for its accounting and tax accounting.

To begin with, let's turn to the Federal Law of July 27, 2010 No. 190-FZ "On Heat Supply" (hereinafter - Law No. 190-FZ), which establishes the legal framework economic relations arising in connection with the production, transmission, consumption of thermal energy, thermal power, coolant using heat supply systems, the creation, operation and development of such systems. In addition, the law defines the powers of state authorities, local self-government bodies of settlements, urban districts to regulate and control in the field of heat supply, the rights and obligations of heat consumers, heat supply organizations, heat network organizations.

A consumer of thermal energy is a person who purchases thermal energy (capacity), a heat carrier for use in heat-consuming installations owned by him or on other legal grounds or for the provision of public services in terms of hot water supply and heating (paragraph 9 of Article 2 of Law No. 190-FZ).

Heat supply organization - an organization that sells to consumers and (or) heat supply organizations produced or purchased thermal energy (capacity), heat carrier and owns, on the right of ownership or otherwise legally, sources of thermal energy and (or) thermal networks in the heat supply system, through which heat is supplied to consumers of thermal energy (this provision applies to the regulation of similar relations with the participation of individual entrepreneurs) (paragraph 11 of Article 2 of Law No. 190-FZ).

A heat grid organization is an organization that provides services for the transmission of heat energy (this provision applies to the regulation of similar relations with the participation of individual entrepreneurs) (paragraph 16 of Article 2 of Law No. 190-FZ).

Consumers of thermal energy purchase thermal energy (capacity) and (or) heat carrier from a heat supply organization under a heat supply agreement. Payment for thermal energy (capacity) and (or) heat carrier is carried out in accordance with the tariffs established by the regulatory authority, or prices determined by agreement of the parties, in cases provided for by Law No. 190-FZ (paragraphs 1, 9 of Article 15 of Law No. 190-FZ).

Heat supply to consumers is carried out in accordance with the Rules for the organization of heat supply in the Russian Federation, which are approved by the Decree of the Government of the Russian Federation dated August 8, 2012 No. 808 "On the organization of heat supply in the Russian Federation and on amendments to certain acts of the Government of the Russian Federation" (hereinafter - Rules No. 808).

Let us consider the most basic provisions of Rules No. 808, taking into account that the consumers of thermal energy purchasing thermal energy (capacity), coolant for the provision of public services in terms of heating, for the purposes of applying these rules, will be managing organizations, homeowners associations, housing or other consumer cooperatives.

So, the Rules establish the procedure for organizing heat supply to consumers, including the essential terms of contracts for heat supply and the provision of services for the transfer of heat energy, coolant, the features of the conclusion and conditions of contracts for the supply of heat energy (capacity) and (or) heat carrier, the procedure for organizing the conclusion of these contracts between heat supply and heat network organizations, as well as the procedure for restricting and stopping the supply of heat energy to consumers in case of violation of the terms of the contracts by them (paragraph 1 of Rules No. 808).

Under the heat supply agreement, the heat supply organization is obliged to supply thermal energy (capacity) and (or) heat carrier (hereinafter referred to as thermal energy), and the consumer of thermal energy is obliged to accept and pay for thermal energy, observing the mode of consumption of thermal energy (paragraph 20 of Regulation No. 808).

The essential conditions that the heat supply contract must contain are listed in paragraph 21 of Regulation No. 808.

The contractual volume of heat energy consumption is declared by the consumer annually, with the exception of citizens-consumers, as well as managing organizations or associations of homeowners or housing cooperatives or other specialized consumer cooperatives that manage multi-apartment buildings and have concluded agreements with resource supply organizations (paragraph 22 of Regulation No. 808).

The heat supply agreement determines that in case of violation of heat energy consumption, the consumer is obliged to pay the heat supply organization the amount of over-contractual, unmetered consumption or consumption in violation of the consumption regime with the application of increasing coefficients to heat supply tariffs, unless otherwise provided by the Housing Code of the Russian Federation in relation to citizens-consumers, as well as management organizations or associations of homeowners or housing cooperatives or other specialized consumer cooperatives that carry out activities for the management of apartment buildings and have concluded contracts with resource-supplying organizations (hereinafter referred to as managing organizations) (clause 23 of Regulation No. 808).

Consumers pay for the thermal energy of the heat supply organization at the established tariff and (or) at prices determined by agreement of the parties in the cases established by Law No. 190-FZ, for the consumed amount of thermal energy in the manner prescribed by paragraph 33 of Regulation No. 808:

- 35 percent of the planned total cost of heat energy consumed in the month for which payment is made is paid before the 18th day of the current month, and 50 percent of the planned total cost of heat energy consumed in the month for which payment is made is paid before the end of the last day of the current month;

- payment for the thermal energy actually consumed in the past month, taking into account the funds previously paid by the consumer as payment for thermal energy in the billing period, is carried out before the 10th day of the month following the month for which payment is made. If the volume of actual consumption of thermal energy for the past month is less than the contractual volume determined by the heat supply agreement, the overpaid amount is offset against the upcoming payment for the next month.

The planned total cost of consumed heat energy in the month for which payment is made is calculated as the product of the contractual volume of heat energy consumption in the month for which payment is made and the heat energy tariff or price determined by agreement of the parties (paragraph 34 of Regulation No. 808).

Note!

The payment procedure provided for by paragraphs 33 and 34 of the Rules No. 808 does not apply to budgetary and state -owned institutions, state -owned enterprises, as well as to partnerships of housing owners, housing cooperatives, other specialized consumer cooperatives, managing organizations engaged in the management of apartment buildings and concluding contracts with resource -supplying organizations and other consumers in respect of which housing are in relation The legislation of the Russian Federation provides for a different procedure for paying for utilities or utilities.

Under the billing period for calculating consumers with a heat supply organization, 1 calendar month is taken.

To conclude a heat supply contract with a single heat supply organization, the applicant should send this organization an application for concluding an agreement (the information that must be indicated in the application is listed in paragraph 35 of Regulation No. 808), and attach the following documents to the application (paragraph 36 of Regulation No. 808):

- duly certified copies of title documents (including a certificate of state registration of rights to real estate and transactions with it), confirming the ownership and (or) other legal right of the consumer in relation to real estate objects (buildings, structures, structures) in which heat-consuming installations are located (if any);

- an apartment building management agreement (for management organizations);

- the charter of a homeowners' association, housing cooperative or other specialized consumer cooperative;

– documents confirming the connection of the applicant's heat-consuming installations to the heat supply system;

- permission to commission (in relation to capital construction projects for which the legislation on urban planning provides for obtaining a permit to commission), a permit to allow the operation of a power plant (for heat-consuming installations with a heat load of 0.05 Gcal / h and more, which are not capital construction objects, for which the legislation on urban planning provides for obtaining a permit to commission), issued by the state energy supervision body;

- acts of readiness of such heat-consuming installations for the heating season, drawn up in accordance with the procedure established by the legislation of the Russian Federation.

The unified heat supply organization, within 10 days from the date of receipt of the application and the necessary documents, is obliged to send two copies of the signed draft agreement to the applicant. The applicant, within 10 days from the date of receipt of the draft contract, is obliged to sign it and send one copy back (paragraph 40 of Rules No. 808).

The contract for the heat supply of a consumer citizen with a single heat supply organization is considered concluded from the date of connection of his heat-consuming installation to the heat supply system (paragraph 42 of Regulation No. 808).

It should be noted that the status of a single heat supply organization is assigned to a heat supply organization and (or) a heat network organization by a decision of the federal body executive power(in relation to cities with a population of 500 thousand people or more) or a local government when approving the heat supply scheme for a settlement, urban district (paragraph 3 of Regulation No. 808).

A single heat supply organization, in the course of its activities, is obliged to conclude and execute, in particular, contracts for the provision of services for the transfer of thermal energy in the amount necessary to ensure heat supply to consumers of thermal energy, taking into account the losses of thermal energy and coolant during their transmission (paragraph 12 of Regulation No. 808).

A heat supply contract concluded for a certain period is considered extended for the same period and on the same conditions, if one month before the expiration of its validity period, none of the parties declares its termination or the conclusion of the contract on other conditions (paragraph 43 of Rules No. 808).

Currently, a large number of residential buildings with built-in or attached non-residential premises are being built, and there are some nuances in concluding a contract for the heat supply of such premises.

If a residential building has a built-in or attached non-residential premises and the heat input is located in the residential part of the house, then the application for concluding a heat supply agreement is submitted by the person managing the apartment building in accordance with the Housing Code of the Russian Federation. At the same time, the volume of consumption and the procedure for accounting for thermal energy supplied to owners of residential and non-residential premises is fixed in the contract separately for the residential part of the house and the built-in or attached non-residential premises.

If the heat input is located in a non-residential part of the house, then applications for concluding a heat supply agreement are submitted by the owner of the non-residential premises and the person managing the apartment building. At the same time, the volume of consumption and the procedure for accounting for thermal energy supplied to owners of residential and non-residential premises are recorded in the heat supply agreement separately for the residential part of the house and the built-in or attached non-residential premises.

If there is 1 heat input in a non-residential building, then an application for concluding a heat supply contract is submitted by the owner of the non-residential premises in which there is a heat input. If there are several heat inputs in a non-residential building, applications for concluding a heat supply agreement are submitted by each owner of the premises in which there is a heat input. Relations on the provision of thermal energy and payment for relevant services with the owners of other premises that do not have a heat input are determined by agreement between the owners of such premises and the owners of the premises that have entered into a heat supply contract (clause 44 of Regulation No. 808).

Note!

The heat grid organization is not entitled to suspend the fulfillment of obligations under the contract for the provision of services for the transfer of thermal energy in relation to the heat supply of citizens-consumers, as well as persons engaged in the management of apartment buildings and concluded contracts with resource supply organizations, which follows from paragraph 70 of Regulation No. 808.

The rules that are mandatory when concluding an agreement with a management organization or a partnership of homeowners or a housing cooperative or other specialized consumer cooperative of agreements with resource supply organizations are approved by Decree of the Government of the Russian Federation dated February 14, 2012 No. 124. The listed organizations are not entitled to refuse to conclude agreements in accordance with these rules with resource supply organizations that provide heat, which is determined by paragraph 12 of Article 161 of the HC RF.

Section VI of Rules No. 808 establishes the procedure for limiting and stopping the supply of heat energy to consumers, in particular, on the basis of paragraph 92 of Rules No. 808, a heat supply organization has the right to impose restrictions on the supply of heat energy if the consumer has an arrears in paying for heat energy, including in case of violation of the prepayment terms, if such a condition is provided for by the heat supply contract.

With regard to consumer citizens and managing organizations, the procedure for suspending or restricting the provision of public services is provided for in Section XI of the Rules for the provision of public services to owners and users of premises in apartment buildings and residential buildings, approved by Decree of the Government of the Russian Federation dated May 6, 2011 No. 354 (hereinafter - Rules No. 354).

So, the payment for utilities, which both owners and tenants of residential premises are obliged to pay, includes payment for heating (heat supply, including solid fuel in the presence of stove heating), which is established by Article 154 of the Housing Code of the Russian Federation.

The amount of payment for utilities is calculated based on the volume of consumed utilities, determined by the readings of metering devices, and in their absence, based on the standards for the consumption of utilities approved by the state authorities of the constituent entities of the Russian Federation in the manner established by the Government of the Russian Federation.

As we noted above, the provision of public services to owners and users of premises in apartment buildings and residential buildings is carried out in accordance with Rules No. 354.

And if, for the purposes of applying Rules No. 808, the managing organization is a consumer, then for the purposes of applying Rules No. 354, the managing organization will be the executor, since the executor is recognized as a legal entity regardless of the legal form or an individual entrepreneur providing utility services to the consumer. The consumer, according to Rules No. 354, is a person who uses, on the basis of ownership or other legal grounds, premises in apartment building, residential building, household, consuming utilities.

It is necessary to pay attention to the fact that from the date of entry into force of Rules No. 354, the Decree of the Government of the Russian Federation dated May 23, 2006 No. 307 "On the procedure for providing public services to citizens", with the exception of paragraphs 15 - 28 of these rules regarding the procedure for calculating the amount of payment for a utility service for heating, and paragraphs 1 - 4 of Appendix No. 2 to the same rules regarding the procedure for calculating the amount of payment for a utility service for heating, became invalid . The listed paragraphs of Regulation No. 307 become invalid from January 1, 2015.

The Government of the Russian Federation adopted Decree No. 857 of August 27, 2012 "On the specifics of the application of the Rules for the provision of utility services to owners and users of premises in apartment buildings and residential buildings" (hereinafter referred to as Decree No. 857).

According to paragraph 1 of Decree No. 857 of Rule No. 354, in terms of determining the amount of payment for the provided heating utility service, they are applied taking into account the following features: in order to determine the amount of payment for the heating utility service provided to the consumer of residential and non-residential premises that are not equipped with thermal energy meters, the state authorities of the constituent entities of the Russian Federation may decide that consumers pay utility heating services evenly for all settlement months of the calendar year. If this decision is made, the determination of the amount of payment for the utility service for heating is carried out in accordance with the Rules for calculating the amount of payment for the utility service for heating, approved by Decree No. 857.

State authorities of the constituent entities of the Russian Federation have the right to make the decision indicated above in relation to all or individual municipalities located on the territory of the constituent entity of the Russian Federation (clause 1 (1) of Resolution No. 857).

The state authorities of the constituent entities of the Russian Federation that have adopted the above decision may at any time decide to apply the procedure for calculating the amount of payment for a utility service for heating, provided for by the Rules No. 354 (paragraph 2 of resolution No. 857).

State regulation of prices (tariffs) for thermal energy (capacity) is carried out on the basis of the principles established by Law No. 190-FZ, in accordance with the basics of pricing in the field of heat supply, the rules for regulating prices (tariffs) in the field of heat supply, approved by the Government of the Russian Federation, other regulatory legal acts and guidelines approved by the federal executive body in the field of state regulation of tariffs in the field of heat supply (clause 1 of Article 10 of Law No. 190 -FZ).

The period of validity of the established tariffs in the field of heat supply and (or) their limit (minimum and maximum) levels cannot be less than one financial year, unless otherwise established by federal laws, decisions of the Government of the Russian Federation (paragraph 2 of Article 10 of Law No. 190-FZ).

Tariffs for thermal energy (capacity) supplied to consumers, tariffs for services for the transmission of thermal energy can be set by the regulatory body in the form of a one-part or two-part tariff, tariffs for heat carriers are set in the form of a single-part tariff (paragraphs 1, 2 of Article 11 of Law No. 190-FZ). The named tariffs can be differentiated depending on the type or parameters of the heat carrier, heat transmission range zones, other criteria, which are determined by the pricing principles in the heat supply sector, approved by the Government of the Russian Federation.

Decree of the Government of the Russian Federation dated October 22, 2012 No. 1075 "On pricing in the field of heat supply" approved, in particular:

– Fundamentals of pricing in the field of heat supply;

– Rules for regulating prices (tariffs) in the field of heat supply;

– Rules for establishing long-term parameters for regulating the activities of organizations in the sphere of heat supply referred by the legislation of the Russian Federation to the spheres of activity of subjects of natural monopolies in the field of heat supply and (or) prices (tariffs) in the field of heat supply, which are subject to regulation in accordance with the list defined by Article 8 of Law No. 190-FZ.

It should be noted that the federal executive body authorized to carry out legal regulation in the field of state regulation of prices (tariffs) for goods (services) in accordance with the legislation of the Russian Federation and control over their application is the Federal Tariff Service (hereinafter referred to as the FTS of the Russian Federation). The regulation on the Federal Tariff Service was approved by Decree of the Government of the Russian Federation of June 30, 2004 No. 332.

The Federal Tariff Service of the Russian Federation establishes, in particular, marginal (minimum and (or) maximum) levels of tariffs for thermal energy (capacity) supplied by heat supply organizations to consumers.

Guidelines for the calculation of regulated prices (tariffs) in the field of heat supply, approved by Order of the Federal Tariff Service of the Russian Federation dated June 13, 2013 No. 760-e.

On March 18, 2010, the Federal Tariff Service of the Russian Federation issued an information message "On the payment of citizens for public services." It notes that the dynamics of the amount of payment of citizens for utilities depends not only on the level of established tariffs, but also on the volume of consumption of utilities (including the standard for the consumption of services), as well as on changes in the share of payment by the population of established tariffs, taking into account the subsidies and benefits provided to them.

The need for an annual upward revision of tariffs for utilities is due, in particular, to rising energy prices. A significant share in the tariff structure for thermal energy is occupied by the fuel component, which depends on the type and price of the fuel used (the cost of liquid and solid fuels, as a rule, is significantly higher than natural gas).

If the executor of utility services is a homeowners association, cooperative, managing organization, then the calculation of the amount of payment for the purchase by the executor of thermal energy is carried out according to the tariffs established in accordance with the legislation of the Russian Federation and used to calculate the amount of payment for utilities by citizens (paragraph 15 of Regulation No. 307).

In the production of thermal energy for heating apartment building using an autonomous heating system, which is part of the common property of the owners of premises in an apartment building (in the absence of centralized heating), the amount of payment for heating is calculated according to the readings of metering devices and tariffs for fuel used for the production of thermal energy (clause 18 of Regulation No. 307).

Note!

The costs of maintenance and repair of in-house engineering systems used for the production of heat energy are included in the payment for the maintenance and repair of residential premises. Such costs are not included in the heating fee.

The procedure for determining the payment for heating depends on the presence or absence of metering devices in residential and non-residential premises of an apartment building and is established by paragraphs 19 - 28 of Regulation No. 307.

Consumers pay utility bills, including heating, in the following order:

- tenants of residential premises under a social tenancy agreement and a contract for the rental of residential premises of a state or municipal housing stock in an apartment building managed by a managing organization, they pay a heating fee to this managing organization, with the exception of the case provided for by paragraph 7.1 of Article 155 of the HC RF (paragraph 4 of Article 155 of the HC RF);

- the tenant of a dwelling under a contract for renting a dwelling of a housing fund for social use pays a heating fee to the landlord of such a dwelling, if this agreement does not provide for the tenant to pay a fee to a resource supplying organization (clause 4.1 of Article 155 of the LC RF);

- members of the HOA - in the manner prescribed by the governing bodies of the HOA (in relation to members of the HOA, attention should be paid to the fact that they do not pay utility bills, which include heating fees, but mandatory payments and (or) contributions related to the payment of utility costs) (clause 5 of article 155 of the RF LC);

- owners of premises in the house where the HOA was created, who are not themselves members of the HOA - in accordance with the agreements concluded with the HOA (paragraph 6 of Article 155 of the LC RF);

- owners of premises in a house in which there is no HOA, which is managed by the managing organization - this managing organization, with the exception of cases provided for in paragraph 7.1 of Article 155 of the HC RF and Article 171 of the HC RF (paragraph 7 of Article 155 of the HC RF);

- owners of premises in the house, directly managing the house - in accordance with agreements concluded with persons engaged in relevant activities (clause 8 of article 155 of the LC RF);

- owners of residential buildings - in accordance with agreements concluded with persons engaged in relevant activities (paragraph 9 of Article 155 of the RF LC).

Please note that in accordance with paragraph 7.1 of Article 155 of the Housing Code of the Russian Federation, owners of premises in a house and tenants of residential premises under social rental contracts or contracts for the rental of residential premises of state or municipal housing stock in this house, based on the decision of the general meeting of owners of premises in the house, can pay for heating (with the exception of heating consumed when using common property in an apartment building) to a resource supply organization.

When a developer manages an apartment building without concluding a management agreement for such a house with a managing organization, payment for utilities, including for heating, is paid by the person specified in subparagraph 6 of paragraph 2 of Article 153 of the HC RF to the developer (paragraph 7.3 of Article 155 of the HC RF).

When a developer concludes an apartment building management agreement with a managing organization, the payment for heating is paid by the person specified in subparagraph 6 of paragraph 2 of Article 153 of the HC RF, such a managing organization (paragraph 7.4 of Article 155 of the HC RF).

Consumers are obliged to pay the payment for heating in a timely manner, and the payment is paid to the contractor or to the paying agent or bank paying agent acting on his behalf (clause 63 of Regulation No. 354).

The fee should be paid monthly, before the 10th day of the month following the expired billing period for which payment is made, unless a different deadline for paying utility bills is established by the apartment building management agreement (paragraph 66 of Regulation No. 354).

Settlements must be made in a timely manner, since paragraph 14 of Article 155 of the LC RF establishes sanctions for late payment of fees. According to the above paragraph, persons who have not paid the payment on time and (or) in full are obliged to pay penalties in the amount of 1/300 of the refinancing rate of the Central Bank of the Russian Federation in force at the time of payment, from the unpaid amounts for each day of delay, starting from the next day after the due date of payment until the day of actual payment inclusive.

The basis for payment for heating are payment documents that are submitted by the contractor to the consumer no later than the 1st day of the month following the expired billing period for which payment is made, unless a different deadline for submitting payment documents is established by the apartment building management agreement (paragraph 67 of Rules No. 354). The list of details that the payment document must contain contains clause 69 of Regulation No. 354.

In the payment document issued to the consumer of utility services in an apartment building, the payment for utility services for general house needs and the payment for utility services provided to the consumer in a residential or non-residential premises must be indicated in separate lines (paragraph 70 of Regulation No. 354).

An approximate form of a payment document for paying utility bills and guidelines for its completion, approved by the Order of the Ministry of Regional Development of the Russian Federation dated September 19, 2011 No. 454.

Let's move on to the issues of taxation and accounting for heating fees, and consider them using the example of a managing organization.

Recall that an apartment building, in accordance with paragraph 9 of Article 161 of the Housing Code of the Russian Federation, can be managed by only one managing organization.

So, suppose that the managing organization provides the owners of premises in an apartment building with heating services, which is established by the management agreement. Under the terms of the contract, the payment for heating goes to the settlement account of the managing organization, which, in turn, transfers money for the consumed heating services to the resource supplying organization.

How will payments for heating be taken into account in the tax accounting of the managing organization?

Let's start with value added tax.

The sale of utility services provided by homeowners associations, management organizations, housing construction, housing and other specialized consumer cooperatives established to meet the needs of citizens in housing and responsible for servicing in-house engineering systems, which are used to provide utility services, is not subject to VAT in the Russian Federation, subject to the purchase of utility services by the specified taxpayers, from organizations of the communal complex, electricity suppliers and gas supply organizations, organizations providing hot water supply, cold water e and (or) water disposal (subparagraph 29 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation (hereinafter - the Tax Code of the Russian Federation)).

At the same time, utilities (including heating) provided by resource-supplying organizations to the population and managing organizations are not included in the list of transactions exempt from VAT taxation, and therefore, such services are subject to VAT in the generally established manner, as stated in the letter of the Ministry of Finance of the Russian Federation dated January 18, 2012 No. 03-07-14 / 06. A similar conclusion is contained in the letters of the Ministry of Finance of the Russian Federation dated March 19, 2014 No. 06-05-17 / 11844 "On the application of value added tax in the sale of public services", dated July 22, 2013 No. 03-07-14 / 28681.

Thus, the provision of heating services by managing organizations at a cost corresponding to the cost of acquiring these services from a heat supply organization, which includes VAT, is exempt from VAT taxation.

It should be noted that the owners of residential and non-residential premises in an apartment building can be not only individuals but also legal entities. In Letter No. 03-07-07/21 of the Ministry of Finance of the Russian Federation dated April 30, 2010, the specialists of the Ministry of Finance explained that transactions involving the sale of the above works (services) are exempt from VAT taxation, which are carried out, among other things, by managing organizations at a cost corresponding to the cost of acquiring these works (services) from organizations and individual entrepreneurs directly performing (providing) these works (services). In this case, the exemption applies regardless of who the services are provided by the managing organization - individuals or legal entities.

Management organizations that apply the general taxation system are taxpayers of corporate income tax. For the purpose of taxation of profits, in accordance with paragraph 1 of Article 248 of the Tax Code of the Russian Federation, income includes, in particular, income from the sale of goods (works, services) and non-operating income. When determining income, they exclude the amounts of taxes presented in accordance with the Tax Code of the Russian Federation by the taxpayer to the buyer (purchaser) of goods (works, services, property rights).

Proceeds from the sale of goods (works, services) are recognized as income from sales (clause 1 of article 249 of the Tax Code of the Russian Federation).

The costs of purchasing thermal energy and heat carrier from a resource supplying organization must be taken into account by the managing organization as part of material costs in accordance with subparagraph 6 of paragraph 1 of Article 254 of the Tax Code of the Russian Federation (net of VAT).

For the purposes of income taxation, proceeds from the provision of utilities for heating (excluding VAT) are recognized as income from sales (clause 1 of article 248, clause 1 of article 249 of the Tax Code of the Russian Federation). Payments for heating received on the account of the managing organization outside the heating period of the year refer to several reporting (tax) periods and, on the basis of paragraph 2 of Article 271 of the Tax Code of the Russian Federation, must be distributed by the taxpayer independently, taking into account the principle of uniform recognition of income and expenses, that is, in the same way as in accounting - throughout the entire heating season as heating costs arise. As for payments attributable to the heating season, the moment of recognition of their income on the basis of paragraph 3 of Article 271 of the Tax Code of the Russian Federation will be the date of the provision of services, that is, the last day of the month in which the heating service was provided.

When carrying out accounting, all organizations, regardless of their organizational and legal form, must be guided by the Federal Law of December 6, 2011 No. 402-FZ "On Accounting" (hereinafter - Law No. 402-FZ).

As stated in paragraph 1 of Article 21 of Law No. 402-FZ, documents in the field of accounting regulation are federal and industry standards, recommendations in the field of accounting and standards of an economic entity. At the same time, federal and industry standards are mandatory, unless otherwise established by these standards, this is indicated by paragraph 2 of Article 21 of Law No. 402-FZ.

However, federal and industry standards have not yet been approved. Therefore, prior to the approval by the state accounting authorities of federal and industry standards, in accordance with paragraph 1 of Article 30 of Law No. 402-FZ, the rules for accounting and preparation of financial statements approved by authorized federal executive bodies and the Central Bank of the Russian Federation before the date of entry into force of Law No. 402-FZ, that is, until January 1, 2013, apply.

By order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 32n, the Accounting Regulation "Income of the Organization" PBU 9/99 (hereinafter - PBU 9/99) was approved.

Based on this accounting standard, first of all, it should be determined whether the incoming payments for heating will be the income of the managing organization? According to paragraph 5 of RAS 9/99, these amounts will be recognized as income from ordinary activities as revenue from the provision of services. Revenue is recognized in accounting in the presence of the conditions listed in clause 12 of PBU 9/99. Revenue is recognized by the managing organization on a monthly basis, since the billing period is a calendar month, in the amount calculated on the basis of tariffs or standards and presented to consumers.

To fulfill the terms of the heating management contract, the managing organization must purchase resources from the resource supplying organization. The cost of thermal energy purchased from a resource supplying organization should be included in the cost of ordinary activities as material costs associated with the purchase of raw materials, materials, and other inventories, which follows from clauses 5, 8 of the Accounting Regulation "Organization's expenses" PBU 10/99, approved by Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 33n (hereinafter - PBU 10/99).

To account for income and expenses from ordinary activities, the Chart of Accounts for accounting for the financial and economic activities of organizations and the Instructions for its application, approved by Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n, account 90 "Sales" is intended. Revenue is recorded on sub-account 90-1 "Revenue", and cost of sales - on sub-account 90-2.

The heating utility is seasonal. Paragraph 5 of Regulation No. 354 establishes that if thermal energy for the needs of space heating is supplied to in-house engineering systems through centralized networks of engineering and technical support, then the contractor begins and ends the heating period within the time limits established by the authorized body. The heating period must begin or end on the day following the day of the end of the 5-day period during which, respectively, the average daily outdoor temperature is below 8 degrees Celsius or the average daily outdoor temperature is above 8 degrees Celsius.

If, in the absence of centralized heat supply, the production and provision by the contractor of the heating utility service are carried out using equipment that is part of the common property of the owners of premises in an apartment building, then the conditions for determining the start and (or) end date of the heating period and (or) the start and (or) end date of the heating period are established by the decision of the owners of premises in an apartment building or owners of residential buildings. If such a decision is not made by the owners of the premises in an apartment building or the owners of residential buildings, the heating period begins and ends at the start and end dates of the heating period established by the authorized body when heat energy is supplied for the needs of space heating to in-house engineering systems through centralized networks of engineering and technical support.

If the owners and tenants of the premises of an apartment building pay for utilities for heating throughout the calendar year, then the activities of the managing organization related to the provision of heating services are seasonal, that is, they are carried out only during the heating season.

As you know, in order to recognize revenue in accounting, certain conditions must be met, in particular, it is necessary that the service be provided, and the costs that are incurred or will be incurred in connection with this operation can be determined (subparagraphs "d" and "e" of paragraph 12 of PBU 9/99). Otherwise, upon receipt of funds in the accounting of the organization, accounts payable are recognized, and not revenue. Therefore, it is impossible to qualify payments for heating received on the account of the managing organization before the start of the heating season as revenue, otherwise the procedure for recognizing expenses in the income statement, based on compliance with the principle of matching income and expenses (clause 19 PBU 10/99 "Organization's expenses"), will be violated. After all, the costs of paying for utility resources for the provision of heating services for apartment buildings arise from the managing organization only during the heating season.

Income received in the reporting period, but related to the following reporting periods (to which, in this case, payments for heating received by the management organization during the non-heating season) can be included in accounting are recognized in a special manner. Based on the Chart of Accounts, they are reflected on account 98 "Deferred income", sub-account 98-1 "Income related to the following reporting periods". Note that this sub-account takes into account, in particular, utility bills accrued against future periods. On the credit of this sub-account, in correspondence with the accounts of accounting for cash or settlements with debtors and creditors, the amounts of income relating to the following reporting periods are reflected, and on the debit, the amounts of income transferred to the corresponding accounts upon the onset of the reporting period to which these incomes relate. In this case, the utility payments recorded on account 98 "Deferred income", subaccount 98-1 "Income relating to the next reporting periods" should be recognized as part of the revenue on account 90 "Sales", subaccount 90-1 "Revenue", in our opinion, evenly throughout the entire heating season. At the same time, the costs associated with the provision of services recorded on account 20 "Main production" as expenses for ordinary activities (paragraph 5 of PBU 10/99) are written off to the debit of account 90, subaccount 90-2 "Cost of sales".

Hope asks:

The apartment building has autonomous system heating - boiler room. It belongs to our organization. In the specified house there are non-residential premises, which also belong to us on the right of ownership.
The organization does not have the status of a heat supply organization, and we do not sell heat energy. We entered into an agreement with a house management company, under the terms of which this company compensates us for the costs associated with providing the building (common property and residential premises) with thermal energy. Compensation is determined in a fixed amount.
Do we understand correctly that it is possible not to impose VAT on the amounts of compensation received from the management company? After all, if we did not have a contractual relationship with the management company, then the amounts recovered by the court from the residents of the house for the heat consumed, as unjust enrichment, would not be subject to VAT.

According to sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation, the tax base for VAT increases by amounts received for goods (works, services) sold, in the form of financial assistance, to replenish special-purpose funds, by increasing income or otherwise related to payment for goods (works, services) sold. Thus, it does not matter how the relationship between the parties is documented. For VAT purposes, the main thing is that there should be a fact of sale of goods (works, services) and payment should be associated with this sale.

It follows from the terms of the concluded contract that the organization receives compensation for the costs associated with providing thermal energy to the entire building. That is, residents of an apartment building consume thermal energy produced in a boiler organization. For the purposes of taxation, a service is recognized as an activity, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity (clause 5, article 38 of the Tax Code of the Russian Federation). Consequently, the organization provides tenants with a service for the heat supply of their apartments.

The provision of services by one person to another on a reimbursable or non-reimbursable basis is considered a sale (clause 1, article 39 of the Tax Code of the Russian Federation). In the situation under consideration, the building heat supply service is paid. After all, for the generation of energy consumed by residents, the company receives compensation. Thus, the organization actually sells thermal energy to residents and is a heat supply organization for them (clause 11, article 2 of the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply”). As stated in the Decree of the Arbitration Court of the Volga-Vyatka District dated October 27, 2015 No. F01-3656/2015, in order to recognize an organization as a heat supply company, it must have a produced resource for sale to its consumers, as well as legal possession of the necessary equipment.

The fact that heat energy is sold not under a heat supply agreement and not at regulated prices does not matter for tax purposes. In accordance with paragraph 3 of Art. 2 of the Civil Code of the Russian Federation, civil law does not apply to tax relations.

It should be noted that in the absence of a heat supply agreement and the recovery through the court of the amounts of unjust enrichment in the form of thermal energy consumed by residents, these amounts are subject to VAT. Thus, the Arbitration Court of the North-Western District, in its decision of February 18, 2016 in case No. А56-18113/2015, considered the situation when the enterprise carried out non-contractual consumption of thermal energy. The heat supplier company filed a lawsuit to recover unjust enrichment from the enterprise in the form of the cost of non-contractual consumption of heat energy, including VAT. The court pointed out that the consumption of thermal energy is considered non-contractual without the conclusion of a heat supply contract in accordance with the established procedure (clause 29, article 2 federal law dated July 27, 2010 No. 190-FZ). According to paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 17, 1998 No. 30 “Review of the practice of resolving disputes related to the energy supply agreement”, the absence of contractual relations does not relieve the consumer from the obligation to reimburse the cost of the heat supplied to him.

Since the enterprise received thermal energy, it is obliged, in accordance with the norms of the Tax Code of the Russian Federation, to pay VAT to the energy supplier as part of the purchase price. The fact that the cost of consumed heat energy in the absence of a concluded heat supply contract is recovered in the manner of unjust enrichment does not relieve the supplier company from the obligation to present the corresponding amount of VAT in addition to the cost of non-contractual consumption. In this case, non-contractual consumption of thermal energy is recognized as a VATable transaction in accordance with paragraph 1 of Art. 146 of the Tax Code of the Russian Federation. Therefore, the supplier company reasonably issued invoices for payment of the thermal energy actually consumed by the enterprise, including VAT.

Similar conclusions are contained in the decision of the Arbitration Court of the North-Western District dated November 24, 2015 in case No. A26-447 / 2015 regarding non-contractual consumption of electricity Supreme Court RF dated March 23, 2016 No. 307-KG16-1324 refused to transfer the case to the Judicial Collegium for Economic Disputes).

And in the case considered by the Arbitration Court of the Moscow District in resolution No. Ф05-9021/2015 dated 07.09.2015, the court found it lawful to charge VAT on the amount of unjust enrichment for the period of illegal use of property. He pointed out that unjust enrichment in the present case constituted rent for the use of equipment, and for tax purposes, a transaction for the sale of services subject to VAT.

So, since the amount of compensation received by the company under an agreement with the management company is related to the payment for the thermal energy supplied to residents, it is based on subpara. 2 p. 1 art. 162 of the Tax Code of the Russian Federation is subject to VAT.

O.A. butchers,
tax lawyer, Ph.D.

Every industry has characteristics, which also appear in the tax legal relations. As the analysis of arbitration practice shows, one of the most difficult issues is related to the calculation and payment of VAT by electric power companies.

1. Problems of determining the tax base for VAT

1.1. Is it necessary to include in the VAT tax base the amount of the tariff imbalance in the regulated sector of the federal wholesale electricity (capacity) market

Generalization judicial practice shows that one of the most common disputes is the inclusion of tariff imbalances in the regulated sector of the federal (all-Russian) wholesale electricity (capacity) market (FOREM) into the VAT tax base.

In particular, the tax authorities draw conclusions about the underestimation of the tax base by the amount of the tariff imbalance arising from the supply of electricity to buyers for more than low prices compared to prices set by the state for electricity suppliers [see in the resolutions of the Federal Antimonopoly Service of the West Siberian District dated April 2, 2008 N F04-1655 / 2008 (1912-A27-14; FAS of the Ural District dated February 26, 2008 N F09-632 / 08-C2].

However, when making decisions on tax disputes, the courts proceed from the fact that the taxpayer is obliged to calculate VAT at the established rate from the amount of electricity (capacity) that is reflected in the summary act of accounting.

Electrical energy is a specific commodity. Suppliers supply electricity not to a specific end customer, but to the grid of the Unified Energy System of Russia (UES of Russia). Buyers receive electricity not from a specific supplier, but directly from the networks of the UES of Russia.

Thus, at the time the generating company draws up a summary act of metering the energy (capacity) supplied to the grid of the UES of Russia, in the absence of an invoice notification from the wholesale market operator, it is impossible to establish the fact of the shipment of electricity to a specific end consumer.

By virtue of paragraph 13 of Art. 40 of the Tax Code of the Russian Federation (TC RF), when selling goods (works, services) at state regulated prices (tariffs) established in accordance with the legislation of the Russian Federation, the above prices (tariffs) are accepted for taxation purposes.

Based on Art. 1 of the Federal Law of 04.14.1995 N 41-FZ "On state regulation Tariffs for Electricity and Heat in the Russian Federation" FOREM - the sphere of distribution of electricity and capacity within the framework of the UES of Russia within the boundaries of the single economic space of the Russian Federation with the participation of large producers and large buyers of electricity that have received the status of wholesale market entities and operate on the basis of the rules of the wholesale market.

Thus, in accordance with paragraphs 6 and 7 of the Instruction on the procedure for calculating the cost balance of the federal (all-Russian) wholesale electricity (capacity) market (FOREM) when setting tariffs for electricity (capacity) supplied with FOREM, approved by Decree of the FEC of Russia dated January 21, 2000 N 4/6, if the cost balance of the wholesale market is in short supply, tariffs for consumers can be revised; in the event that it is impossible to ensure, in the current period of regulation, the deficit-free value balance of the wholesale market, the FEC of Russia decides on the procedure for accounting for this shortage of funds when regulating tariffs in future periods. Under such conditions, the moment of determining the tax base for VAT on this amount will be the tax period in which it will be taken into account when setting tariffs.

A value imbalance in the FOREM regulated sector occurs when separate periods regulation, the total cost of electricity supply by all electricity (capacity) suppliers in the regulated FOREM sector, calculated at the individual tariffs of suppliers, exceeds the total cost of electricity purchases by all buyers, calculated at the relevant buyer tariffs.

In view of the foregoing, in the resolutions of the Federal Antimonopoly Service of the North-Western District dated March 18, 2008 N A13-737 / 2007, dated March 3, 2008 N A42-1074 / 2007; FAS of the Volga-Vyatka District dated 01.10.2007 N A29-6791 / 2006a; FAS of the West Siberian District of 04/02/2008 N F04-1656 / 2008 (1913-A27-14); The Federal Antimonopoly Service of the Urals District dated February 18, 2008 N F09-379/08-C2, dated February 12, 2008 N F09-238/08-C2, dated 01/10/2008 N F09-10866/07-C2, the courts draw conclusions that the tax authorities have no grounds to refuse the organization to reduce the tax base for VAT by the amount of the tariff imbalance.

The electricity supplier is obliged to be guided for tax purposes by the state regulated price at which the actual sale of electricity to a particular consumer is made. For tax purposes, the amount of a negative value imbalance cannot be recognized as revenue, since it does not meet the criteria established for taxable revenue: it is not related to the sale of goods (works, services) and there is no possibility of obtaining it. This legal position is given in the resolutions of the Federal Antimonopoly Service of the North Caucasus District dated March 12, 2008 N F08-1018 / 08-370A, dated February 19, 2008 N F08-502 / 08-167A.

1.2. Should the tax base for VAT include the amounts of grants and subventions from the budget to cover losses from the use of state regulated prices

In a number of cases, tax authorities require that subsidies received by an organization from the budget and associated with partial financing by a local government of the cost of utilities (including electricity) consumed by the population be included in the VAT tax base. Similar claims of the tax authorities are reflected in the resolutions of the Federal Antimonopoly Service of the Urals District dated 07.06.2006 N Ф09-4706/06-С2; FAS of the West Siberian District of December 25, 2006 N F04-7755 / 2006 (28590-A03-14), dated April 25, 2006 N F04-1543 / 2006 (21806-A67-29).

At the same time, the tax authorities believe that enterprises do not provide utility services to the population, but pay VAT to the producers of these services at the expense of funds received from consumers of utility services, as well as at the expense of amounts received from the budget in the form of subsidies.

In such situations, taxpayers enter into contracts for the provision of public services with resource-supplying organizations and with organizations providing housing and maintenance services. In the future, taxpayers sell these services to the population at state regulated prices.

When resolving this category of disputes, the courts are guided by the following. According to paragraph 2 of Art. 154 of the Tax Code of the Russian Federation (as amended before January 1, 2008) when selling goods (works, services), taking into account subsidies provided by budgets of various levels in connection with the use by the taxpayer of state regulated prices, or taking into account the benefits provided to individual consumers in accordance with federal legislation, the tax base is determined as the cost of goods (works, services) sold, calculated based on the actual prices of their implementation. This, in particular, is indicated in the resolutions of the Federal Antimonopoly Service of the Urals District of March 26, 2007 N F09-1891 / 07-C3, of January 15, 2007 N F09-11730 / 06-C2, of January 9, 2007 N F09-11475 / 06-C2.

The above funds allocated to taxpayers from the budget to compensate for actually received losses associated with the use of state regulated prices for goods (works, services) are not included in the tax base for the purposes of calculating VAT, since the receipt of these funds is not related to settlements for payment for goods (works, services) sold.

Arbitration courts indicate that enterprises should not include in the VAT tax base the amount of subsidies received from the budget to cover losses (compensation of expenses).

For example, in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated February 27, 2007 N F08-621 / 2007-267A, it is noted that the company reasonably did not include in the tax base for calculating VAT the funds received from the budget to compensate for losses from the electricity supply to the population, since from the meaning of subparagraph 2 of paragraph 1 of Art. 162 of the Tax Code of the Russian Federation does not follow that these amounts can be included in the taxable base for this species tax [such funds cannot be regarded as received for goods (works, services) sold in the form of financial assistance, to replenish special-purpose funds, to increase income, or otherwise related to payment for goods (works, services) sold].

A similar approach to solving the issue under consideration can be traced in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 08.02.2005 N 11708/04; determination of the Supreme Arbitration Court of the Russian Federation of 22.08.2008 N 2082/08; resolutions of the Federal Antimonopoly Service of the Moscow District dated March 15, 2007 N KA-A40 / 546-07; FAS of the North-Western District dated March 20, 2008 N A05-5719 / 2007; FAS of the Volga-Vyatka District dated April 16, 2007 N A38-1906-17 / 201-2006; FAS of the East Siberian District of 21.02.2008 N A33-34293/05-F02-7283/06, of 13.02.2008 N A33-7744/07-F02-332/08, of 10.01.2008 N A33-14544/06-F02-9589/07, No. A33-5205/06-F02-8936/07 dated November 29, 2007; Federal Antimonopoly Service of the Urals District dated 09.10.2007 N F09-8251/07-S2, dated 16.08.2007 N F09-6433/07-S2.

A similar approach is applied to organizations that sell goods (works, services) at reduced rates and receive subventions for the purchase of fuel in this regard (determination of the Supreme Arbitration Court of the Russian Federation of December 14, 2007 N 15928/07, resolution of the Federal Antimonopoly Service of the Far Eastern District of August 3, 2007 N F03-A24 / 07-2 / 2387).

Readers of the journal should pay attention to the fact that the Federal Law of November 29, 2007 N 284-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation" outlined the second and third paragraphs of paragraph 2 of Art. 154 of the Tax Code of the Russian Federation in the following edition: "When selling goods (works, services), taking into account subsidies provided by budgets budget system Russian Federation in connection with the use by the taxpayer of state regulated prices, or taking into account the benefits provided to individual consumers in accordance with the law, the tax base is determined as the cost of goods (works, services) sold, calculated on the basis of their actual sales prices.

The amounts of subsidies provided by the budgets of the budgetary system of the Russian Federation in connection with the use by the taxpayer of state regulated prices, or benefits provided to individual consumers in accordance with the law, are not taken into account when determining the tax base.

With the adoption of the above amendments to the Tax Code of the Russian Federation, the number of litigations on the analyzed problem, in our opinion, should be reduced.

1.3. Is it necessary to include in the tax base for VAT the amount of increased payment for exceeding the contractual values ​​of energy consumption

Arbitration courts emphasize that VAT is subject to the proceeds received by the organization from consumers in payment for electricity consumed in excess of the amounts specified in the contract (increased payment).

In particular, in one of the disputes, the court found it lawful to hold the taxpayer liable for non-payment of VAT, which arose in connection with the exclusion from the tax base of the amounts of revenue received from consumers in payment for electricity consumed in excess of the amounts specified in the contract (increased fee).

In the course of counter audits, the tax authority established that this tax was accepted from energy consumers for deduction in full, and the company did not make recalculations with energy buyers and return the tax amounts to them.

These conclusions were made in the resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District of December 21, 2006 N A43-14347 / 2005-11-498, of December 7, 2006 N A43-14347 / 2005-11-498, of March 14, 2006 N A43-11947 / 2005-36-443 .

1.4. Is it necessary to include in the tax base for VAT the amount of fines and penalties for exceeding the limits of electricity consumption

The tax authorities sometimes conclude that the enterprise, in pursuance of paragraph 2 of Art. 153 of the Tax Code of the Russian Federation should include in the taxable base for VAT the amount of revenue received from the sale of electricity in excess of the contractual value and which includes sanctions for exceeding the limits of electricity consumption.

Meanwhile, the legislation on taxes and fees does not contain provisions on the inclusion in the VAT taxable base of the amounts of accrued sanctions paid for non-performance or improper performance of contracts.

Penalties in civil law relations are not the sale of goods (works, services) in the sense given to this concept by Art. 38 of the Tax Code of the Russian Federation, that is, they are not subject to VAT, listed in Art. 146 of this Code.

Disputed amounts of money are considered a fine for non-performance or improper performance of contracts for the supply of electricity for industrial and non-industrial consumers. Under such circumstances, the courts come to the conclusion that the tax authority has no grounds for accruing disputed amounts of VAT to enterprises.

Article 162 of the Tax Code of the Russian Federation does not contain provisions on increasing the tax base for VAT by the amount of fines and penalties. Interest (penalty) is paid in excess of the price of the goods and is not related to settlements for the sale of goods (works, services). Thus, in one of the disputes, the court indicated that the disputed amount was received by OAO Khabarovskenergo in pursuance of judgments on the recovery in favor of the company of interest (penalties) for late payment of electricity received by contractors (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated April 12, 2006 N F03-A73 / 06-2 / 671).

Similar conclusions were made in the resolutions of the Federal Antimonopoly Service of the Urals District dated March 6, 2008 N F09-1104 / 08-C2, dated March 19, 2007 N F09-1687 / 07-C2; Federal Antimonopoly Service of the Volga District dated January 27, 2006 N A06-2024U / 4-21/05.

2. Difficult situations related to the exercise of the right to deduct VAT

2.1. Problems of VAT refunds by enterprises receiving subsidies from the budget to cover losses from the use of state regulated prices

In a number of cases, power industry enterprises receive funds from the budget to cover losses associated with the sale of works and services by them at state regulated prices or with the use of benefits provided by law to individual consumers.

The tax authorities believe that since the payment of VAT in such cases is made at the expense of funds received from the budget in the form of subsidies, the enterprise does not bear the real costs of paying VAT, and therefore it has no right to a refund of this tax. Such claims were the subject of judicial review in the decisions of the Federal Antimonopoly Service of the Urals District dated March 4, 2008 N F09-1006 / 08-C2; FAS of the East Siberian District dated September 27, 2007 N A33-7488 / 06-F02-6909 / 07.

Meanwhile, the courts decide this issue differently, referring to Art. 176 of the Tax Code of the Russian Federation, according to which, if at the end of the tax period the amount of tax deductions exceeds the total amount of tax calculated on transactions recognized as an object of taxation, then the resulting difference is subject to compensation (offset, refund) to the taxpayer.

The Tax Code of the Russian Federation does not establish any restrictions on the above rights of organizations selling goods (works, services) at regulated prices and receiving subsidies in connection with this. In addition, the courts point out that there is no evidence of the allocation of the above subsidies directly for the reimbursement of VAT.

These conclusions are made in the resolutions of the Federal Antimonopoly Service of the Moscow District dated 05/08/2007 N KA-A40 / 3318-07; Federal Antimonopoly Service of the East Siberian District of 16.01.2008 N A33-7811/07-F02-9870/07, of 10.01.2008 N A33-14544/06-F02-9589/07, of 24.10.2007 N A33-14657/06-F02-8172/07 , dated 19.09.2007 N A33-7428/06-Ф02-6484/07, dated 18.09.2007 N А33-6773/06-Ф02-6418/07; Federal Antimonopoly Service of the Volga District dated February 14, 2008 N A49-3457 / 07; FAS of the Ural District dated 05/23/2007 N F09-3762 / 07-C2.

2.2. Is the organization entitled to receive a deduction of the amount of VAT attributable to technological losses

Tax authorities often deny organizations the right to deduct VAT, since a prerequisite for accepting VAT deductions on purchased goods (electricity) is their use for transactions recognized as subject to VAT. According to the tax authorities, the economically unjustified expenses for technological losses included in the cost of electricity were not used in transactions subject to VAT. A similar dispute was the subject of litigation in the decision of the Federal Antimonopoly Service of the West Siberian District dated September 27, 2006 N F04-6119 / 2006 (26612-A27-15).

However, the courts note that organizations lawfully, in compliance with the requirements of Art. 171 and 172 of the Tax Code of the Russian Federation, tax deductions were presented for VAT attributable to technological losses. The discrepancy between the amount of technological losses of electric and thermal energy, provided for when setting tariffs, and the actual value of the technological losses of the organization does not serve as a basis for restoring the disputed amount of VAT accepted by the taxpayer for deduction and attributable to the difference between the amount of actually incurred and the amount of established technological losses of electric and thermal energy. This, in particular, is indicated in the resolution of the FAS of the Far Eastern District of May 11, 2007 N F03-A51 / 07-2 / 974.

In another situation, which became the subject of litigation in the decision of the Federal Antimonopoly Service of the West Siberian District dated July 17, 2007 N F04-4766 / 2007 (36332-A46-25), it was stated that all the electricity received by the company was used for technological purposes in the production process in accordance with the terms of the concluded power supply contract. The use of electricity in technological processes inevitably associated with its losses in the process of consumption. Thus, payment for losses arising from the transmission of electricity for production needs was a necessary payment for the purchase of energy spent for technological purposes. The costs of paying for electricity losses were economically justified, in connection with which the company reasonably included VAT in tax deductions.

2.3. How to confirm the right to deduct VAT from the amount of compensation for electricity losses

Sometimes the tax authorities prohibit the deductibility of VAT paid on the purchase of electricity in order to compensate for technological losses that occur during its transmission through electric networks.

In such situations, the tax authorities believe that the organization does not have the right to apply the VAT deduction, since the goods (electricity) were not actually purchased and not sold, since the losses of electricity were actually paid for, which cannot be used in the future for transactions subject to VAT; at the same time, the organization did not provide actual services for the transmission of electricity.

Meanwhile, arbitration courts take a different approach, noting the following. According to paragraph 3 of Art. 32 of the Federal Law of March 26, 2003 N 35-FZ "On the Electric Power Industry", the amount of electrical energy losses not taken into account in the prices for electrical energy is paid by the grid organizations in whose networks they occurred, in the manner established by the rules of the wholesale and (or) retail markets. At the same time, grid organizations are obliged to conclude, in accordance with the specified rules, contracts for the purchase and sale of electrical energy in order to compensate for losses within the amount not taken into account in the prices for electrical energy.

Thus, in the resolution of the Federal Antimonopoly Service of the Urals District dated January 24, 2008 N F09-11482 / 07-C2, it was noted that the taxpayer was supplied with electricity as compensation for technological consumption (losses) at the established tariff. Therefore, the court rejected the tax authority's arguments that the taxpayer did not have a mandatory contract for the sale of electricity, that the company's expenses for the purchase of non-existent goods were unlawful, and that they did not provide electricity transmission services.

In addition, the absence of a regulation on the norms of electricity losses approved by the competent authority at the time being checked did not in itself indicate that the taxpayer had overestimated VAT tax deductions.

Since the taxpayer has met all the conditions for the application of tax deductions, established by Art. 171 and 172 of the Tax Code of the Russian Federation, the court concluded that the tax authority had no grounds for not accepting VAT deductions.

A similar legal position is given in the resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District of August 18, 2006 N A17-4770 / 5-2005, the Federal Antimonopoly Service of the Central District of January 20, 2006 N A14-6288 / 2005211 / 34.

3. Analysis of other tax disputes in the field of electric power industry

3.1. Problems of confirming the status of an energy supplying organization and the legal nature of operations for the sale of electricity

In practice, taxpayers enter into contracts for the supply and consumption of electricity, according to which they are actually sub-subscribers, since the energy supplier is a subscriber of the energy supply organization.

The tax authorities refuse to refund VAT, pointing out that the transaction for the transfer of electricity from the supplier to the taxpayer is not subject to VAT, since the supplier is not an energy supply organization and, accordingly, invoices for electricity are not issued by a non-energy supply organization.

Meanwhile, the courts do not agree with these arguments of the tax authorities and indicate the following. According to Art. 1 of the Federal Law of April 14, 1995 N 41-FZ energy supply organization is an economic entity that sells produced or purchased electrical and (or) thermal energy to consumers.

Based on Art. 545 of the Civil Code of the Russian Federation (CC RF), a subscriber can transfer energy received by him from an energy supply organization through an attached network to another person (sub-subscriber) only with the consent of the energy supply organization. In this case, the subscriber acts in the above case in relation to the sub-subscriber as an energy supply organization and, accordingly, an agreement for the transmission of electricity is concluded between the subscriber and the sub-subscriber. Therefore, the energy supplier, as an economic entity that sells purchased electrical energy, is an energy supply organization.

Electricity, being an object of civil rights, refers to movable property, in respect of which, in accordance with paragraph 1 of Art. 539 of the Civil Code of the Russian Federation, an energy supply contract can be concluded.

In this regard, the courts invalidate the arguments of the tax authorities that transactions for the sale of electricity to organizations are not transactions for the sale of goods for VAT purposes. Therefore, the organization has the right to apply tax deductions (Decree of the FAS of the East Siberian District of October 18, 2007 N A19-3286 / 07-30-Ф02-7751 / 07).

3.2. Problems of confirming the fact of acceptance of electricity for accounting

In a number of cases, tax authorities refuse VAT refunds to enterprises, arguing that there is no evidence that energy resources have been taken into account. Such claims are contained, for example, in the resolutions of the Federal Antimonopoly Service of the East Siberian District dated October 9, 2007 N A33-6774 / 06-F02-6612 / 07, dated September 18, 2007 N A33-6771 / 07-F02-6427 / 07.

However, the courts reject such arguments, noting the following. In accordance with the terms of the contracts concluded by the enterprise with resource-supplying organizations, it is envisaged to determine the volume of consumed resources based on the readings of metering devices.

Taking into account the peculiarities of the purchased goods and the specifics of the execution of energy supply contracts, the courts do not take into account the references of the tax authorities to the lack of documents from the taxpayer confirming the acceptance of the acquired resources for accounting.

These conclusions are made in the resolutions of the Federal Antimonopoly Service of the East Siberian District dated January 16, 2008 N A33-7811 / 07-F02-9870 / 07, dated November 29, 2007 N A33-5205 / 06-F02-8936 / 07.

3.3. Difficult issues of applying the 0% tax rate on electricity exports

Organizations supplying electricity for export face serious problems.

In a number of cases, the tax authorities believe that the services of customs brokers, as well as services for optimizing electrical regimes, are directly related to the sale of electricity for export and are subject to VAT at a rate of 0% on the basis of subparagraph 2 of paragraph 1 of Art. 164 of the Tax Code of the Russian Federation. Therefore, organizations are not entitled to claim reimbursement from the budget of VAT paid to counterparties at a rate of 18% as part of the price of these services in violation of Art. 3, 168 and 169 of the Tax Code of the Russian Federation.

At the same time, the courts point out that the list of those subject to subparagraph 2 of paragraph 1 of Art. 164 of the Tax Code of the Russian Federation of services is not exhaustive and is not limited only to services for the organization and implementation of the transportation process.

Thus, the export of goods, including electricity, outside the customs territory of the Russian Federation in the customs regime of export is impossible without the declaration procedure, which is directly related to the sale of goods for export and is a prerequisite for the legality of export.

At the same time, for tax purposes it has no legal significance, before or after the physical export of a particular product, it is allowed or required to declare it according to customs rules. These conclusions are made in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 19, 2008 N 12371/07; Federal Antimonopoly Service of the Moscow District of May 30, 2007 N KA-A40 / 3073-07, of October 5, 2007 N KA-A40 / 10092-07-P, of October 17, 2006 N KA-A40 / 9790-06.

In another situation, the tax authority challenged the validity of applying the VAT rate of 0% for electricity supply operations on the basis of a contract with a branch of a Russian legal entity(and not with a foreign legal entity).

However, the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 03.10.2006 N 7057/06 states that when resolving the dispute, it was necessary to take into account the peculiarities of legal regulation of economic relations between economic entities of the Russian Federation and the Republic of Kazakhstan, provided for in the Agreement of 09.10.2000 between the Government of the Russian Federation and the Government of the Republic of Kazakhstan on the principles of levying indirect taxes in mutual trade, which applies to economic entities (taxpayers) of states. Branch Russian company was a VAT payer in accordance with the legislation of the Republic of Kazakhstan, respectively, transactions were recognized as export, subject to VAT at a rate of 0%.