Problem: The selling organization does not transmit the invoice. What should the buyer do? VAT deduction if the supplier refuses invoices The supplier does not provide an invoice what to do

The Arbitration Court of the Moscow District, in Resolution No. F05-15674/2017 dated October 30, 2017, recognized that the buyer does not have the right to demand an invoice from the supplier for purchased products as part of a civil dispute.

Subject of dispute: The organization required the supplier to provide an invoice for the purchased products in order to obtain a VAT deduction. The supplier refused to issue an invoice, considering that it did not have such an obligation.

What were they arguing about?: invoice for 720,000 rubles

Who did win: supplier organization

The supplier did not issue an invoice to the purchasing organization for the purchased products. As a result, the organization was unable to obtain a VAT tax deduction. This circumstance was the reason for going to court.

In court, the company demanded that the supplier be obliged to issue a properly executed invoice for the cost of the shipped products. The courts refused to satisfy this requirement. The cassation court confirmed the validity of the court decisions, pointing to the following circumstances.

The supplier fully fulfilled its obligations to the buyer - the goods were delivered on time and fully complied with the terms of the contract. The goods were received by the buyer according to the acceptance certificate, fully paid for and registered.

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At the same time, no primary documents confirming the taxpayer’s expenses and his right to apply tax deductions (invoice and delivery note) were transferred with the goods. The organization sent a claim to the supplier for the provision of documents, which was left unanswered, and the documents were never received by the organization.

However, such behavior of the supplier does not mean that he violated any legal requirements, and the buyer can request disputed documents from him.

The invoice is neither a thing that the defendant was obliged to deliver to the plaintiff, nor an accessory to the goods. Also, an invoice is not a document related to the product. This document is used in the field of tax legal relations. At the same time, the norms of the Tax Code of the Russian Federation are not applicable to such disputes (on the requisition of documents within the framework of civil relations).

The terms of the contract did not establish a direct obligation for the defendant to transfer the invoice to the buyer. Meanwhile, counting on declaring a VAT tax deduction in the future, the organization had to stipulate in the contract the supplier’s obligation to submit an invoice. And also stipulate a penalty for failure to submit primary documents.

Otherwise, the supplier does not have any obligation to transmit the invoice to the buyer. In this regard, the cassation court refused to satisfy the stated requirements of the organization.

At first glance, resolving the problem is not difficult. To do this, it is enough to include in the contract with the supplier (or contractor) a condition according to which the latter is obliged to issue an invoice issued in accordance with the requirements established by law. And for failure to comply with the instructions in the same contract, sanctions should be provided, for example, the accrual of penalties, the amount of which will be equal to the amount of the “lost” VAT.

It is really easy to set such conditions. But will they “work” if, due to the partner’s violations, the tax authorities actually deny the company a VAT credit? Alas, there is no clear answer to this question. The problem is that the obligation to expose and the recovery of damages are, so to speak, in different “legal fields”. The first concept is from the field of public law relations, i.e. those in which one of the parties is the state, and the second is from the field of private law. Therefore, by stipulating the above condition in the contract, business partners, i.e. subjects of private law, try to regulate public law relations. It is from this “place” that disagreements between lawyers, tax authorities and judges begin.

note

If the supplier does not issue an invoice, but the taxpayer still has time to claim a refund, the latter has the right to file a claim with the arbitration court and oblige the business partner to do this as soon as possible. The Supreme Arbitration Court announced this back in 2004 (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 30, 2004 No. 101/04). However, it should be remembered that such a dispute will be resolved positively only if the corresponding obligation of the counterparty was enshrined in the contract.

Some experts believe that the amount of VAT transferred to the budget cannot be considered a “civil” loss. Because a subject of private law cannot require the counterparty to comply with the rules of another area of ​​law. Accordingly, there cannot be “civil compensation” on the basis of Article 15 of the Civil Code of the Russian Federation. For example, in one of the decisions, the arbitration judges directly stated that such “...the plaintiff’s demand arises from tax legal relations, since the issues of applying tax deductions are the subject of tax law and are not regulated by civil law...” (resolution of the Federal Antimonopoly Service of the Ural District dated April 27, 2010 No. A07-14206/2009; similar practice - decisions of the Federal Antimonopoly Service of the Volga-Vyatka District dated September 24, 2008 No. A11-11888/2007-K1-9/605-40 and dated June 9, 2008 No. A17-4226 /13-2007, FAS of the East Siberian District dated September 26, 2006 No. A19-9546/06-16-F02-4769/06-S2, FAS of the Far Eastern District dated January 24, 2005 No. F03-A51/04-1 /3254; FAS Moscow District dated November 19, 2009 No. KG-A40/11937-09, FAS Ural District dated April 27, 2010 No. Ф09-2837/10-С2; as well as the resolution of the Sixteenth Arbitration Court of Appeal dated December 29, 2008 No. 16AP-2481/08, etc.).

Opinion of judges, tax authorities and lawyers

Other judges, tax specialists and lawyers believe that in such a situation there is a kind of transfer of public law concepts into the sphere of private law by consolidating the former. Accordingly, if the transaction partner does not issue an invoice, this can be qualified as a violation of the obligation enshrined in private law -legal agreement, and calmly go to court. Therefore, Articles 15 and 309 of the Civil Code of the Russian Federation should be used here. There are currently indeed cases of recovery of damages from a partner in the form of an amount (although very few - for example, decisions of the Federal Antimonopoly Service of the Volga District dated August 26, 2009 No. A65-25888/2008, the Seventeenth Arbitration Court of Appeal dated December 14, 2010 No. 17AP -11862/2010-GK in case No. A50-12478/20104, Eighth Arbitration Court of Appeal dated February 14, 2013 in case No. A75-6948/2012, Ninth Arbitration Court of Appeal dated October 10, 2013 No. 09AP-32624/2013 -GK in case No. A40-95423/2012 and dated January 16, 2012 No. 09AP-32926/2011-AK in case No. A40-48916/11-11-403). Moreover, in the “arsenal” of decisions of the arbitrators there is a resolution of the Supreme Arbitration Court (PP of the Supreme Arbitration Court of the Russian Federation dated April 9, 2009 No. 16318/08 in case No. A40-37607/07-51-379), from which it is clear that the servants of Themis considered the issue of refusal to refund VAT overpaid to the seller by the buyer due to an erroneous tax rate, unjust enrichment of the seller, i.e. from the point of view of civil law. And despite the fact that in that dispute it was not about losses, it is quite possible to use it as an additional, albeit indirect, argument. However, it should be remembered that if a company decides to go to arbitration to recover from a partner an amount equal to the uncollected VAT deduction, then it will need, in particular, to prove to the arbitrators that the inspectors refused precisely because there were no documents among the documents provided. invoices. But here another difficulty may arise.

“The fact is,” explains tax lawyer Sergei Voronin, “that the Constitutional Court once already indicated, and the arbitration courts supported the conclusion that the invoice is not the only document confirming the right to and the latter can be fully confirmed by other papers indicating payment value added tax (definition of the Constitutional Court of the Russian Federation dated October 2, 2003 No. 384-O, resolution of the Federal Antimonopoly Service of the West Siberian District dated March 17, 2011 No. A70-1837/2010, Federal Antimonopoly Service of the Moscow District dated September 28, 2011 No. A40- 143191/10-28-1189, determination of the Supreme Arbitration Court of the Russian Federation dated January 27, 2011 No. VAS-63/11). Thus, it will be more difficult to prove in arbitration that the deduction could not be obtained precisely because of the lack of an invoice. Therefore, before going to court, the affected company should try to obtain a deduction using other documents. And only if the tax authorities refuse her, should she go to arbitration. In this case, one of the main evidence will have to be this very refusal, which clearly states that the taxpayer’s demands are not supported precisely because of the lack of an invoice.”

LLC tax audit. The tax office conducts a counter-inspection of the LLC supplier. The supplier does not provide primary delivery documents. Does the tax office recognize expenses for the purchase of goods from this supplier in this case?

Answer

The mere fact of a counterparty’s failure to provide documents during a counter-inspection is not grounds for deducting expenses for primary documentation from such a counterparty. However, expenses may be considered unjustified if the tax authorities prove that the counterparty is unreliable and that the organization received an unjustified tax benefit in connection with the conclusion of dubious transactions. To prevent this from happening, the tax office must provide confirmation that the organization has taken measures to verify the integrity of the counterparty. Measures that indicate the prudence and caution of the purchasing organization when choosing a counterparty, in particular, include:

In this case, the organization’s actions must be recognized as prudent, and the expenses taken into account.

Can the tax office deprive the purchasing organization of the right to deduct VAT if during an audit it was discovered that the supplier who issued the invoice does not submit reports to the tax office?

Yes, it can, if it is proven that the use of the deduction resulted in an unjustified tax benefit.

A tax deduction on the invoice of such a supplier can be qualified as unreasonable, and the actions of the purchasing organization are recognized as imprudent and careless (clause , and resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 12, 2006 No. 53).

It should be noted that the mere fact of a counterparty submitting tax reports is not evidence of its reliability. The reporting may be falsified, and the inspectorate can only verify its accuracy during an on-site tax audit. Therefore, even if the tax office with which the counterparty is registered received confirmation that it is submitting reports, this is not enough to recognize the counterparty as a truly operating organization. The reliability of the counterparty should be assessed according to several criteria in combination. Measures that indicate the prudence and caution of the purchasing organization when choosing a counterparty, in particular, include:

receiving from the counterparty a copy of the tax registration certificate;

checking the fact of registration of the counterparty in the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs;

obtaining a power of attorney or other document authorizing a person to sign documents on behalf of the counterparty, as well as a copy of his identity document;

obtaining information about the actual location of the counterparty, its trading or production areas;

use of official sources of information characterizing the activities of the counterparty (for example, published financial statements);

assessment of the possibility of the counterparty actually fulfilling the terms of the contract.

This is stated in letters from the Russian Ministry of Finance.

Thus, if, before accepting VAT for deduction, an organization takes measures to verify the integrity of the counterparty, its actions must be recognized as prudent. Otherwise, the inspectorate may accuse the organization of receiving an unjustified tax benefit and deprive it of the right to a tax deduction.

In arbitration practice, there are examples of court decisions confirming the legality of this approach (see, for example, the definitions of the Supreme Arbitration Court of the Russian Federation, decisions of the FAS, the Moscow District, the East Siberian District, the North Caucasus District, the Far Eastern District).

However, there is also the opposite arbitration practice. According to many judges, in this situation the organization is not deprived of the right to deduction, since the fact that the counterparty violated its tax obligations does not in itself constitute evidence that the organization received an unjustified tax benefit. The fact is that a tax benefit can be recognized as unjustified only if the inspection proves one of the following facts:

the organization was aware of violations committed by the counterparty, in particular, due to the fact that the organization and its counterparty are affiliated or interdependent entities;

The activities of the organization (or its interdependent persons) are aimed at carrying out transactions primarily with counterparties who do not fulfill their tax obligations.

2. From the article The counterparty ignored the oncoming traffic

What you need to do: Within five working days from the date of receipt of the message from the tax authorities, send them written explanations.

By law, the company is not obliged and cannot be held responsible for the inaction of the counterparty. Therefore, if a message comes from the inspection demanding an explanation as to why the counterparty did not submit documents at the counter inspection, then it is not necessary to respond to such a message. But we still recommend preparing written explanations. And send them to the Federal Tax Service within five working days from the date of receipt of the message (). Firstly, it will protect you from a fine. Secondly, from additional charges on the desk audit of the declaration.

The company's counterparties do not always provide documents to inspectors as part of the counter inspection. In such a situation, tax officials sometimes send a message to the company itself demanding clarification. And for failure to provide information, they threaten to fine the director of the company in the amount of up to 4,000 rubles. ().

After all, for inspectors, ignoring a counter is always a sign that the organization being inspected is working with an unreliable counterparty. And this immediately calls into question the reality of her transactions and, accordingly, the legality of the declared deductions and written-off expenses.

The company’s task is to convince auditors that it works only with reliable, active, proven organizations. In addition, it should be clear from the explanations that the company has done everything possible to contact the counterparty and get it to promptly fulfill the oncoming requirement.

Therefore, immediately after receiving a message from the inspection, you need to contact the counterparty and find out what is the reason for his silence.

The reasons could be anything. For example, tax officials sent a request by mail and it was lost. The company moved to another office, and the demand came to the old address. The documents were sent, but due to the fact that the company is located in another region, they got lost in transit. Or the chief accountant of the counterparty was on vacation and there was no one to submit the papers on time.

In the explanations, you need to write how the counterparty explained his silence and approximately when you can expect the necessary papers from him. And also clarify what date the conversation took place, provide the phone number you were able to reach, and your current email address. If the request for the counter is lost, you need to ask the Federal Tax Service to send it to the counterparty again.

If, despite all efforts, it was not possible to find a counterparty, the explanation can say that the company does not yet know the reasons for the failure to provide documents, but will find out about them. And as soon as something becomes known, he will immediately report it to the inspectorate.

Electronic newspaper

From October 1, 2014, it is possible to refuse invoices under special regimes - the supplier has the right not to issue invoices to customers exempt from VAT. At the same time, you can register a primary document in the sales book - a shipping invoice or work acceptance certificates (letter dated 10/09/14 No. 03-07-11/50894). But it is not clear how the supplier should claim deductions and what to register in the purchase book if he completed the transaction without an invoice, and then provided a discount, returned the advance payment, or the buyer refused the goods. We discussed everything about the refusal of invoices under special regimes together with specialists from the Federal Tax Service.

Situation #1
The buyer returned the goods in a simplified manner

What to register: invoice and return certificate

As a general rule, if goods are returned by customers under simplified conditions, the supplier claims deductions based on their own invoices. When he returns the entire shipment, he records the original invoice in the purchase ledger. When returning part of the goods - an adjustment (letter dated 05.14.13 No. ED-4-3/8562@). But from October 1, these papers need not be drawn up.

As we found out at the Federal Tax Service, the deduction can be claimed on the basis of the primary tax. If the buyer has returned all the goods, the supplier records his shipping invoice in the ledger. And if it is part of a batch, then the basis for the deduction will be the buyer’s invoice or return certificate. The supplier has the right to register the document in the purchase book in the same columns as the adjustment invoice. That is, in column 5 - write down the number and date of the primary item, and in columns 15 and 16 - the difference in cost and the amount of VAT.

Situation No. 2
The supplier provided a discount to the company for a special treatment

What to register: price change agreement or notice

The supplier has the right to claim deductions if he provides the buyer with a discount that reduces the cost of previously shipped goods (clause 2.1 of Article 154 of the Tax Code of the Russian Federation). As a general rule, the basis for the deduction is the supplier's adjustment invoice. But if the buyer is simplified, and the company refuses to draw up invoices, then there is no need to issue an adjustment invoice. The Federal Tax Service specialists we interviewed believe that a deduction can be claimed on the basis of an agreement to change the price. The same document must be registered in the purchase book: in column 5 - write down the number and date, and in columns 15 and 16 - the amount of the discount and VAT.

Situation No. 3
The supplier returned the advance payment

Upon receipt of an advance payment from the buyer, the company issues an advance invoice and pays VAT. And if the parties terminate the contract and the supplier returns the money, then he claims VAT for deduction on the basis of his prepayment invoice (clause 22 of Appendix 4 to the Decree of the Government of the Russian Federation dated December 26, 2011 No. 1137).

By agreement with the buyer, the supplier has the right not to issue any invoices - both shipping and advance. Then, when returning money, you can make entries in the purchase book based on the return payment slip or consumables, if the money is given in cash. In column 3 you need to write down the number and date of the document, and in columns 15 and 16 - the amount of the returned advance and VAT.

What to record in books if there are no invoices

In the sales book:

When shipping - a shipping invoice;

When performing work (rendering services) - an act of completion of work (rendered services);

Upon receipt of an advance payment - the buyer's payment.

In the shopping book:

When returning the entire consignment of goods - a shipping invoice;

When returning part of the goods - the buyer’s invoice or return certificate;

When providing discounts - agreement on price changes;

When returning an advance payment - a payment slip or consumables for a refund.

How this article will help: We will tell you what measures to take if your suppliers or buyers do not provide you with documents for a long time.

What it will protect you from: You won’t have to recalculate your income tax or VAT every time because your counterparties have delayed the primary invoice or invoice.

As an accountant, it is important for you to receive primary documents and invoices from your counterparties on time. After all, if the papers arrive late in the next quarter, only then will it be possible to take into account expenses and claim input VAT deduction. That is, later than it could have been if you had received documents from your counterparties on time.

Moreover, difficulties arise when documents are delayed by your suppliers. And in case buyers do not return your primary copies for a long time. In this article we will provide practical recommendations on what to do if partners are constantly delaying paperwork. Choose the tips that suit you.

We also recommend that you look at the table below. There we showed how the fact that documents from partners were received after the close of the quarter would affect taxes. Moreover, you can see what risks arise if the papers are delayed by your buyers. And vice versa, when suppliers do not deliver documents on time.

What do you do most often if counterparties delay documents?

Tip one: specify in the contract how you will exchange documents with the counterparty

Suppose you have a counterparty with whom you have been working for a long time, but you often receive documents from them late. Another situation: you are just about to enter into a long-term contract with a partner and assume that you will have to frequently exchange papers with him.

In such cases, we recommend establishing special conditions either in a new contract or in an additional agreement to the existing one. Namely, write down in what ways you and your partner will exchange papers, at whose expense the transfer will take place.

Let's say the counterparty is in the same city as you. Then establish that the partner will have to deliver the documents by courier, and indicate within what time frame. Or perhaps you will send your representative for the papers. In this case, also do not forget about the deadlines.

What if the partner is in another city? Write down in the contract a condition that the parties will exchange documents by express mail. And since its services are more expensive than regular mail, specify in the agreement at whose expense the documents will be sent.

Of course, this is only possible if the counterparty agrees to include such a condition in the contract. That is, when both parties to the contract want to restore order in the document flow.

Another piece of advice for when you exchange a large number of documents with a counterparty. It would be useful to stipulate in the agreement that at the end of the month the parties send each other a list of documents received for signature and sent.

This way you can control which documents you have not yet received from your partner. We have provided a sample agreement with a clause on the exchange of documents below.

Experience shared by: Olesya Kachan- Ch. Accountant LLC "Business Alliance":

In contracts we indicate: copies of documents are correct as long as there are no originals.

Tip two: ask buyers for scanned copies of documents

Here is another piece of advice in case your buyers (customers) have still not returned some copies of invoices and acts to you. First, contact them and find out what the reason is. Perhaps the buyer has not yet signed the deed or invoice. Let's say because the goods are in transit. Or the partner’s director did not have time to sign the act.

In this situation, ask the buyer's accounting department to contact you as soon as the documents are ready. And ask them to send you scanned copies of signed documents. This will help you make sure that the buyer agreed with the data in the primary account.

Let us explain why it is still important to obtain signed originals of your own documents.

In general, it is safe to recognize income in tax accounting in the quarter in which you issued invoices or acts (transferred goods, provided services or performed work). That is, do not wait for counterparties to sign them. Officials and judges insist on this. Examples are the letter of the Ministry of Finance of Russia dated November 13, 2009 No. 03-03-06/1/750 and the determination of the Supreme Arbitration Court of the Russian Federation dated December 8, 2010 No. VAS-15640/10. Officials and judges argue for this by saying that when calculating income tax, income from sales is determined on the date when ownership of goods (work, services) is transferred to the buyer. And this, according to officials, happens when the supplier signs the primary agreement.

VAT also needs to be charged immediately after you issue an invoice to the buyer. After all, the tax base is determined on the date of shipment of goods or transfer of work and services. This is directly stated in Article 167 of the Tax Code of the Russian Federation. That is, here too, it would seem, it is not necessary to wait for your copies signed by the counterparty.

Still, we recommend getting buyers to return the papers with signatures to you. Without a primary document, you may be fined for gross violations of the rules for accounting for income and expenses under Article 120 of the Tax Code of the Russian Federation. The size of the sanction is 10,000 or 30,000 rubles.

Carefully!

Recognizing expenses based on copies of documents alone is risky.

There is another reason why it is still worth requesting primary information from buyers. Perhaps the counterparties did not agree with the results of work, services, or refused some goods. This means that your revenue and VAT tax base may change. You will only find out about this after receiving initial feedback from buyers. And if you have already reflected the transactions without waiting for the signature of the second party, then you will have to adjust the revenue and the amount of VAT.

But note: in the opposite situation, when documents are delayed by the supplier, recognizing expenses based only on scanned copies is risky. Tax authorities may simply not recognize such evidence without living signatures. In any case, you must have the originals of the primary documents from the seller in your hands.

Experience shared by: Valentina Ivoilova - Ch. accountant LLC "Consultant":

Most often, documents are delayed by service providers. If the originals are late, we exchange copies with our counterparties by email or fax. And then, of course, we wait for the original documents from the partners.

Frequently asked questions from practice about documents

The delivery note, which the buyer signed, was lost in the mail. We recognized expenses based on the scanned copy. Can inspectors require the original?

Yes, tax authorities may request original documents. The basis here is paragraph 2 of Article 93 of the Tax Code of the Russian Federation.

Is it possible to stipulate sanctions in the contract with the supplier in case he violates the deadlines for transferring documents?

Of course you can. But only if your counterparty does not object to this. In other words, if both parties to the contract are interested in establishing ideal order in the document flow.

We received a late invoice from the seller. Is it possible to deduct VAT in the current period on the basis that we have an entry in the journal of incoming documents?

No, tax authorities and judges do not agree with this (resolution of the Federal Antimonopoly Service of the North Caucasus District dated July 7, 2008 No. F08-3751/2008).

Can we be fined under Article 120 of the Tax Code of the Russian Federation for the absence of a primary income tax if we did not underestimate taxes?

Yes, if you do not have a primary income, then the auditors will consider this a violation under Article 120. It does not matter whether you have arrears or not. It’s just that in case of arrears the amount of the fine will be higher.

Tip three: send a letter to the director of the counterparty with a request to provide original documents

A conversation with the counterparty's accounting department does not always yield results. If there are still no documents, then it makes sense to write a letter addressed to the director of the partner (we have provided a sample below).

In the letter, demand that documents be provided as soon as possible. And explain to the counterparty what your company is risking due to the fact that he delays the documents.

Such a letter will also help if you reflected transactions based on scanned copies, and tax inspectors came to check you. Only here you should hurry up and, if possible, send the letter immediately electronically or by fax.

To quickly receive original documents from your counterparty, ask the director of your company for help. A letter on his behalf or a phone call can speed up the receipt of the necessary initial form and invoices.

But before sending the director to the partners, conduct a briefing. Explain to your boss why the originals are needed and what tax risks your company will face without the counterparty’s documents.

Experience shared by: Marina Artyushenkova- Ch. Accountant of Press Bureau LLC:

The question regarding documents that are being delayed by counterparties is very relevant for me! Mostly I write letters or call them. I convinced the director to help me - he also calls and writes.

Tip four: fill out the documents instead of the seller

It happens when you can’t wait for documents from the seller, it’s easier to fill out the initial form and invoices yourself instead. And then just give him the documents to sign.

Important detail

In exceptional cases, you can fill out the document for the supplier and give it to him to sign.

Yes, the buyer is not prohibited from filling out the primary form. Therefore, you can safely do this for the supplier (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ). Yes, you can also issue an invoice. Just fill in the details of the seller and the shipper where necessary.

It is clear that you should use this advice only in extreme cases. And even then when we are talking about two or three documents, and not about a large volume of papers. Naturally, you won’t be able to regularly fill out primary documents and invoices instead of your counterparty.