Is VAT payable when paying a penalty? Is a penalty for failure to fulfill obligations under a contract subject to VAT? Penalties are not subject to VAT because

The situation with the imposition of value added tax on various fines, penalties and penalties for violation of the terms of the contract has been controversial for a long time. Representatives of tax authorities demanded that the amounts of sanctions for unfulfilled contracts be included in the tax calculation base, lawyers were looking for ways to circumvent such requirements. In this article we will consider whether the fine is subject to VAT.

Reasons for disputes regarding the imposition of penalties/fines/VAT fines

The main reason for the long-term disputes on the issue under consideration was the one hundred and sixty-second article of the Tax Code of Russia ( NK clause 2.1), indicating that the taxpayer is obliged to increase the VAT base at the expense of all funds received by him for products or services sold by him (including through financial assistance, as funds for a special fund or otherwise tied to the sale of goods). If the buying company does not fulfill its part of the contract in the proper way (evades payment for the goods delivered, makes payment later than the agreement), then it is obliged to pay creditors for the amounts of debt and penalties. The amount of the penalty is determined by legislation or an agreement between organizations.

The answer to the question is not obvious: “Does the amount of penalties received increase the tax base of the seller-creditor? Is it included in the amount of funds received from the sale of products?” During the period from 2007 to 2016, the point of view of state authorities on the issue under consideration has changed significantly.

Is a fine subject to VAT: grounds for including fines in the base for calculating VAT

Until 2013, the Russian Ministry of Finance conveyed the following point of view: penalties, penalties that the seller received from the buyer for various violations of the contract for the delivery, production, and payment of goods are directly linked to payment for the specified goods or services. Referring to subparagraph two of the first paragraph one hundred and sixty-second of article of the Tax Code and paragraph two of the one hundred and fifty-third article, the ministry demanded that the amounts received in the form of penalties be taken into account in calculating the tax base for VAT. After this period, tax organizations stopped requiring that fines be included in amounts for calculating VAT, based on established judicial practice.

Is a fine subject to VAT: grounds for excluding fines and penalties from the base for calculating VAT

In 2008, a resolution was issued by the Presidium of the Supreme Arbitration Court of the Russian Federation ( № 11144 / 07 ), which recommended considering the amounts transferred by the buyer for violations of contract terms (fines, etc.) as a measure of liability for these violations (contractual obligations). In such a context, fines are not related to payment for purchased goods, do not fall within the scope of article one hundred sixty-two and are not subject to inclusion in the amounts for VAT withholding.

But the Ministry of Finance of the Russian Federation in a letter of 2015 ( № 03-07-11 / 64436 ) continues to emphasize the following point: if the penalties or fines specified in the contract do not really serve the purpose of forcing the buyer to comply with the conditions, but in fact are part of the pricing policy, i.e. affect the final cost of the product for the buyer-client, then such fines are necessarily subject to VAT.

Judicial practice shares the opinion that fines do not increase the VAT tax base

The Federal Arbitration Court for the Moscow District issued a ruling in 2011 ( No. A 40 – 33299 / 11 – 140 – 146), in which he confirmed that the amounts of money for penalties and interest accrued when using other people's money are not directly related to the payment of invoices for the products supplied, and are not subject to VAT. Similar decisions were made in other cases ( 2007, FAS Volga-Vyatka District, case number A 29 – 7483 / 2006; 2008, FAS Central District, case number A 54 – 3386 / 2006 – C21; 2008, FAS Moscow District, case No. A 41 – 3502 / 08; 2012, FAS Far Eastern District, case number A 51 – 14495 / 2011).

In 2015, the Supreme Court of the Russian Federation confirmed that penalties and fines have their own legal nature, which is not related to the objects of taxation. Based on this interpretation, the money that the company received in the form of penalties for failure to fulfill contractual obligations does not increase the amount subject to VAT ( No. A 40 – 20035/2014). Earlier, the Volga region courts came to similar conclusions ( 2015, FAS Volga District, case number F 06 – 3084 / 2015) and Moscow districts ( 2012, FAS Moscow District, case number A 40 – 71490 / 11 – 107 – 305).

The Federal Arbitration Court in the Central District ruled in 2008 that money received by the seller from the buyer in case of non-compliance with the terms of the contract does not increase the amount of VAT, because the fact of payment of penalties does not confirm the transfer of ownership of the products sold. This means that penalties are not included in the list of amounts that increase the cost of production.

Conclusions for law enforcement practice

Based on the explanatory letters of the Ministry of Finance of the Russian Federation and court decisions, we draw conclusions: if fines and penalties under a sales contract are not a hidden component of the formation of the cost of products, but are necessary only to stimulate compliance with the terms of the contract, then the seller paying taxes does not charge VAT on the amounts received fines or penalties (even if payment was late).

In the opposite situation, tax officials have the right to demand that the taxpayer take into account the specified amounts and pay VAT on them. You must be prepared to confirm that there are no hidden mechanisms for setting the price of a product in this way. Taxpayers who purchase goods under a contract, even if the terms of payment are not met, the work is performed poorly, etc., do not take part in accounting for amounts subject to VAT. In such a situation, it is permissible to refer to letters from the Ministry of Finance ( for example, letter No. 03 – 07 – 11/ 12363 of 2013. ), clarifications from the Office of the Federal Tax Service).

(for example, letter No. 19 – 11 / 11309 of 2011

Is the amount of the contractual penalty awarded by the Arbitration Court subject to VAT?

If a penalty is considered as a penalty for delay in fulfilling obligations, then it is not included in the VAT tax base.

If the payment of a penalty is related to payment for goods supplied (work performed, services rendered) or in essence the penalty is an element of pricing (a hidden form of payment), then it must be included in the VAT tax base (for examples, see the recommendations).

How to calculate VAT when receiving amounts related to payments for goods sold (work, services)

Fines, penalties, penalties

Situation: is it necessary to pay VAT on penalties in the form of fines and penalties received from the buyer (customer)

Depends on whether the penalty is related to payment for the order.

As a rule, receiving a penalty is due to the fact that the buyer (customer) does not fulfill or improperly fulfills the terms of the contract. The most common example is that a buyer fails to pay a supplier on time. By delaying payment for goods, the buyer unlawfully uses the money that he should have given to the supplier. In such cases, the resulting penalty is not related to payment for goods (work, services). It is considered as a penalty for delay in fulfilling obligations and is not included in the VAT tax base. By the way, on the same basis, there is no need to charge VAT on legal interest that the seller has the right to collect from the counterparty under the Civil Code of the Russian Federation. After all, legal interest is also accrued not for goods sold, but for the use of other people's money. In essence, they are similar to interest on a commercial loan, which also does not increase the VAT tax base. There are similar explanations in letters from the Ministry of Finance of Russia and (brought to the tax inspectorates by letter of the Federal Tax Service of Russia dated April 3, 2013 No. ED-4-3/5875.) The legality of this approach is confirmed by arbitration practice (see, for example, the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 5 February 2008 No. 11144/07).

The penalty is related to payment for the order

And there are situations when the penalty is directly related to payment for goods supplied (work performed, services rendered). For example, a penalty for excess transport downtime, the amount of which is agreed upon by the parties in the transport expedition or transportation agreement. If the customer delays transport beyond the predetermined time, he pays the forwarder (carrier) a fine, the amount of which depends on the duration of the downtime. Such penalties are associated with payment for services rendered, so they must be included in the VAT tax base. This was stated in the letter of the Ministry of Finance of Russia dated April 1, 2014 No. 03-08-05/14440.

It should be noted that in some cases, the funds received from the buyer in the contract are called a penalty (fine, penalties, interest), but in essence they are an element of pricing - a hidden form of payment. When such amounts are received, they must also be included in the VAT tax base. This is stated in letters of the Ministry of Finance of Russia dated August 3, 2016 No. 03-03-06/1/45600 and dated March 4, 2013 No. 03-07-15/6333.

Situation: is it possible to deduct VAT on penalties (fines, penalties) paid to the supplier at his request for improper fulfillment of contractual obligations. The supplier issued an invoice for the amount of the penalty with allocated VAT

No you can not.

Deduct input VAT only on acquired property (work, services, property rights). There is no VAT deduction for penalties. This follows from Article 171 of the Tax Code of the Russian Federation.

In the situation under consideration, the penalty received by the supplier should be qualified as the amount associated with payment for goods (work, services), on which the organization must pay VAT (subclause 2, clause 1, article 162 of the Tax Code of the Russian Federation). The supplier draws up an invoice for the amount of the penalty in one copy (clause 18 of section II of Appendix 5 to the Decree of the Government of the Russian Federation of December 26, 2011 No. 1137). The supplier has no right to transfer the invoice to the buyer who has paid the penalty. Therefore, even if you have a VAT invoice, do not deduct VAT from the amount of the penalty.

Similar clarifications are contained in letters of the Ministry of Finance of Russia dated February 14, 2012 No. 03-07-11/41, Federal Tax Service of Russia dated March 18, 2016 No. SD-3-3/1141.

It should be noted that arbitration practice on this issue is heterogeneous. Some courts proceed from the fact that penalties paid to suppliers (performers) for violation of contractual obligations by buyers (customers) are not payment for the property (work, services) purchased by them. Therefore, it is impossible to deduct VAT claimed by the supplier (performer) from the penalty (see, for example, resolutions of the Federal Antimonopoly Service of the Western Siberian District dated July 25, 2011 No. A75-9034/2010 and the Northwestern District dated April 21, 2008 No. A13-5448/2007). However, there are examples of court decisions from which it follows: the buyer (customer) can deduct the amount of VAT paid on the penalty if the supplier (performer), in violation of the established rules, issued him an invoice with the allocated amount of tax. This conclusion, in particular, is contained in the resolution of the Federal Antimonopoly Service of the Moscow District dated October 16, 2012 No. A40-11357/12-140-54.

Situation: should the buyer (customer) include in the VAT tax base the amount of the penalty received from the supplier (performer) in the form of a fine or penalties

No, you shouldn't.

The provisions of the Tax Code of the Russian Federation do not apply to buyers (customers) receiving penalties from suppliers (performers) who improperly fulfill their contractual obligations. They apply only to those penalties that are associated with payment for goods (work, services) sold, that is, penalties (penalties, fines),

Supplier companies, when deciding whether to include in the VAT base amounts from fines for violation of contract terms received from buyers, will have to take into account not only legal norms, but also court decisions.

Companies often have to pay penalties, fines, and penalties for violating the terms of contracts. Are such sanctions subject to VAT?

Sanctions for transactions not subject to VAT

The Russian Ministry of Finance has clarified that the amounts of money received by the seller of goods (works, services) from the buyer for violation of contractual obligations are classified as amounts associated with payment *(1). Therefore, such amounts are included in the VAT base. In this case, the seller registers invoices issued in one copy in the sales book * (2).

The fee for issuing a loan and penalties for its early repayment are considered as funds associated with payment for services for providing a loan. Such services are exempt from VAT*(3). Therefore, the amount of the commission for issuing a loan and penalties for its early repayment are not included in the calculation of the VAT base. Let us note that this position of the department is well-established. Previously, the Ministry of Finance of Russia explained that the money received by the seller of securities from the buyer for the latter’s violation of the payment obligation should be considered as related specifically to the payment for securities, sales transactions of which are not subject to VAT *(4). That is, the money received by the buyer of securities from the seller for violating his sales obligations is also not included in the tax base.

Tax officials indicate in their letters that reimbursement by the tenant for the cost of ongoing repairs that have not been made is not considered the performance of work or the provision of services. Consequently, upon receipt of the amounts of the specified compensation, the lessor does not become subject to VAT *(5). At the same time, he does not have any grounds for issuing invoices indicating the amount of VAT * (6).

Sanctions for the buyer from the supplier

According to explanations from tax authorities, VAT is levied on amounts associated with payment for goods sold, work performed, services rendered, including penalties received by the supplier from the buyer for the latter’s violation of its obligations (payment) * (7). However, the provisions of the Tax Code *(8) do not apply when the buyer receives penalties for improper performance of the contract by the supplier. In particular, for late delivery of goods, for poorly performed work (services provided), for inappropriate assortment, etc. This group of sanctions also includes fines paid by the buyer to the supplier for late acceptance of goods received from him.
Analyzing this position of the tax department, we can come to the conclusion that penalties received by the buyer from the supplier are not subject to VAT.

The legitimacy of this conclusion is confirmed by the Russian Ministry of Finance and judicial practice.

Thus, the financial department indicates that the money received by the company from the bank as interest on the balance of budget funds in bank accounts, from employees as compensation for overpayments of wages, according to an audit report and from sellers of goods (works, services) for violation of the state regulations delivery time contracts are not included in the VAT base*(9). The arbitrators indicate that VAT can only be imposed on that amount of money that increases the cost of goods (work, services) sold *(10). The list of amounts that, in addition to revenue*(11), are included in the base subject to VAT is exhaustive. It does not contain an indication of the amount of sanctions for non-fulfillment or improper fulfillment of obligations. And since the disputed amount was received by the company for improper fulfillment of obligations under a civil contract and is not related to payment, it is not legally included in the VAT base.

Sanctions to the supplier from the buyer

According to the Ministry of Finance of Russia * (12), the amounts of money received by the supplier from buyers of goods (works, services) in the form of penalties for late payment are related to payment. Such penalties are included in the VAT base. The amount of tax upon receipt of these funds is determined by calculation based on a rate of 18 percent to the base, taken as 100 and increased by the rate (18/118) * (13).

Moscow tax authorities also explain *(14) that the amounts of penalties received by the supplier of goods (works, services) and associated with settlements for their payment are included in the VAT base on the basis of the Tax Code *(15). However, these rules are not applicable when such amounts are received by the buyer.

The moment the tax base is determined is the earliest of the following dates*(16):
— day of shipment (transfer) of goods (works, services), property rights;
- the day of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

However, the courts do not currently support this official position of the tax authorities*(17). The reason for this is the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation * (18). In this case, the court of first instance proceeded from the following. Since transactions under the contract are subject to VAT at a rate of 18 percent, and the penalty received by the supplier in connection with the counterparty’s delay in fulfilling its obligations is associated with these transactions, the tax base for them increases by the amount of the penalty * (19). The appellate and cassation courts supported this conclusion. However, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized it as erroneous, considering that the amount of the penalty as liability for late fulfillment of obligations received by the supplier from the counterparty under the contract is not related to payment for the goods in the sense of Article 162 of the Tax Code. And such amounts are not subject to VAT.

The Ministry of Finance of Russia and the Federal Tax Service of Russia (letter of the Ministry of Finance of Russia dated 04.03.2013 No. 03-07-15/6333 (letter of the Federal Tax Service of Russia dated 03.04.2013 No. ED-4-3/5875@ was communicated to the tax inspectorates)) have finally accepted the point of view courts regarding the application of VAT to the amounts of penalties received by the seller for delay in fulfilling obligations under supply contracts: these amounts do not need to be included in the tax base for value added tax.

Until recently, the issue of imposing value added tax on penalties received by the seller of goods (works, services) for violating the terms of contracts remained controversial. Officials in their letters (letters of the Ministry of Finance of Russia dated August 17, 2012 No. 03-07-11/311, dated July 23, 2012 No. 03-07-08/204, dated May 18, 2012 No. 03-07-11/146, dated February 14. 2012 No. 03-07-11/41, dated 08/09/2011 No. 03-07-11/214, dated 05/20/2010 No. 03-07-11/189, dated 09/11/2009 No. 03-07-11/222, dated 06.03.2009 No. 03-07-11/54, Federal Tax Service of Russia dated 09.08.2011 No. AS-4-3/12914@) indicated that sellers should include the amounts of penalties in the VAT tax base, since the latter are associated with calculations for payment of sold goods (works, services). They justified their position by the fact that the received amounts of penalties (fines, penalties) fall under subclause 2 of clause 1 of Article 162 of the Tax Code. Let us recall that, according to this norm, the VAT tax base is increased by amounts “... received for goods sold (work, services) in the form of financial assistance, to replenish special-purpose funds, to increase income, or otherwise related to payment for goods sold ( works, services)".

However, the courts (Regulation of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/05/2008 No. 11144/07, FAS MO dated 04/25/2012 No. A40-71490/11-107-305, FAS North Caucasus Region dated 07/07/2011 No. A32-40880/2009) were of the opposite opinion . Their position is based on the fact that penalties are a measure of civil liability applied for violation of contractual obligations and are not related to payment for goods. The provision of the Code (subclause 2 of clause 1 of Article 162 of the Tax Code of the Russian Federation), to which the Ministry of Finance of Russia and the Federal Tax Service of Russia referred in their explanations, states that VAT is subject to only amounts that increase the cost of goods (work, services). And the penalty is paid in excess of the price of goods (work, services). Thus, it is not subject to VAT.

But, despite the positive judicial practice, the regulatory authorities did not change their position on this issue. Therefore, companies that included in contracts provisions on liability for non-fulfillment or improper fulfillment of obligations in the form of a penalty, after collecting such sanctions from the company that violated the terms of the contract, a logical question arose: is it necessary to tax the resulting amount of the penalty with VAT?

And recently, officials took into account judicial practice and agreed that the amounts of penalties are not related to payment for goods in the sense of the mentioned provision of Article 162 of the Code, issuing the appropriate clarifications, which we mentioned above.

Under the agreement dated January 13, 2013, Aktiv LLC (supplier) undertakes, within ten working days from the receipt of 100% prepayment, to supply Passive OJSC (buyer) with tables in the amount of 118,000 rubles. (including VAT - 18,000 rubles) The buyer, in turn, undertakes to pay 100% of the cost of the goods within three working days from the date the supplier issues an invoice. The supplier must issue an invoice to the buyer within five days of signing the contract. For each day of delay in delivery of goods, he is obliged to pay the buyer a penalty in the amount of 0.7% of the cost of the goods under the contract.

Aktiv LLC issued an invoice on January 15, 2013, and Passive OJSC paid it on January 16, 2013. The goods were delivered on 02/08/2013 (instead of 01/30/2013). Thus, Aktiv LLC fulfilled its obligation under the contract improperly, delaying the delivery of tables by nine days.

The amount of the penalty that the supplier is obliged to pay to the buyer will be:

(RUB 118,000 - RUB 18,000) × 0.7% × 9 days. = 6300 rub.

The penalty was paid on February 15. It is not subject to VAT, since it is not directly related to payment for goods.

Note that if the buyer receives penalties, then he does not take such amounts into account when calculating VAT. This is due to the fact that the amounts of penalties received by him are not related to settlements for payment for goods (work, services) sold (clause 2 of Article 153, subclause 2 of clause 1 of Article 162 of the Tax Code of the Russian Federation). Representatives of the financial and tax departments adhere to the same position (letters of the Ministry of Finance of Russia dated October 7, 2008 No. 03-03-06/4/67, Federal Tax Service of Russia dated August 9, 2011 No. AS-4-3/12914@, Federal Tax Service of Russia for the city of Moscow dated 02/07/2008 No. 19-11/11309).

If the amounts are not actually a penalty

The Civil Code (Article 330 of the Civil Code of the Russian Federation) recognizes as a penalty the amount of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment. The agreement on liquidated damages must be concluded in writing, otherwise it is considered invalid.

According to the opinion of the Ministry of Finance of Russia, expressed in the commentary letter, if the penalty received by the seller is not essentially a penalty that ensures the fulfillment of obligations under the contract, but in fact relates to an element of pricing, then it is subject to VAT on the basis of the above-mentioned norm of Article 162 of the Code.

Under the agreement dated March 31, 2013, Aktiv LLC (supplier) undertakes to supply OJSC Passiv (buyer) with stationery in the amount of 500,000 rubles within three working days from the date of signing the agreement. (including VAT - 76,271 rubles. 19 kopecks). The buyer, in turn, undertakes to pay 100% of the cost of the goods within five working days from the date of receipt. If the buyer is late in paying for the goods, the original price is increased by 0.4% of the value of the goods under the contract.

Aktiv LLC delivered the goods on 04/01/2013. The buyer paid for the goods 10 days later than the deadline established by the contract.

In this case, the amount of the penalty will be:

(RUB 500,000 - RUB 76,271.19) × 0.4% = RUB 1,694.92

VAT on the amount of the penalty received is calculated at the calculated rate of 18/118, since the sale of stationery is taxed at a rate of 18%.

The amount of tax due for payment to the budget will be:

1694.92 rub. × 18/118 = 258.55 rub.

In the accounting of Aktiv LLC, the accountant must make the following entries:

DEBIT 51 CREDIT 76

1694.92 rub. — the amount of the penalty has been credited to the current account;

DEBIT 76 CREDIT 91.1

1694.92 rub. — reflects the amount of the penalty due to be received;

DEBIT 91-2 CREDIT 68

RUB 258.55 — VAT payable to the budget has been accrued.

In order to avoid claims from tax authorities, it is necessary to correctly formulate the clause on payment of penalties in the contract. For example, if the text of the contract states that if payment is late, the buyer must pay a fine to the seller, then there is no need to subject it to VAT. If the contract contains, say, a condition that in case of delay the original price increases by 20 percent, then you will have to pay VAT, since the penalty changes the price.

Taking into account the new letter from the Russian Ministry of Finance, companies may be tempted to replace, say, the terms of an agreement on the payment of interest on a commercial loan with a condition on a contractual penalty. However, it should be remembered that this entails tax risks, since, unlike a penalty, the supplier must include the received amount of interest in the VAT tax base. Otherwise, based on the results of the tax audit, the seller will have to pay to the budget not only VAT, but also fines and penalties.

Opinion

Vladimir Voinov, leading lawyer at the Pepeliaev Group law firm

VAT: controversial issues of qualification of penalties

Recently, on the official website of the Federal Tax Service of Russia, in the section “Explanations of the Federal Tax Service, mandatory for application by tax authorities,” a letter from the Ministry of Finance of Russia dated March 4, 2013 No. 03-07-15/6333 was posted. In this letter, officials agree with the position of the Supreme Arbitration Court of the Russian Federation (post. of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/05/2008 No. 11144/07) regarding the non-application of Article 162 of the Tax Code to the amount of the penalty received by the taxpayer-seller from the counterparty for late fulfillment of obligations. At the same time, the letter from the Russian Ministry of Finance contains a clause that if the amounts received by the seller from buyers are not essentially a penalty, but in fact relate to an element of pricing, then such amounts increase the VAT base on the basis of subparagraph 2 of paragraph 1 of this article. This approach raises serious doubts about its validity for the following reasons.

First of all, this letter does not indicate the objective criteria that should be used to determine the nature of the payment received. This means that the question of whether the received payment is “essentially” a penalty or whether it “actually relates to an element of pricing” will be decided at the discretion of the tax inspector, that is, arbitrarily. At the same time, it is not clear what should be followed, for example, in order to determine whether the fine established by agreement of the parties to the purchase and sale agreement for late payment of the cost of goods within the agreed period does not actually cover the actual increase in the cost of this unpaid goods after the agreed period . Likewise, there are no guarantees against arbitrary reclassification of penalties established as a percentage for each day of delay in fulfilling a monetary obligation into the amount of interest on a commercial loan. Thus, there is a risk that any penalties that are not subject to VAT due to the legal position of the Supreme Arbitration Court of the Russian Federation will receive a different qualification from the tax authorities in order to include the corresponding amounts in the VAT tax base.

Qualifying a penalty as a “pricing element” may also mean that the parties to the transaction indicated in the contract a reduced price for the goods (work, service) being sold, and the rest of the price is paid under the guise of a penalty. However, the procedure for determining prices for tax purposes is regulated by special rules (Article 40 of the Tax Code of the Russian Federation in tax periods before 2012 and Section V.I of the Tax Code of the Russian Federation, starting from 2012). At the same time, these norms allow for the implementation of price control only for specially specified situations, stipulating that in other cases the prices applied by the parties to the transaction correspond to market prices. Accordingly, tax authorities ignoring these special rules will also cast doubt on the validity of reclassifying the penalty as a “pricing element.”

The root of the conflict between tax authorities and taxpayers lies in the well-known method of optimizing VAT. Payments that do not correspond to this concept are often called penalties, penalties, or fines. The parties to the contract officially agree to sell at a reduced price, and the buyer transfers the difference to the seller in the form of penalties for violating contractual obligations. As a result, the seller pays VAT only on “official” revenue, without including penalties.

For example, the contract for the provision of transport services stipulates that the buyer is given a certain time to unload the transport. Downtime of transport during unloading in excess of the limit is paid separately - at a higher penalty rate, which in this case cannot be considered a penalty.

This is a higher price for the service provided, determined by the terms of the contract, which is fully subject to VAT.

Let's look at the positions of inspection bodies and courts.

Penalties are subject to VAT

The main argument of the tax authorities: when calculating the VAT base, revenue from the sale of goods must be determined based on all income associated with settlements for their payment.LetterDepartment of Tax and Customs Tariff Policy03-07-11/311

Ministry of Finance of the Russian Federation dated August 17, 2012. No. Similar findings regarding sanctions for late payment

are contained in Letters of the Ministry of Finance of Russia dated May 18, 2012 No. 03-07-11/146, dated August 9, 2011 No. 03-07-11/214

Penalties are not subject to VAT

Letter from the Ministry of Finance of the Russian Federation dated March 4, 2013 N 03-07-15/6333 Application of VAT in relation to, amounts received sellers from buyers behind violation of contract terms

involving the supply of goods (work, services) subject to tax fulfillment of obligations received by the company from the counterparty under the agreement, not related to payment for goods in the sense of the mentioned provision of Article 162 of the Code, therefore taxation for added value are not subject to.In accordance with paragraph 1 of Article 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is the amount of money determined by law or agreement that the debtor is obliged to pay to the creditor in case of non-fulfillment or improper fulfillment of an obligation, in particular in case of delay in execution. The Ministry of Finance indicates that tax authorities should be guided, inter alia, by the conclusions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 5, 2008 N 11144/07. Note! If the amounts received by sellers from buyers, stipulated by the terms of contracts in the form of a penalty (fine, penalty), are not essentially a penalty(fine, penalty) ensuring the fulfillment of obligations, and actually relate to the pricing element, providing for payment for goods (works, services), then such amounts are included in the tax base for value added tax on the basis of Article 162 of the Tax Code of the Russian Federation.

Similar conclusions regarding the nature of the penalty are confirmed by judicial practice - see, for example, Resolutions of the Federal Arbitration Court of the Moscow District: dated 04/25/2012 N A40-71490/11-107-305, dated 12/01/2011 N A40-33299/11-140 -146, dated 09/07/2011 N A40-44061/10-107-849, dated 09/07/2009 N KG-A40/8898-09, dated 07/28/2009 N KG-A40/6668-09 in case N A40-84761/08-7-816, dated 03/11/2009 N KA-A40/1255-09.

Thus, the answer to the question lies in the essence of penalties: there will be no object of value added tax only if the amounts received are a measure of liability for failure to fulfill obligations.

Please pay attention attention to the wording on penalties in contracts– they should not be ambiguous. The agreement must contain strict conditions regarding the form and timing of payments.

For example, liability clauses can be formulated in contracts as follows:

— in supply/purchase agreements:

…. For the Buyer's delay in transferring funds established by this agreement, the Supplier has the right to require the Buyer to pay a penalty in the amount of 1% of the unpaid amount for each day of delay, but not more than 10% of the payable amount.

... For violation by the Supplier of the delivery time(s) for goods provided for in this agreement, the Buyer has the right to demand from the Supplier payment of a penalty in the amount of 1% of the total cost of goods not delivered on time, for each day of delay, but not more than 10% of the cost of goods not delivered.

— in contracts for the provision of services:

... For violation of the term for the provision of services under this agreement, the Customer has the right to demand from the Contractor payment of a penalty in the amount of 0.1% of the cost of services under this agreement for each day of delay.

... For violation of the deadline for payment for services under this agreement, the Contractor has the right to demand from the Customer payment of a penalty in the amount of 0.1% of the unpaid amount for each day of delay.