Arbitral procedure

The Regulation of FAS Moscow District Case of 27.12.2012, № A40-16654/12-20-77 citing AR 19/02, "Accounting for investments," noted that as a result of providing the society with regard to loans and transactions on the sale of shares in the share capital does not arise for the implementation of the operation, there are no transactions that are exempt from VAT, in accordance with paragraph 4 of Art. 170 of the Tax Code the cost of originating loans do not count for 5% of the limit above which the taxpayer is obliged to separate accounting and the adoption of VAT deduction in relevant part.

The Regulation of FAS Moscow District Case of 30.11.2012, № A40-135314/11-107-565, referring to the decision of the RF from 06.07.2010, № 2604/10 noted that the construction of the station. 171 of the Tax Code must be concluded that the established second paragraph of paragraph 7 of the restrictions apply only deduction of VAT paid for the costs of travel and entertainment expenses, which are listed in the first paragraph of this paragraph, and therefore the taxpayer is legally filed to deduct the full amount of VAT for advertising services.

The Decree of the Presidium of the Russian Federation of 30.10.2012, № 6909/12, with reference to Articles 258 and 259 of the Tax Code, noted that the lack of state registration of rights to fixed assets in connection with the fact that the taxpayer did not exercise the right to timely execution of it in the property can not be considered as a basis for depriving the taxpayer of the right to recognition of expenses related to the creation and (or) the acquisition of the object, through depreciation. If an item of property is reflected as such in the definition of the accounting cost, commissioned and used in the production activity, the deprivation of the rights of the taxpayer accrued depreciation and account for as an expense in the calculation of corporate income tax contradicts the provisions of paragraph 4 of Article . 259 of the Tax Code.

The Decree of the Presidium of 09.10.2012, № 6759/12 noted that the fact that the documents confirming the validity of the zero rate of VAT on the sale of goods for export, have been collected after the company switched to the simplified tax system, not deprives him of the right to declare the tax to be refunded. As follows from the case, the tax inspectors in a given situation refused to reimburse VAT. They explained their decision by the fact that the full set of documents provided for in Article 165 of the Tax Code, the assembled company after changing over to USN. Therefore, the VAT base was set at a time when the company has not payers of this tax. Why, and the reasons for the application of the zero rate of VAT in this case. In turn, the Court recalled that subparagraph 1 of paragraph 1 of Article 164 of the Code for the sale of goods exported under the customs procedure of export, subject to the submission of documents to the tax authorities under Article 165 of the Code, taxation is at a zero rate. On the basis of paragraphs 1 and 2 of paragraph 2 of Article 165, Paragraph 2, Section 9 of Article 167 of the Code, if the 181 th day after the date of placement of goods under the customs regime of export package of documents is not collected, the taxpayer must include the value of sold for export goods in the base of the VAT. The time of its formation is determined from the date of shipment. Accordingly, in this case, calculate the required amount of the tax at the rates specified in paragraphs 2 and 3 of Article 164 of the Code. At the same time, the head 21 of the Code does not limit the right of the taxpayer to provide for 180-day period, the full set of documents to confirm the export. Moreover, in this case, he is guaranteed a VAT refund procedure established by Article 176 of the Code. And because the transition taxpayer for USN is not provided in the Code as a basis for the termination of his right to a refund of VAT on export transactions made during the period of application of the general system of taxation, inspection solution was found to be unlawful.

The Regulation of FAS Northwestern District on 04.12.2012, № A66-6809/2011 noted that the one-time revaluation of property, the results of which are only needed for a loan, can not affect the tax base of the property.
The point is this. Organization for the purpose of the loan raised by companies, which assessed it owned the building. Tax officials during the inspection, he saw that the residual value of the property is reflected in accounting without this reassessment, blamed society in understating the base for the property tax.
However, the Court came to the conclusion that it is at the tax office had no reason to. The judges pointed out that the commercial organization to determine the frequency of revaluation, the list of groups of similar items, which will be re-evaluated, and the method for determining the current (replacement) cost. The decision is fixed in the financial accounting policies.
In the present case, the assessment of the property was made not for the purpose of accounting and its results have not been approved by the head of the relevant society.
In addition, in accordance with its accounting policy the taxpayer does not exercise revaluation of fixed assets by direct allocation by documented market prices. Furthermore, according to paragraph 15 PBU 6/10 commercial organization if a decision to re-evaluate the assets later to compare their cost with the market on a regular basis. That is, a one-time revaluation of property, the results of which are only needed for a loan, does not affect the tax base of the property.

Regulation of FAS Moscow District on 17.10.2012, № A40-29743/12-140-143, it is determined that the transfer of Christmas gifts to the children of employees subject to VAT.
As follows from the case, the company acquired New Year gifts to send their workers. The fact of awarding employees of these gifts was confirmed acts to write off inventory and records, in which employees sign for their receipt. The judges noted that the purchase and delivery of Christmas gifts to the children of employees carried out as congratulations. That is, in this case, that would not be spelled out in the collective agreement, it does not include the promotion of labor. So, there is a transfer of ownership of gifts for free. Therefore, in accordance with sub-paragraph 1 of paragraph 1 of Article 146 of the Tax Code of the implementation of such an operation is recognized and subject to VAT.

In the definition of the Russian Federation of 08.11.2012, № VAS-12510/12 noted that the organization is not entitled to demand the return of overpayment of income tax from the moment of which more than three years, and thus has the right to turn on the specified overpayment in non-operating expenses.
The point is this. The organization had an overpayment of income tax, since the emergence of a more than three years. Because in such a situation to return the overpayment from the budget has not been possible, the Organization has included these amounts in non-operating expenses in accordance with paragraph 2 of Article 265 of the Tax Code, with nothing agreed tax inspectors assessed additional tax on that amount for profit.
SAC reminded that, in accordance with paragraph 2 of Article 265 of the Code to tax losses being treated as non-operating expenses can be attributed the amount of bad debts, and the amount of other debts irrecoverable. In this case, pursuant to paragraph 2 of Article 266 of the Code of hopelessness (irrecoverable) acknowledges the debt to the taxpayer, with expired limitation period prescribed, and those debts for which, in accordance with the civil law obligation has terminated due to the inability of its performance, based on the act public authority or liquidation.
According to referees, to Chapter 25 of the Code of overpaid tax in the budget may also be recognized as bad debt. This is due to the fact that this amount is subject to all the constitutional guarantees of property rights due to the fact that the payment of the tax in this case is made in the absence of legal grounds. Thus, the additional charge of income tax in the present case was quashed.

Ruling from 29.11.2012, № 13840 BAC Letter, the Ministry of Finance on 04.04.2012 № 03-03-10/34 (taxation of dividends for prior periods) ruled that the Tax Code. This means that if the organization is no net profit for 2010, it does not mean that the dividends paid out of retained earnings of previous years, subject to an income tax rate of 20 percent.
On 01.01.2011, paragraph 3 of Article 284 of the Tax Law of the act of December 27, 2009 № 368-FZ. Under the new rules for the application of the zero rate of income tax in respect of dividends paid must be followed from three to two conditions — the size and term of the share ownership. The demand on the value of the contribution (not less than 500 million rubles.) Were excluded. In this case, these rules apply to the relations between the taxation of dividends for the organization's performance in 2010 and beyond.
The Finance Ministry of the Russian Federation believed that the organization, which in the absence of the net profit for 2010 be paid to shareholders in 2011, dividends from retained earnings of previous years, there is no basis for applying the tax rate is 0 percent of such proceeds. Moreover, the Finance Ministry recommended to levy such dividends at the rate of 20 percent.
The representatives of SAC indicated that changes made to the Code of the Law № 358, aimed at improving the situation of taxpayers. Because now for the application of the zero rate of income tax should be observed from three to two conditions. In addition, the nature of its economic net income and retained earnings are identical. This eliminates the different tax treatment depending on the period for which the company makes a decision about the direction of the profits to pay dividends.
Thus, the SAC concluded that the interpretation of the Ministry of Finance admitted the contested letter, leading to the formation of new rules of taxation with respect to dividends and changes the procedure for calculating the tax on the distribution of profits earned before 2010, contrary to the provisions of paragraph 3 of Article 284 of the Tax Code and paragraph 2 of Article 5 of the Law № Z68-FL.

The Regulation of FAS Northwestern District on 15.10.2012, № A56-165/2012 noted that the amount shall be deductible VAT charged suppliers or actually paid by the customs authorities on importation of goods into the territory of the Russian Federation in order to use them in transactions subject to VAT. The point is this. Organization of imported goods to Russia. However, part of the party was not implemented, as the product has been damaged. Despite this importer said deducted the full amount of VAT paid at customs when importing goods into Russia, prompting claims from the tax authorities. Inspectorate claimed that writing off damaged goods, the organization has not implemented, therefore, the right to the deduction it arose. Indeed, in accordance with paragraph 2 of Article 171 of the Tax Code of the VAT deduction only applies in case the imported goods used in activity subject to this tax. The Court indicated that the amount shall be deductible VAT charged suppliers or actually paid by the customs authorities on importation of goods into the territory of the Russian Federation in order to use them in transactions subject to VAT. Besides, the said goods should be taken into account and confirmed by relevant documents and invoices (paragraph 2 of Art. 171 of the Tax Code). Thus, for the deduction of imported goods into the territory of the Russian Federation have a value purchase of goods, taking them to the account, the actual payment, as well as their purpose. Organization of all these conditions. And the fact of the sale of goods as such justify a tax deduction is not. Thus, the refusal to use inspection deduction in respect of damaged goods was considered illegal.

The Presidium of the proceedings number A40-69427/11-140-302 Moscow Arbitration Court has come to the conclusion that if the results of a desk audit by tax authorities determine that the VAT in the application procedure was improperly reimbursed, in addition to the amount of tax that is transferred the budget will have to be listed and interest for the use of budget funds. And those are awarded regardless of whether the taxpayer had overpaid VAT or not. In the present case the courts of three instances sided with the tax office. They argued that the charging of interest under paragraph 17 of Article 176.1 of the Tax Code, is due to the fact of using taxpayer budget. Links society lack the budget in case of financial loss due to the presence of the overpayment, according to the arbitrators have no legal significance for the proper resolution of this dispute. Since, the accrual of interest due to the possibility of temporary use of illegally obtained budgets. YOU judge in Determination 28.08.2012, № VAS-9334/12 noted that on the issue in the arbitration practice is not uniform. Thus, FAS North Caucasus region in its decision of 27.12.2011 in case number A32-1953/2011 made different conclusions. The judges found that the use of declaratory order tax compensation is designed to stimulate the honest taxpayer legislator and responsible approach to the calculation of the amount of VAT to be recovered in a declarative manner. Therefore, the presence of his overpaid tax in the budget for the period of use of budgetary funds has legal significance. After all, there is one is not causing financial loss on the side of the budget, and therefore the interest on wrongfully reimbursed VAT in this case can not be assessed. However, despite the above definition of the Presidium upheld all verdicts handed down in favor of the tax authority.

In the definition of the Supreme Arbitration Court on October 19, 2012 № VAS-10379/12 noted that even if the tax office at the same time to present a revised declaration for different tax years, it does not mean that the tax authorities are required to check their calendar in order. The result may be a situation that the Organization may be penalized and no debt to the budget As follows from the case, the company has submitted to the tax office updated the VAT return for the five tax periods at a time. In total claimed deductions exceed the tax payable calculated. However, the tax authorities started making desk audits in reverse chronological order. In the last tax declaration on chronology was declared payable. Inspectors did not take into account the presence of overpaid VAT in earlier declarations and made a decision to bring the organization to the tax liability. The court, in turn, referred to the position of the EAC, as set out in its decision of 19.01.2010, № 11822/09. B, which states that the amount of VAT claimed organization a tax deduction can be offset only by the inspection results of the desk audit specified declarations by residues. Date for the revision of three months from the date of submission of returns. Moreover, from the tax legislation does not follow the duty of the tax authority to simultaneously desk audits specified declarations for different tax years, even if they are present at one and the same time. On account of the arrears may only set off the overpayment established at the time of detection of the debt. The court noted that the grounds for exemption from the tax liability of the taxpayer for verification of changes made to them in a tax return, established by Article 81 of the Tax Code. However, the rules of the rule does not provide for the possibility of liberation from the use of tax liability in case of submission of a revised declaration after identifying the inspection tax offense.

The Regulation of FAS Moscow District (Case of 22.10.2012, № A41-31823/10) noted that the responsibility for the offense referred to in Art. 126 of the Tax Code, may be used only in the event that the requested documents were available from the taxpayer, and it was a real opportunity to present them in time. Based on sub. 1, No. 1, Art. 111 of the Tax Code circumstances precluding persons guilty of committing a tax offense an act that contains elements of a tax offense as a result of natural disaster or other extraordinary and compelling circumstances (these circumstances are established presence known facts, publications in the mass media and other means, do not require special means of proof). The document confirming the disaster (eg, fire) may be a reference to the fire department of the state fire supervision, as well as the decision not to open a criminal investigation into the fire.

The Regulation of FAS Moscow District on 25.10.2012, the case number A40-13623/12-75-66 noted that the organization is not engaged in transportation of passengers who are not obliged to write off the cost of fuel used roadmap, approved by the Ministry of Transport of 18 September 2008 № 152. In the present case, the judge found that the cost of fuel in the Company records expenses for income tax within the limits (standards) of fuel (summer and winter) for cars, including leased approved by order of the head. Write-offs took place on the basis of reports in which the calculation is carried out according to the norms approved by the order of society. Rate of fuel consumption - is the number of liters per 100 kilometers. Based on the route sheet, which reflects the speedometer reading at the beginning and end of the month, is calculated mileage for the month. Mileage multiplied by the rate and divided by 100 km. It turns out the estimated number of gallons of fuel used per month. Calculated amount is compared to the actual amount of fuel refilled. And if there was less seasoning, all written off liters without a trace. If more - the estimated number of gallons withdrawn by the rules, and all that is over, it remains in the rolling balance to the next month. Research and assess the evidence, the Court concluded that the decision to tax authorities on additional income tax did not comply with tax laws, violates the rights and interests of the applicant in the field of entrepreneurship.

The Regulation of FAS Northwestern District from 01.11.2012 № A42-6467/2011 noted that the costs incurred by the appeal decision inspections can not be qualified as damages recoverable under article 15, 16, 1069 of the Civil Code and Articles 21 and 103 of the Tax Code.  The central issue is this. Company out of court appealed the tax authority, stemming from the on-site inspection. To this end, the lawyer was involved. Amount of remuneration paid to him company considered it a loss that can be attributed to the increase in expenses for income tax purposes. However, the judge in the case sided with the tax authority. They recalled that according to paragraph 1 of Article 103 of the Tax Code during the tax audit is not permitted causing undue harm to the audited entities, their representatives or to property in their possession, use or disposal. The tax authorities are responsible for the damages caused by the payers result of unlawful actions. Such damages are recoverable in full, including, including lost profits (item 2. 103 TC). At the same time, if the losses are caused by lawful actions, then they will not be refundable, except as provided by federal law. Meanwhile, as it follows from the case, the officers conducted the inspection tax control measures within the powers set out in Articles 89, 100 and 101 of the Code. These rules govern the procedure of the field audit, execution of its results, the decision. So the cost of attorney's fees are connected with the lawful actions of the tax authorities, which means that they can not be regarded as a loss to the tax authority is obliged to compensate.

The Regulation of FAS Ural District 25 .10.2012, № F09-9739/12 noted that the fact that the employee has worked in the organization before going on leave to care for a child for a short time, is not a ground for refusing the FSS in reimbursement payment of her benefits for pregnancy and childbirth. As follows from the case, on the basis of a desk audit by representatives of FSS recorded facts undue submission for reimbursement from the fund expenditures made in violation of the law. Representatives of the Social Insurance Fund decided that the Organization entered into with the employee fictitious employment contracts with the sole purpose to get money from the FSS. In turn, the Court no illegal "scheme" in this case is not found. The court noted that the fact that real labor relations between the company and the persons who held the post procurement manager and chief accountant, on the basis of labor contracts confirmed the case. The Court found that this wage working women made in accordance with labor contracts and staffing, and the facts insured accidents FSS specialists are not in dispute. In this case, bad faith society, the direction of his actions to receive unjustified tax benefit the Foundation for Social Security is not proven. Meanwhile, on the basis of subparagraph 3 of paragraph 1 of Article 11 of the Act of July 16, 1999 № 165-FZ, insurers have the right not to offset the cost of mandatory social insurance only if they are made in violation of any laws. Otherwise, failure to reimburse aid is illegal.

The Regulation of FAS Moscow District on 05.10.2012, № A40-132828/10-90-761 noted that if the account of the organization received funds, that's no reason to include them in the base of income tax. As follows from the case, on the basis of re-site inspection company tax charged in understating the tax base for unaccounted income and he assessed additional income tax, penalties and the amount of fines. Inspectors referred to the provisions of paragraph 8 of Article 250 of the Tax Code. Under this regulation shall be income Non-operating income in the form of donated property received (works, services), except as provided in Article 251 of the Code. Since the taxpayer has not submitted at the request of the inspection documents justifying the legitimacy of the non-inclusion of the amounts in the tax base, tax authorities regarded them as free of income received. In turn, the Court rejected the argument of the tax, noting that the prosecution has the character of their assumptions. The Court pointed out that, in accordance with paragraph 2 of Article 248 of the Code in order to calculate income tax assets (works, services) or property rights are deemed to be received free of charge, if they are receiving is not associated with the occurrence of the recipient's obligation to transfer the property (property rights) to the transferor ( perform for the transferor work have transferor services). The mere existence of a payment document by which the taxpayer to transfer funds in the absence of other evidence, no evidence of income. After all, money can be transferred on different grounds. In the case there are no documents showing the grounds on which the payment is made. Thus, the tax authority has not proved and the Court found that to the account of the taxpayer funds are the proceeds from the sale of goods, services, or non-operating income, in particular, the acquisition of property without compensation. So, and additional taxes on income in the same situation is unfounded.

The Regulation of FAS Moscow District on 17.09.2012, № A41-25479/11 noted that in case of non-tax amounts due to the fault of the bank, subject to the transfer tax amounts by the earlier of its obligation to pay. According to the case file disputed payment was sent to the bank for 9 days before the revocation of his license. And in this case, the organization decided to get out of the budget for the 35 days before the end of the tax period, after which determined the amount of tax to be paid, and for the 4 months prior to the date of payment thereof. Inspectors felt that such actions are not typical of normal business activity. In turn, the judge recognized that, under paragraph 3 of Article 45 of the Tax Code of the availability of sufficient cash balance in the account of the taxpayer on the date of the payment order to the bank for the transfer tax is the basis for recognition of duties performed. Meanwhile, as indicated by the arbitrators, the rule applies to the circumstances characterizing the integrity of the taxpayer for the transfer tax. Including whether the presence of the very obligation to pay tax. And that is what the company and was not in at the time the bank tax "payment obligation." So that tax authorities had reason to doubt the good faith of the taxpayer. That is, early transfer of the tax can be quite a sufficient basis for the recognition of the tax obligations are not fulfilled.

The Regulation of FAS Moscow District on September 11, 2012 № A40-119999/11-99-508 concluded that the organization, which claims a deduction of the VAT can not be punished for the fact that the invoice is not complete boxes "Country of origin" and "Number of the customs declaration." As follows from the case, on the basis of tax collectors office audit of the VAT return to society assessed additional tax and the amount of fines. Grounds for refusal of society to refund VAT served, in particular the findings of the inspection of the unlawful decision to deduct the amount of tax on the basis of an invoice drawn up in violation of paragraphs 13, 14, paragraph 5 of Article 169 of the Tax Code (not filled in the column "Country of origin", " number of the customs declaration "). In turn, the Court found that the submitted documents to the requirements of Articles 169, 171, 172 of the Tax Code, and came to the conclusion on the legality of the company's statement of tax deductions. Tax arguments that were the reason for denial of the application of the tax credit, including the improper execution of the invoice by the Court declared invalid. Since the Company is not a person, putting the invoice, and therefore can not be responsible for its lack of information about the country of origin and number of the customs declaration.

Principal shall not apply the "vmenenku" if he would send goods to the retail trade in the commission. The conclusion reached by the Presidium of the recently released its decision of July 17, 2012 № 1098/12. It is noteworthy that the courts of appeal and cassation courts sided with the taxpayer. They decided that the transfer of entrepreneurs using "imputed" special regime, goods for implementation of the commission does not create objects of taxation "general" taxes. Indeed, in the final analysis, a merchant receives revenue from the sale of goods to retail customers through the store. Simply he does it with the mediation commission. The Presidium of such an approach is not agreed, pointing out that according to paragraph 12 of Article 346.27 of the Tax Code by retailers understood entrepreneurial activity related to trade in goods on the basis of the retail sale. At the same time, in accordance with Article 990 of the Civil Code on a commission basis, a party (the commission) shall at the request of the other party (the principal) for a fee to make one or more transactions in his own name, but by the principal. Such transactions committed by the commission, are operations for retail sale of goods. In turn, paragraph 1 of Article 492 CC is determined that the contract of sale retail seller engaged in business of selling goods at retail, shall transfer to the buyer the goods intended for personal, family, household or other uses not related to business. Presidium has said that the commission consignor transmission products, for their further implementation in retailing itself does not enter into a legal relationship with the buyers, that is, sales contracts with them, he does not enter. So, in this case the principal shall not be eligible to apply special tax treatment in the form of imputed income from such business. As a result, the Presidium has decided to refer the case for a new trial.

The Regulation of FAS Moscow District on 12.09.2012, № A40-12138/12-99-60 concluded that in some cases the deduction of VAT on advance payments could exceed the amount of tax assessed in implementation. And yet, this fact is no violation of tax laws are not violated. According to the case file: Society with the prepayment of VAT payment on the estimated rate of 18/118. However, the tax authorities refused to reimburse this amount of tax on the grounds that the relevant invoices do not meet the requirements of Article 169 of the Tax Code. Say, if you receive payment, partial payment for the future delivery of goods incorrectly applied the tax rate of 18 percent instead of 10 percent. So the "subtract" the 18 percent - is unlawful. For its part, the Court found that the payment of the VAT has been calculated in an oversized tax rate instead of 18 percent to be applied rate of 10 percent. After the shipment of goods to the counterparty of the Company in accordance with paragraph 8 of Article 171, paragraph 6 of Article 172 of the Tax Code has filed to deduct such amounts of taxes, and also estimated tax payable to the budget, the appropriate rate of 10 percent. That, in the opinion of the arbitrators is sufficient to apply the "advance" a deduction of VAT in full. The arguments of the tax authority of non-compliance invoices requirements of Article 169 of the Tax Court of the Russian Federation has not taken into account, explaining it by the fact that the provisions of paragraph 5 of Article 169 of the Code in this case, the application can not be, as extends to the invoice of the seller in sale of goods (works, services). Controversial as invoices made out by the taxpayer in obtaining payment, partial payment for the future delivery of goods. In this case, the tax has been calculated by the taxpayer in an oversized, that does not prevent the state and the residue at the same rate. The court noted that the recalculation of the amount of tax deduction based on the tax rate of 10 percent, the tax should have been counted and the amount calculated by the applicant to prior payment of tax payable to the budget. A simultaneous decrease in the size of the deduction and the tax assessed by the same amount excludes the assessed taxes. Thus, the refusal to refund the VAT tax and additional taxes were found to be unlawful.

Presidium in its Resolution of 11.092012, № 4357/12, issued on the case number A27-2997/2011 Arbitration Court of the Kemerovo region, decided that a one-day trip with daily employee is not subject to personal income tax. According to the case file, the tax office assessed additional income tax to society, citing the fact that the employer is not the statutory obligation to pay its employees at the direction of their day-to-day business trip, where every assignment is able to return to their place of permanent residence. In this regard, the provision of paragraph 3 of Article 217 of the Tax Code in respect of amounts paid do not apply, and they are subject to personal income tax. The trial court sided with the taxpayer. However, the courts of appeal and cassation acknowledged the correctness of tax. In turn, the Presidium supported the decision of the court is the first instance. YOU agreed that the disputed payments, bearing compensatory made in the prescribed amount, can not be considered income (economic benefits) of the taxpayer - the employee. In this regard, they are not subject to personal income tax. Since the direction of employees on official business at the initiative of the employer and in his interest, and, therefore, per diem payment is in the interest of the employer, not the employee.

The Regulation of FAS Northwestern District on August 30, 2012 № A52-4152/2011 determined that the tax law is established that for the provision of the right to deduct VAT on advance payments, you must have an invoice for pre-payment, the documents confirming its actual transfer and the contract, which includes a provision making the advance. In this case, the right to use the advance VAT deduction does not depend on the delivery schedule As follows from the case, the fiscal authorities had no claims to registration of invoices, offered for the advance. The fact of transfer policies as well as the presence of the contract on the implementation of customer prepayment tax inspectors denied. However, they had a claim of some kind. However, the tax inspectors felt that deduction of VAT due on payment could be claimed by a company only to them within the agreed supplier of supply for the I quarter and April 2011. The court took this argument, because the inspectors did not consider that the transaction between the parties had entered into an additional agreement that provides for a pre-payment by the buyer regardless of the value of the consignment, the harmonization of prices, volumes and delivery schedule. That is, at the time of the business transactions in the contractual obligations of the parties there was no size restriction produced payment. This was done in order to secure a lower price for the goods, the delivery of which will be implemented in the future. The court stated that the taxpayer to the tax authority of all duly executed documents, the legislation on taxes and fees, in order to obtain the tax benefit is the basis for its production (paragraph 1 of the Resolution of the Plenum of October 12, 2006, № 53). Tax inspectors were not able to prove that, for tax purposes, the Company has reflected in the tax accounting operations are in line with their true economic sense. Also, the inspectors were not able to prove the bad faith of the companies and taking actions aimed at obtaining undue tax benefit. Accordingly, the decision of the Tax Inspectorate to refuse the application of VAT deduction on the advance, can not be considered legitimate.

Interest for installment payment of municipal property is not included in the basis of the VAT. This conclusion follows from the decision of FAS Volga region from August 7, 2012 № A12-542/2012. The central issue is this. As a result of a desk audit of the VAT return tax inspection found that the employer unreasonably failed to include the tax base interest paid to the seller when buying on credit property located in the municipal treasury. According to the tax inspectors, percentage increase the base for VAT under subparagraph 2 of paragraph 1 of Article 162 of the Tax Code, as they are the amounts related to the payment of the said property. For its part, the Court recalled that, in accordance with paragraph 2 of paragraph 3 of Article 161 of the Tax Code in this case, the tax base is defined as the sum of income from the sale (transfer) of the property subject to tax. In this case, the tax agents shall buyer (receiver) of the assets, except for individuals who are not individual entrepreneurs. Accordingly, at the buyer's responsibility to calculate the design method, to deduct from the income paid and pay to the budget the appropriate amount of tax. What exactly are the amounts in income from the sale (transfer) of the property included in the determination of the tax base for VAT, this regulation does not say. Meanwhile, from the analysis of Article 823 of the Civil Code and Article 153 of the Tax Code, according to the Court, that the disputed interest is the price for a commercial loan, and not the sale of property. In this regard, they are non-operating income and are not subject to VAT.

Cost of outsourcing can be allowed for tax purposes, provided that  Organization does not have the personnel officer in the state, which is responsible for recruitment. This conclusion follows from the decision of FAS Moscow District on September 5, 2012 in case number A40-170912/09-112-1373. As follows from the case, during the tax audit, the tax inspection took off costs incurred by the company as part of the outsourcing agreement. Accrual of income tax auditors substantiated as follows. They found out that the company is "leased" employees in an interdependent with her society, which, in addition, though, is using the "simplified taxation." According to the tax authorities, in this situation it is clear that the outsourcing agreement is concluded with a single purpose - to get an unjustified tax benefit. However, the judge, on the other hand, the actions of the taxpayer did not find the offense alleged against him. They found that the involvement of experts took place as part of the disputed contract outsourcing on the basis of specific monthly orders generated by the applicant. Application contained a reference to the organization's needs in certain specialists, indicating the positions, specialties, cost of service and pay, start date, end time, and with the passage of time and the specific employee names. To independently selecting such specialists society had no option because the state simply did not have the personnel officer. And after visiting the staffing of such a position, the duties of the employed personnel officers included only clearance of personnel files of employees. At the same time, thanks to the outsourcing agreement Company increased direct sales of products sold as "leased" workers organized its promotion in the domestic market. For the Court, this indicates that for tax purposes the organization considered the operation in accordance with their actual economic sense due to reasonable economic or other reasons (objectives business nature). In addition, the Court stated that the fact that the relationship between individuals is established to determine the correctness of the prices of the deals. However, complaints about pricing in tax is just something not there.

Organization is entitled to a lump sum to take into account for tax purposes the cost of purchasing a non-exclusive right to use accounting software. So decided FAS Volga district in its judgment of 12.07.2012, № A65-20465/2011. As follows from the case, the tax assessed additional income tax society. The reason was the fact that, according to the tax office, the cost of works and services for the development and implementation of software blocks "Personnel", "salary", "Accounting. Production "," Tax Accounting "(including operational testing and training) in the amount of 1,011,017 rubles., Should be attributed to depreciable property and, accordingly, is expensed in future periods. In turn, the Court recalled that, in accordance with paragraph 1 of Article 256 of the Tax Code depreciable assets are recognized, including the results of intellectual activity and other intellectual property rights, which are at the taxpayer's ownership. By virtue of the provisions of Article 1225 of the Civil Code, computer programs and databases, in fact, are protected intellectual creations. Meanwhile, the Court noted that the acquired intangible assets are recognized and (or) by the taxpayer of intellectual property and other intellectual property (exclusive rights to them.) For the recognition of intangible assets established in the first place, you must have the ability to bring the taxpayer economic benefit (income). At the same time accounting software directly income-are not related. This means that the cost of acquisition can not be the cost of the purchase of depreciable property. It is more appropriate to apply subparagraph 26 of paragraph 1 of Article 264 of the Tax Code. This provision established that the costs associated with the acquisition of the right to use computer software and databases on contracts with copyright holders, are the other costs associated with the production and sale. In the application of the accrual for such costs under subparagraph 3 of paragraph 7 of Article 272 of the Code recognizes the last day of the reporting period in which the application is received and put into operation.

Base for VAT and the amount of tax payable to the budget, calculated on the basis of the data available to the taxpayer with respect to transactions made ​​by him and their qualifications at the end of the tax period (that is, including all the possible changes). If it turns out that the payment is not related to payments for goods (works, services), then it can not be recognized in advance. And consequently, in the base of the VAT to include it is not necessary. This was indicated FAS Central District in its decision of 06.09.2012, № A35-11848/2011. As follows from the case, the tax inspectors on the basis of the field audit assessed additional public VAT. The reason was the fact that the base of this tax are not included amounts received payment. In turn, the Court found that the disputed funds were indeed received by the time the alleged shipment. However, society is not made ​​due to lack of supply of the relevant license. In such circumstances, the Court held that the funds does not meet the legal nature of the advance payments. The Court also referred to the Constitutional Court of 30.09.2004 № 318-O. It states that are recognized upfront payments received by the taxpayer in the future delivery of goods, performance of works. This obliges the taxpayer to increase the tax base for VAT on those funds that are received in advance, ie before the actual shipment. Accordingly, there can be recognized upfront taxpayer incoming payment, which is not related to the actual implementation in the subsequent periods of goods (works, services).

The Regulation of FAS Moscow District (Case of 31.07.2012, № A40-6560/12) with reference to paragraph 1 of Art. 312 of the Tax Code, noted that in applying the provisions of the international treaties of the Russian Federation on the basis of which the tax agent shall be exempt from withholding tax, foreign organizations to provide tax agent prior to the date of payment of income proof that the foreign organization has a permanent location in the state, with the Russian Federation has an international agreement regulating taxation issues. Said evidence shall be certified by a competent authority of the foreign state. If this confirmation is in a foreign language, the tax agent is also provided a translation into Russian. Competent authorities in the Russian Federation are the Ministry of Finance or his authorized representative, and in a foreign country - Minister of Finance, his authorized representative or the authority designated as a competent representative for the purposes of the Convention on the avoidance of double taxation of a particular state. Failure to comply with the conditions of release of tax revenues paid to a foreign organization from sources in the Russian Federation obliges society as a tax agent to produce the amount of the withholding tax and transfer to the budget. Since Article 310 of the Tax Code, the obligation to transfer to the budget amount of tax withheld from the income of foreign companies assigned to a tax agent if payment to the budget to be withheld and transferred to the budget of the tax to the tax agent penalties.

The Decree of the Presidium of the Russian Federation of 10.07.2012, № 2241/12 noted that if the parties by mutual agreement directly prescribed in the contract a way to end the obligation of the customer to pay for work performed (service) as a deduction of an amount of penalty in case of delay in their implementation final settlement of the contract, such a method, by virtue of Art. 410 of the Civil Code, is reasonable and is a contractual condition is not contrary to the requirements of civil law. In this case, for such a set-off enough applications on one side.

Information on the average number of employees of the organization and should represent all individual entrepreneurs without exception. It does not make any difference that the individual entrepreneur has no employees. This conclusion is contained in the Judgment of August 17, 2012 № VAS-10686/12. "Higher," the judge agreed that the actions of the entrepreneur constitutes a tax offense, the responsibility for which is provided by paragraph 1 of Article 126 of the Tax Code. Concluding there an entrepreneur obligation to provide information to the inspection of the average number of employees during the preceding calendar year, in spite of their absence, the court was guided by the provisions contained in paragraph 6, paragraph 1 of Article 23 and paragraph 3 of paragraph 3 of Article 80 of the Code. The arbitrators noted that the same paragraph of Article 80 of the Tax Code does not provide an opportunity not to submit to the tax authority information on the average number of PIs who have no employees. So there is no reason and proving the illegality of the contested decision inspection.

The tax authorities may not one day decide to call the taxpayer liable under paragraph 1 of Article 129.1 of the Tax Code and paragraph 2 of this rule, which provides for sanctions in the repetition of law violation. This conclusion follows from the decision of FAS Moscow District on August 6, 2012 № A40-110416/11-99-473. As follows from the case, the inspectors within society counter check sent by mail request for documents related to the activities of the audited taxpayer. However, the mailing address is returned to the inspections in connection with the expiration of the retention period. In accordance with article 93.1 of the Tax Code, the judge concluded that the claim is received by the Company. Meanwhile, despite the fact that the documents on time were not available, the decision on liability company to liability under paragraph 1 of Article 129.1 of the Tax Code of the inspection was not made. The tax authorities have decided to try again and gave us a requirement. However, it was eventually performed in violation of the time allocated for a five-day period. Naologoviki one day rendered two decisions - one on paragraph 1 of Article 129.1 of the Tax Code, and the other is for "recurrent", paragraph 2 of this Article, the penalty for which is not 5 and 20 thousand. Society went to court. And the judges agreed that the tax taken out unjustified decision. They pointed out that repeated criminal offense committed by one person in any one calendar year after bringing him to justice under paragraph 1 of Article 129.1 of the Tax Code. Passing inspection in a single day several decisions on Article 129.1 of the Tax Code is not re-formed. So that the inspection there was no reason to bring the applicant to the tax liability under paragraph 2 of Article 129.1 of the Tax Code.

The Regulation of FAS Moscow District (Case of 05.07.2012, № A41-20293/11) referring to the Decree of the Presidium of the Russian Federation of 24.11.2009, № 11200/09 noted that, in the event that the terms of payment of the loan agreement , and hence the calculation of interest on borrowings should be made in subsequent tax periods, and earlier periods of the taxpayer does not arise obligations to the lender upon maturity, does not arise and the costs to be included in the reduction in the tax base for tax income tax of previous periods.

The Regulation of FAS Moscow District (Case of 04.05.2012, № A40-87365/11-75-372) with reference to Articles 171 and 172 of the Tax Code, noted that the taxpayer is entitled to deduct VAT charged by suppliers of goods (work, services, property rights) in the tax year in which the conditions for the use of tax deductions, namely: goods (works, services, property rights) acquired for operations recognized as objects of taxation of goods (works, services, property rights) and recorded, are properly completed invoice and primary documents. The individual filling the gaps in trade bills and acts of transfer can not be a ground for refusing to deduct VAT.

Fixed assets, which the organization operates around the clock, you can amortize using a multiplying factor of "2". This was indicated FAS Moscow District in its decision of 7 August 2012 № A40-105313/11-140-440. As follows from the case, the fiscal authorities of the assessed additional income taxes and the amount of the sanctions. The reason was the fact that the order violated the application of Article 259 (Art. 259.3) of the Tax Code. It is amortized on an accelerated basis, plant and equipment that do not work in a high number of shifts, and a continuous clock function. Representatives of the fiscal authorities also referred to the fact that according to documentation provided by equipment manufacturers, these objects are designed for around the clock operation. So, round the clock for these assets is normal. The judges noted that the tax code does not decrypt the term "increased shift." Therefore, the provisions of paragraph 1 of Article 11 of the Code, the judge turned to the core articles of the Labour Code. And according to the rules of Articles 91, 103 TCs, if the production process the company goes beyond 40 hours a week, then it is entered shift work. In this work one shift - 8 hours a day with a 5-day work week - is normal, and two or more shift work is a work in high shifts. Respectively, to work in a high-clock work shifts is. The judges acknowledged that the concept of "conditions increased shift" is used in the Tax Code of the Russian Federation for the purposes of the special factor to the depreciation rate, while the subject of regulation of labor law is the relationship between employer and employee, folding over the establishment of working conditions of labor disputes, employee participation in production management, etc. However, the company as a production unit and the property complex can not function on their own, out of the will and participation of people - employees. Labor function of each employee connected with the operation of the equipment, and even staff not directly located in the premises (meaning leadership, administrative positions), are involved in the production process - control, control capacity. In this case, as the explanation of, the controversial equipment directly controlled by its employees. The presence of these circumstances, the Court concluded that the non-stop operation of the above equipment leads him to increased wear. Therefore, the fiscal authorities of unlawfully assessed additional income taxes.

The Regulation of FAS Moscow District on 31.05.2012 № A14-7931/2011 recognized that Chapter 21 of the Tax Code does not prohibit the signing of invoices on behalf of the individual entrepreneur authorized person. The judges argued their position as follows. According to paragraph 6 of Article 169 of the Tax Code of the invoice signed by the director and the chief accountant of the organization or other person authorized by the order (other administrative document) on the organization or attorney on behalf of the organization. When invoicing document is signed by the individual entrepreneur SP with details of the certificate of state registration. At the same time, in accordance with Article 26 of the Code taxpayer can participate in a relationship governed by the legislation on taxes and duties through legal or authorized representative, unless otherwise provided by the Code. By virtue of Article 21 of the Code the legal representatives of taxpayers - natural persons are persons who act as their representatives in accordance with the Civil Code of the Russian Federation. And paragraph 3 of Article 29 of the Code of the authorized representative of the taxpayer - natural persons shall exercise its powers on the basis of a notarized power of attorney or power of attorney, equated notarized in accordance with the Civil Code of the Russian Federation. However, in accordance with Article 185 of the Civil Code recognizes the power of attorney written authorization issued by one person to another person to represent to third parties. The written authorization of the transaction can be represented by the representative submitted directly to the third party. Thus, the judge concluded that the trustee has the right IP to sign invoices. That is, the invoice signed on behalf of the individual entrepreneur authorized person is not considered as made up with the offense.

The Decree of the Presidium of the Russian Federation of 10.07.2012, № 2873/13 declared illegal involvement taxpayer liable for the Section 1, Art. 126 of the Tax Code (fine of 200 rubles for each non-or late submission of documents), superimposed on the results of a desk audit. The basis for the Court's conclusion was the fact that the taxpayer is not required to appeal against the said decision of the tax authority of court. From the system of interpretation of the provisions of Articles 101, 101.2, 101.4, 137-140 of the Tax Code that provided for in paragraph 5 of Article 101.2 of the Tax Code mandatory pre-trial order to appeal to a higher tax authority decision on liability (denial of involvement) to account for a tax offense applies only to decisions anticipated tax documentary or desk audits. In this case, the mandatory pre-trial appeal procedure does not apply to the tax authority decision made ​​on a review of materials other tax control measures.

Decision of the Russian Federation of 20.08.2012, № 8116/12 declared invalid item 2.11 of Annex № 2 "Order of filling income tax return for the tax paid in connection with the simplified system of taxation" (order of the Russian Finance Ministry of 22.06.2009 № 58n) in part, that all values ​​of cost parameters indicated in full rubles, with values ​​of less than 50 cents discarded, and 50 cents or more are rounded up to the full rate.

The Decree of the Presidium of the Russian Federation of 29.05.2012, № 16335/11 noted that if the minutes of the general meeting of shareholders, which are non-residents, provided that the dividends payable are reflected in the foreign currency and payable in the currency, despite the fact fact that they are subject to the accounting in rubles, the equivalent of the date of this decision, there is a negative foreign exchange differences may be included in non-operating expenses for tax purposes. The provisions of paragraphs. 5 § 1 of Art. 265 of the Tax Code does not contain any restrictions to account for the purposes of taxation of foreign exchange differences arising from the revaluation of foreign currency expressed in the commitment made by taxpayers in activities aimed at generating income. Absent in this article and any restrictions to account foreign exchange losses arising from the revaluation of its obligations to pay dividends.

The Regulation of FAS Moscow District (Case of 04.05.2012, № A40-58305/11-140-254) with reference to paragraph 3 of Art. 257 of the Tax Code, noted that for tax purposes to intangible assets include only the exclusive rights to intellectual property, if in the process of developing a software product having the object of copyright in the form of an intangible product, recorded on a physical medium (disc), and the property rights to the object copyright. Transfer the same rights to the results of software development (ie, physical media and access codes) does not involve the transfer of exclusive rights to the software. These costs, in view of paragraphs. 26 paragraph 1 of Art. 264 of relate to the other costs associated with the production and sales, and are subject to the one-time write-off on the basis of the acts of acceptance and delivery of works.

The Decree of the Presidium of the Russian Federation of 21.06.2012, № 2676/12, with reference to paragraph 4 of Art. 170 of the Tax Code, noted that lending operations are not subject to apportionment, including and to determine the total amount of 5% of the total cost of the acquisition, production and (or) the sale of goods (works, services), property rights.

The Decree of the Presidium of the Russian Federation of 24.07.2012, № 3546/12, with reference to paragraph 4 of Art. 283 of Tax Code, noted that the successor of the reorganized entity to confirm the losses carried forward past also extends the obligation to keep the primary accounting documents confirming the amount generated legal predecessor loss.

Regulation of FAS Moscow District (Case of 26.04.2012, № A40-83149/11-116-236) additional charge of unlawful income tax on compensation payments for a one-day trip. The court with reference to Art. 168 of the Labour Code of the Russian Federation noted that, by virtue of paragraph 3 of Art. 217 of the Tax Code are not subject to taxation, among others, the cost of compensation payments under an employment contract or other administrative documents. Other restrictions on the non-inclusion of travel expenses tax legislation does not contain, is not taken into account the argument inspection that the provisions of Articles 167 and 168 of the Labour Code and section 11 of the special direction of employees on business trips (approved by the Government of the Russian Federation of 13.10.2008 № 749) that if the traveling and has the opportunity every day to return to their place of permanent residence, the payment the employee is not made daily. Tax agent presented documents proving housekeeping visits workers, payments made on the basis of orders of the organization, travel expenses, confirmed the service tasks, orders to send an employee on a business trip, travel vouchers, expense reports.

The Decree of the Presidium of the Russian Federation of 29.05.2012, № 17259/11 with reference to Art. 70 Tax Code, noted that, based on a literal distinction revenue claim a tax audit should be directed taxpayer (tax agent) within ten days from the date of entry into force of the decision to bring (denial of involvement) to account for tax offenses (paragraph 2), and in other cases, this requirement should be sent no later than three months from the date of detection of arrears (item 1). The rules of this Article shall apply also in the direction of the timing requirements for payment of fines (paragraph 3). In this case, the tax authority has the right to impose penalty interest as with arrears, and in certain periods of delay in payment to the obligation to pay tax. Verification of compliance with the statute of limitations by collecting fines for each day of delay.

A taxpayer who has been required documents within the site inspection, the inspection must provide access to those papers in their territory. Moreover, within a period of ten days the documents to be retrieved from archives or other storage places and are auditors. On this duty of the taxpayer to submit the requested documents is performed. The conclusion reached by FAS Moscow District in its decision of 13 July 2012 № A40-133957/11-116-358. As follows from the case, the tax during the field audit requested a company to provide them with 7809 documents. Since the organization of this requirement is not met, the inspectors decided to punish her with a fine under Article 126 of the Tax Code, which amounted to more than 1.5 million. In turn, the judge considered it unlawful actions of inspection. The court decided that, in accordance with Article 89 of the Tax Code field audit conducted by the tax authority in the taxpayer where, because of paragraph 3 of paragraph 2 of Article 93 of the Code inspectors are entitled to review the original documents. This provision establishes the right place of the site inspection of the taxpayer as a territory, its subsidiaries and business units. Thus, during the site inspection by the taxpayer not required to submit all of the documents to the IRS, because there check may be carried out only in one case - namely, the absence of the possibility of an audit in the taxpayer (paragraph 1 of Art. 89 of the Tax Code) . Hence, in all other cases, a field tax audit, the tax authorities shall review the records only in the audited entity and its affiliate or business unit. In this case, the submission of documents in accordance with Article 93 of the Code within the site inspection does not mean their departure from the territory of the taxpayer. The court found that in this case the company has collected all the documentation that is so interested in tax, in one of its rooms. On this fact the company has supplied the inspectors notified in writing. In these circumstances, the Court held that the structure of the offense alleged against the taxpayer is absent.

The Regulation of FAS Moscow District (Case of 18.04.2012, № A40-76620/11-140-329) with reference to paragraph 2 of Art. 266 Tax Code, noted that the taxpayer has the right to include in the allowance for doubtful accounts receivables to the reduction of the tax base for income tax as a bad debt in the event that the statute of limitations has not expired, but there can not be an instrument of punishment, court bailiff. The fact that the taxpayer has the right to file a writ of execution to collect the returned within the statutory time limit to this norm of the Tax Code does not apply.

The Regulation of FAS Moscow District (Case of 13.04.2012, № A40-85377/11-107-366) referring to the Decree of the Presidium of the RF from 22.12.2009 № 11175/09m noted that spending on promotion of the goods supplied and owned distributors (merchandising services) aimed at increasing the future supply of the society, therefore, are economically justified, as are aimed at increasing revenue and income (profit) of supplies.

Payment to the bank for the outstanding support to counter the claim the bank guarantee is recognized legal costs. So, this amount may be included in the legal costs, which can be shifted to the loser of the dispute. The conclusion reached by the Presidium of the proceedings number A40-43967/10-129-228 Moscow Arbitration Court. The central issue is this. The company won a dispute with the IRS on additional, which made the inspectors during the inspection. In the course of the proceedings the company introduced as a counter to ensure a bank guarantee. After the court ruled in her favor, she went to court with another lawsuit - is to collect from the IRS court costs. And part of those costs were included for the bank guarantee. Price issue more than 3.5 million. Refusing to grant the application, the courts proceeded from the premise that society on its own initiative to present a bank guarantee as a counter security. And that society hoped to exclude a possible failure of the court of an application for interim measures. Therefore, these costs are not reasonable and is not reimbursable. In turn, "three judges' definition of BAC May 11, 2012 № VAS-6791/11 indicated that on this issue at the present time there was conflicting jurisprudence. Arbitrators are reminded that according to Article 101 of the Code of Arbitration Procedure court costs consist of state fees and court costs associated with the review of the case by the arbitral tribunal. In doing so, legal costs Article 106 APC assigned monetary amounts to be paid to the experts, witnesses, interpreters, costs related to the examination of evidence at the scene, the costs for the services of lawyers and other persons providing legal assistance (representatives), the costs of the legal entity to notification of a corporate dispute, if federal law provides for the obligation of the notification, and other expenses incurred by the persons participating in the case. Based on the provisions of the said rules of the Code, a number of commercial courts concluded that the list of costs is not exhaustive. And because costs in the form of payment of remuneration to the Bank for bank guarantees issued in order to provide security for the counter claim, shall be chargeable to the losing party in the court costs (FAS ruling of the Moscow District of December 21, 2010 № KA-A40/15924-10, Resolution of the Ninth Arbitration Court of Appeal of 29 December 2008, the case number A40-51265/08-111-199, on May 22, 2008 № A40-37510/07-211-SR etc.). "Higher," the judge canceled the court accepted the case of acts of refusal of society to recover from the inspection costs for the bank guarantee. In the case of a canceled for a new trial.

The Regulation of FAS Moscow District (Case of 25.04.2012, № A40-79873/11-99-360) with reference to paragraph 4 of Art. 264 of the Tax Code, noted that the cost of advertising brochures containing information regarding existing products, are expenditures on advertising and rationing lie down and at the same time, by virtue of Articles 1477 and 1482 of the Civil Code of goods logos on clothing of workers and of the clothes they wear while working for normalized costs are not included.

The Decree of the Presidium of 07.02.2012, № 11637/11 with reference to Art. Art. 146, 153, 162, and paragraph 4 of Art. 166 Tax Code, noted that the public paid to suppliers on the basis of supply contracts to reduce premium cost of the goods, which implies the need for changes in the tax base for the VAT from suppliers and the amount of tax deductions for the value added tax from customers, so they can not be classified payment for services rendered by the Company to suppliers.

The Presidium of the decree of June 22, 2012 № 17 has defined the place of the constant of the Court for intellectual property rights the city of Moscow. Court for intellectual property rights is a specialized arbitration is considered within its jurisdiction cases of disputes related to the protection of intellectual property rights, as a trial and appellate courts. Act of December 6, 2011 № 4-FKZ established that court for intellectual property rights must be established no later than 1 February 2013. Thus it is formed with the appointment of at least half of the judges of the established number of judges of the Court for intellectual property rights.

In a letter to FAS Russia of 02.05.2012, № AK/13623 noted that the provisions of the Federal Law of 13.03.2006 № 38-FZ "On Advertising" distributed including the advertisement being placed on the Internet. However, information about the product, its origin, packaging, product range, price, consumer properties and other similar information describing the goods for the consumer, posted on the official website of the manufacturer or seller of goods can not be classified as advertising. However, qualification as an advertising material or information is not dependent on how it is spread (on the Internet), and the manner of presentation and determined purpose of such information. Thus, in some cases, when posted on the website is aimed not so much to inform consumers about the organization or of goods sold, but on the selection of certain goods or the organization of similar goods, organizations (such as a pop-up banner), such information can be recognized advertising.

Subject to the statutory requirements of the taxpayer, in the presence of real operations for the acquisition of goods (works, services), it can not be denied the right to deduct VAT. This was indicated FAS West Siberian District in its decision of 7 June 2012 in case number A75-11988/2010. This case is interesting in that it judges sided with the tax authority, which rejected the company to deduct the VAT claimed on subcontracting. Moreover, the tax authorities failed to prove to the Court that no work on the fact was not and could not be. The fact that the counterparty of the Company, which was responsible for the execution of controversial works, no fixed assets, including vehicles and personnel. And its core activity is trading. One would assume that the works he drew "third parties." By the way, most of the funds received for their execution, transfer to the account of a Company that would confirm this assumption. However, this money is then "sprayed" on Retail accounts. In this case, the inspection found no evidence the transfer of funds for fuel, subcontractor, or lease motor vehicles. But the clincher was such that the disputed work allegedly performed on a secure site. In this case, the workers were ordered not pass, without which the territory of the object is not to get into. The taxpayer could not challenge these arguments and the Court sided with the tax authorities, having decided that the company is not reasonably applied the multi-million dollar deduction of VAT.

Regulation of FAS Moscow District (Case of 12.04.2012, № A40-123929/10-107-687) with reference to paragraphs. 20 paragraph 1 of Art. 265 of the Tax Code and the Federal Law of 24.11.1995, № 181-FZ "On social protection of disabled people in the Russian Federation" recognized as lawful the inclusion of non-operating expenses in the target board budget city of Moscow for job quotas, as the amount of required payments.

The Regulation of FAS Moscow District (Case of 10.04.2012, № A40-13739/10-145-68) noted that some shortcomings in the design of sick leave with no significant, can not be the reason for the failure to offset the costs of compulsory social insurance.

The Regulation of FAS Moscow District (Case of 06.04.2012, № A40-65744/11-90-285) with reference to Art. 255 of the Tax Code, noted that the taxpayer is entitled to take into account in the cost of wages for income tax purposes the cost of free meals workers where free meals provided by the collective and (or) the employment contract.

The Regulation of FAS Moscow District (Case of 05.04.2012, № A41-30918/10) with reference to Art. 171 and 172 of the Tax Code, noted that these rules of the Tax Code determines that the condition of the residue will be the acquisition of goods (works, services) for operations recognized subject to taxation in accordance with Sec. 21 of the Tax Code, the presence of the invoices and the adoption of the registration of goods (works, services) and the appropriate source documents. The standards legislation indicate that the amount of tax assessed to be reported in the tax return is not determined on the basis of credit turnover to 68, and on the basis of calculated according to the Tax Code of the tax base and the tax rate. The legislation also provides for the limitation of the amount applied by deducting the amount of turnover in the debit account 68. The specifics of accounting assumes that the amount of tax calculated in accordance with the laws and reflected in the tax return may not match the totals billing records 68 accounting because the accounts are recorded including internal momentum.

The Regulation of FAS Moscow District (Case of 04.04.2012, № A40-24625/11-90-105) noted that the taxpayer lawfully reduced income from retirement accounts payable with expired legal term for tax purposes in the amount of VAT paid on advances buyers because of the amount of advances received previously been calculated and paid VAT, which claimed to be recovered was not, since the goods are not shipped, deposits are not returned upon payment of VAT in the budget of the company did not receive an economic benefit in cash or in kind, given VAT not reasonably is income.

For the first time in the practice of reviewing cases in the order of supervision with the participation of the Federal Tax Service of the Presidium approved a settlement agreement between the taxpayer and the Tax Service. Thus the "high level" judicial acts were canceled and terminated the proceedings. As the press service of the Federal Tax Service, formerly the courts of first instance and appellate considered this matter in favor of the tax authority. However, the appeal court upheld the position of the taxpayer. Disagreeing with the decision of appeal, the tax authority appealed to the Supreme Arbitration Court, a statement of its supervisory review. Meanwhile, even before the proceedings of the Presidium of the taxpayer admitted the correctness of the inspection. In accordance with the settlement amount, additionally accrued for verification, he shall pay to the budget in its entirety. In FNS noted that the settlement agreement, approved by the Presidium, is a precedent. In order to further improve and develop procedures for amicable settlement of tax disputes by representatives of tax authorities consider it necessary to use all possible mechanisms and procedures for alternative resolution of tax disputes.

The judgment of the Moscow District of FAS (case from 23.03.2012, № A40-47825/11-116-132) noted that when distributing promotional materials, the cost of which is taken into account as an expense in the taxation of profits, there are no grounds for the application of paragraphs. 25 § 3 of Art. 149 of the Tax Code (tax-exempt transfer of promotional goods (works, services), the cost of acquisition (creation) which units do not exceed 100 rubles) and paragraph 4 of Article 9 para. 170 of the Tax Code, which allows the presentation to deduct VAT in cases where a particular tax period, the share of total expenditure on the acquisition, production and (or) sale of goods (works, services), property rights, transactions of sale which are not subject to taxation not in exceed 5 percent of the total amount of the total cost of the acquisition, production and (or) sale of goods (works, services), property rights. By virtue of paragraphs. 2, § 1 of Art. 146 of the Tax Code, transfer of goods for their own use subject to VAT form is only if the cost of their acquisition are not included in the taxation of profits. Thus, the object of VAT taxation when distributing promotional items missing. As the promotional material acquired for the purposes of the main activities, implementation of which shall be subject to VAT, the taxpayer has fulfilled the requirements for obtaining VAT deductions provided by paragraph 2 of Art. 171 of the Tax Code.

The deadline for submission of accounts to the tax authority is not counted in the calendar, and in working days. This conclusion came FAS Northwestern District in its decision of June 6, 2012 № A56-7883/2011. As follows from the case, the inspection company fined under paragraph 1 of Article 126 of the Tax Code for late submission of financial statements. The balance was deposited on November 3, while in accordance with paragraph 2 of Article 15 of the Act of November 21, 1996 № 129-FZ "On Accounting" the 30-day deadline for submission has expired on November 1. Meanwhile, the Court sided with the taxpayer. The court noted that under paragraph 1 of Article 11 of the Tax Code of the institutions, concepts and terminology of civil, family law and other branches of the Russian Federation, used in the Code apply in the sense in which they are used in these areas of legislation. Otherwise may be provided directly in the Code. So, just in case, when the Internal Revenue Code is not defined a concept or term, they can be used in the sense in which installed other legislation. At the same time, in paragraph 6 of Article 6.1 of the Code expressly states that the period specified days, calculated in working days, if it is not installed in calendar days. Accordingly, it is this norm should be guided by the purpose of applying the tax liability under the law. The Court emphasized that the calculation of the period the taxpayer buhotchetnosti by the general rules (ie, in calendar days) in this case "is based on an incorrect application by the courts of law and does not answer the principles of fair justice."

The taxpayer is obliged to keep records that substantiate the size of the subject to VAT recovery during the whole period when the tax authority has the right to conduct tax audit. This conclusion came from YOU in determining the June 6, 2012 № VAS-3328/12 in case number A53-19232/2010. As follows from the case, with the establishment in August 2008 a new legal entity as a contribution to the charter capital of the company has transferred real estate. The amount of VAT subject to recovery under subparagraph 1 of paragraph 3 of Article 170 of the Code, has been reflected in the declaration. During the inspection tax found that the assets in 2003 were reconstructed (completion), so that their initial cost has increased. Inspectors are required to submit their invoices of the contractors, and book purchases (in order to determine the amount of VAT previously paid by the contractors involved in reconstruction, which the society is not reinstated by the transfer of property to the authorized capital). However, it appeared that in 2009 these documents were destroyed. This was the basis for determining the amount of VAT inspection, subject to recovery, calculated using data from the inventory of cards of the taxpayer. YOU nothing wrong in the actions of the tax is not found. The judges noted in paragraph 7 installed to paragraph 6 of Article 171 of the Code of the duty of the taxpayer in the case of restoration of the amount of tax taken into account when carrying out modernization (reconstruction) of the property within ten years specified in the declarations of the calculated amount of the reduced tax. Named assumes responsibility in the declaration information based on primary documents, confirming the reliability of the reflected data. The arguments about the illegality of the use of public inspection of the calculation method of the "higher" arbitrators are also recognized to be unfounded. They proceeded from the fact that the inspection of the data used inventory cards of the taxpayer, despite the fact that the application of the method of calculation due to the lack of documents, the preservation of which must be guaranteed by society.

The legislation does not provide for the obligation of the taxpayer shall be granted UPDF, the tax authority to provide proof of use of property for business purposes. A list of these documents are also not set by law. This was pointed out FAS Volga-Vyatka region in its decision of May 30, 2012 № A82-6216/2011. As follows from the case, the property of the individual entrepreneur, applying USN, was the building and construction of hydraulic water berth. During the inspection of one of these facilities tax found that it is in poor condition. And it excludes its use for business. In connection with this merchant was asked to pay for a given object property tax and the amounts of fines. However, this proposal the taxpayer has refused, citing the fact that the disputed object is about to be restored and will once again be used. In turn, the Court recalled that, in accordance with paragraph 1 of Article 346.11 of the Tax Code, organizations and individual entrepreneurs together with a common system of taxation is entitled to apply STS to the procedure provided for Chapter 26.2 of the Code. Moreover, paragraph 3 of Article 346.11 of the Code provides that organizations and individual entrepreneurs applying the regime released UPDF, in particular, from the obligation to pay tax on personal property in respect of property used for business. At the same time, according to Article 65 of the APC is the fiscal authorities must prove that the property was used for personal needs of the citizen. And because the relevant documents from the tax was not their decision on additional accrual of the tax was repealed.

In case of an alien having no work permit to work attracted the contractor, it does not mean that the customer will not be held responsible. He must also bear the administrative responsibility for violation of the rules to attract foreigners to work in Russia. By the conclusion reached on the basis of the Presidium of the case number A40-13149/11-94-120 Arbitration Court of Moscow. According to the case materials, the Company entered into a contract with a certain citizen of a contract under which the Executive has undertaken to carry out the organization, provision and management of repair and finishing works. He also had to ensure that these works - pass the result to the customer within the specified contract period. That, in turn, pledged to accept the result of work performed and pay him the stipulated price. Immigration Service found at the site of a citizen of Uzbekistan, who had no work permit. In this case the controllers have decided to prosecute, under Paragraph 1 of Article 18.15 of the Administrative Code, including the customer, even though the contractor blame for the violation took over. It is noteworthy that all three instances the courts sided with the representatives of the Federal Migration Service in Moscow. The courts have indicated the presence in society of the actions imputed to him an administrative offense. The argument was the following judges: it worked at the site of the Customer foreigner, who lacked authorization to work. And this is nothing but a violation of the provisions of paragraph 9 of Article 13.1 of the Act of July 25, 2002 № 115-FZ. So in this case, it must be responsible for both the contractor and the customer.

The possibility of depreciation does not depend on the date of registration of the (self-propelled) funds in the bodies of Gostehnadzora.K conclusion reached by the FAS of the West Siberian District in its decision of May 5, 2012 № A27-10607/2011. As follows from the case, on the basis of a tax audit community was assessed additional income tax. Inspectors deemed inappropriate amount of depreciation accruals for dumpers BELAZ due to the fact that he is not registered in Gostekhnadzor. According to the auditors, the useful life of the purpose of applying Article 258 of the Tax Code can not begin before the date of vehicle registration. Meanwhile, the judge sided with the taxpayer. They pointed out that in accordance with paragraph 1 of Article 256 of the Code recognizes that depreciable property which is located at the taxpayer's ownership, use them to generate income and the cost of which shall be repaid by depreciation. The arbitrators found that the purchase and operation of the controversial dump card account is confirmed, treaties, acts of reception and transmission of fixed assets, inventory cards, waybills, the schedule of the actual flow statements and issuing fuel. And therefore, society has the right to charge depreciation on the vehicle from the 1st of the month following the month in which the object is put into operation. And the fact of its state registration in this case is irrelevant.

Tax shall not be entitled to charge interest on the amount of personal income, time not listed by the tax agent, for the reason that his accounts of the inspection itself, and also blocked. By the conclusion reached in the Presidium of the case number A56-19155/2010. "Troika" of judges in determining the EAC on March 15, 2012 № VAS-17259/11 "to the nines," the cloak of his subordinate colleagues solutions. "Higher," the judge noted that the provisions of paragraph 2 of paragraph 3 of Article 75 of the Tax Code that fines are not charged on the amount of arrears, which the taxpayer could not pay due to the fact that under the decision of the tax authority or the court had suspended the operation of the taxpayer at a bank or seized on his property. In this case, paragraph 7 of Article 75 of the Code is established that the rules provided in this Article shall also apply to tax agents. It seems very strange position of the tax. What could be the penalties if the tax should be deducted from the salary, which the company does not issue because of its expense arrested? In the opinion of EAC can not be considered reasonable charge penalty interest on arrears of income tax for the period preceding the tax audit. Comparing the provisions of Articles 46 and 75 of the Code, the judge concluded that the payment of fines should be considered as an additional duty of a taxpayer other than the obligation to pay the tax. It is performed either simultaneously with the payment of tax, or later, but not before. In other words, the performance of the obligation to pay fines can not be considered in isolation from the obligation to pay the tax. Therefore, after the expiration of the term debt collection preclusive tax penalties can no longer serve as a way to ensure the fulfillment of the obligation to pay the tax. And because they tax charge is not entitled to. The Presidium is fully supported the position of the "troika".

As a result of a tax audit inspectors found that the company has the duty to VAT. On this basis it has been held liable under paragraph 1 of Article 122 of the Tax Code. However, in the judgment of the Federal Antimonopoly Service of the Volga Region 1 June 2012 in case number A12-16620/2011 judge reminded that under Article 106 of the Tax Code, a tax offense shall be guilty of an unlawful act (action or inaction) of the taxpayer or tax agent or other persons for Code which establishes liability. In this case, paragraph 4 of Article 110 of the Code provides that the wine organization in the commission of the offense of tax is determined by the fault of its officers or its representatives, acts (inaction) which resulted in the commission of tax offenses. And in Article 109 of the Code defined circumstances precluding involvement of the person liable for tax offenses, which include, inter alia, include the lack of guilt of the person committing a tax offense. Moreover, based on the provisions of subparagraph 4 of paragraph 1 of Article 111 of the Code, a list of these circumstances is an open question. In the present case, the verdict of the court established the fact of fraudulent intent and a specific official of the society - the manager. A director of the company was recognized as deceived and misled. On this basis the judge concluded that there is no guilt in the actions of the society in committing a tax offense under paragraph 1 of Article 122 of the Code.

The amounts of VAT charged by contractors the lessee during the permanent improvements to the leased premises shall be deductible only if the transfer results of these studies to the lessor. In that order insisted tax, but, do not agree to take off not only taxpayers, but a judge. An example of this - the decision of the Moscow District of the Federal Antimonopoly Service May 25, 2012 № A40-74770/11-129-317. As follows from the case, the society entered into a lease of nonresidential premises for a period of 7 years. However, his condition did not allow to use the area as intended (for delivery in the sublease). Therefore, the company had capital investments in permanent improvements of leased buildings. For this purpose, an agreement was concluded with the contractor. All is good, but refused to deduct tax relevant amounts "input" VAT. For its part, the judge stated that the fact that the society incurring costs for the production of construction works offices, and the fact that the VAT tax is not contested. It is obvious that the work performed are permanent improvements that are associated with the production activities of the company. After subletting the premises neotremontirovannyh simply impossible. Moreover, the "capital" expenditures made directly to the operations recognized subject to VAT. After reviewing the case file, the arbitrators stated that based on the meaning of paragraph 2 of Article 171 and paragraph 6 of Article 172 of the Tax Code, tax law does not bind the deduction for tax paid to the contractor, with the subsequent transfer of permanent improvements to the owner of the building. In such circumstances, according to the ministers of Themis, the tax authority no grounds for refusal of the application of VAT deductions on the disputed business transaction.

The judgment of the Moscow District of FAS (case from 16.03.2012, № A40-100845/10-4-498) with reference to the Resolution of the Supreme Arbitration Court of 15.06.2010, № 1574/10 noted that the provisions of paragraphs. 2, § 2 of Art. 265 and Art. 266 of the Tax Code in conjunction with the rules governing accounting, include the obligation to take into account the amount of tax liabilities of debtors, for which the statute of limitations has expired, in the non-operating expenses in a given tax period (the year of expiration of the period), and not arbitrarily chosen by the taxpayer . Violation of this regulation by the taxpayer, in terms of its non-fulfillment of obligations for inventory commitments in the statutory terms and issuing appropriate orders can not be regarded as grounds for exclusion of accounts receivable with expired limitation period in the non-operating expenses in the period in which the limitation period has expired .

The judgment of the Moscow District of FAS (case from 15.03.2012, № A40-807/10-20-4) with reference to paragraph 1 of Art. 252 of the Tax Code noted that the right to reduce the amount of income received expenditures provided to taxpayers to offset the costs actually incurred by them relating to the receipt of income, and therefore, it is due to the need to confirm the proper documentation of the fact incurring such expenses. For the purposes of the above rules to account for costs when calculating the tax is the taxpayer must prove the validity of their claims, the obligation to submit documents proving the charges rests with him. The fact of stealing a safe with documents does not relieve the taxpayer from the performance of their duty to confirm the costs incurred by the primary documents of tax legislation.

The judgment of the Moscow District of FAS (case from 12.03.2012, № A40-47608/11-91-203 noted that the Tax Code does not contain a definition of compensation relating to the performance of job duties. Hence, by § 1 of Art. 11 Tax Code, the term is used in the sense that it gives the labor laws. in Art. 164 of the Labour Code stipulates that compensation - a cash payment set for the workers compensation costs associated with the performance of their work or other duties on non-interest insurance contributions and personal income tax.

Resolution of the Moscow District of FAS (case from 12.03.2012, № A40-64229/11-129-273) found to be unlawful omissions of the tax authority, and, consequently, the decision to call the taxpayer liable. Inaction is expressed in non-taxpayer copies of documents obtained during the site inspection company and used as evidence of imputed tax offenses (protocols questioning contractors, extended current account statements, etc.). By an act of tax inspection, in violation of Article 3.1. 100 of the Tax Code, have not been accompanied by the documents listed in the Act and confirming the facts of violation of the applicant legislation on taxes and fees. Because § 6 Art. 100 of the Tax Code establishes the preclusive time limit for submission of written objections to the tax audit act, omission of the tax authority made it impossible to view public objections to the tax audit report in its entirety. Evidence of delivery of these documents to the applicant at the time of inspection, review of materials testing, inspection is not represented.

The Decree of the Presidium of the RF from 03.04.2012, № 15483/11, with reference to paragraph 1 of Art. 24 and Clause 2 of Article. 161 of the Tax Code stated that the failure of the Russian organization of responsibilities for the retention of value added tax from the funds paid to the foreign contractor does not relieve it of the obligation to calculate the tax and pay it into the budget. In this case, the specified obligation of a tax agent corresponds the right to use the deduction of value added tax in the amount of tax paid in the manner prescribed by paragraph 3 of Art. 171 of the Tax Code.

Seizure of vehicles does not entail the loss of property rights to them. Moreover, the application of this measure is not grounds for removing the vehicle from registration and exemption from payment of vehicle tax. To such conclusion the Supreme Arbitration Court in its decision of May 18, 2012 № VAS-5900/12. The essence of the dispute is as follows. In a criminal case on the part of the individual entrepreneur registered in the vehicle was seized. According to PI, it was an obstacle to the work of any action with vehicles, including removing them from consideration in the traffic police. However, the judges felt that in this situation, the obligation to pay the vehicle tax to the merchant has not been removed. His conclusion they did under the provisions of Articles 357, 358, 362 of the Tax Code. In addition, the PI was unable to provide the court with proof that he is in the relevant time, addressed to the bodies of state registration of the vehicle with the application for deregistration of any of the number of cars included in the inventory of his arrest and this was refused.

Organizations and individual entrepreneurs are entitled to exemption from VAT if within three months the amount of revenue from the sale of goods (works, services), excluding tax shall not exceed a total of two million rubles. This is referred to in paragraph 1 of Article 145 of the Tax Code. It is necessary to provide the IFTS waiver from the duties of VAT, that is, this exemption does not apply, by default, the FAS said the West Siberian District in its decision of May 2, 2012 № A27-5809/2011. As follows from the case, tax specialists have found that an entrepreneur, being in the audited period, the payer of the VAT, this tax is not counted and not paid. At the same time an application for exemption from duty and VAT registration documents confirming the right to release the businessman to the tax authority is not represented. The fact that the PI for the preceding three months has not earned 2,000,000 rubles, the situation can not be saved. The judges concluded that the employer violated the order of exemption from the duties of VAT provided in Article 145 of the Tax Code. Therefore, additional charges incurred by the tax, the servants of Themis felt more than justified.

The amounts of VAT charged by contractors the lessee during the permanent improvements to the leased premises shall be deductible only if the transfer results of these studies to the lessor. In that order insisted tax, but they do not agree to a judge. An example of this - the decision of the Moscow District of the Federal Antimonopoly Service May 25, 2012 № A40-74770/11-129-317. As follows from the case, the society entered into a lease of nonresidential premises for a period of 7 years. However, his condition did not allow to use the area as intended (for delivery in the sublease). Therefore, the company had capital investments in permanent improvements of leased buildings. For this purpose, an agreement was concluded with the contractor. Tax Deduction denied in relevant amounts "input" VAT. For its part, the judge stated that the fact that the society incurring costs for the production of construction works offices, and the fact that the VAT tax is not contested. It is obvious that the work performed are permanent improvements that are associated with the production activities of the company. After subletting the premises neotremontirovannyh simply impossible. Moreover, the "capital" expenditures made directly to the operations recognized subject to VAT. After reviewing the case file, the arbitrators stated that based on the meaning of paragraph 2 of Article 171 and paragraph 6 of Article 172 of the Tax Code, tax law does not bind the deduction for tax paid to the contractor, with the subsequent transfer of permanent improvements to the owner of the building. In such circumstances, according to the judges, the tax authority no grounds for refusal of the application of VAT deductions on the disputed business transaction.

Late submission of documents claimed by the tax punishable by a fine under Article 126 of the Tax Code. However, in some cases, the judge can reduce it significantly. An example of this - the decision of the Central District of the Federal Antimonopoly Service May 21, 2012 № A48-3647/2011. As follows from the case, during the desk audit refined society of the VAT declaration was sent to require the submission of documents. At 10 days after its receipt the company had to produce a book purchases tax authorities, the book sales, invoices for purchased goods (works, services), explaining how the product is in stock postings to the provision of accounting documents confirming this fact; contracts with suppliers of goods (works, services), information on availability of storage facilities (number, address), in their absence - contracts of storage, payment documents confirming payment of the rent; information on the implementation of delivery - as a transport carrier goods, and so forth Copies of the documents in the amount of the claimed 360 pieces were submitted to the tax in violation of the deadline of 8 days. As a result, fiscal authorities have written to society a fine of 144,000 rubles. In this case tax inspectors have taken into account as an aggravating responsibility of the fact that in 2011 the company already was involved in a similar responsibility. In this regard, the size of the sanctions has been increased by 100%. Meanwhile, the judge in this case found the circumstances mitigating liability of the taxpayer. The court took into consideration the following facts: a minor omission period (eight days); understaffing shots - in the accounting department lacked the staff, chief accountant of the disease, which is involved in the preparation of documents for the tax office, and in parallel - Preparation of tax, accounting and statistical reporting. In addition, it became clear that the Organization had only one copy machine, and the average time to make a copy of it is 1.5 minutes. It is obvious that under such circumstances, it is difficult to comply with the requirement of the tax on time. Therefore, acknowledging the guilt of the taxpayer, the Court reduced the size of all imposed on him a fine of 100 times.

The organization applying mode UPDF can not be penalized under Article 122 of the Tax Code for failure to pay VAT, even if he committed it to the invoice. This conclusion came FAS Northwestern District in its decision of April 17, 2012 № A66-9074/2011. The Arbitration Court had ruled that in accordance with paragraph 2 of Article 346.11 of the Tax Code provides for the use of UPDF organizations of their exemption from the obligation to pay corporate income tax, property tax. In addition, the mode of applying the UPDF are not recognized by the taxpayers of VAT, except for the VAT payable on goods imported into the territory of the Russian Federation and other territories under its jurisdiction, as well as VAT, payable in accordance with Article 174.1 of the Code. At the same time under subparagraph 1 of paragraph 5 of Article 173 of the Code by non-taxpayers shall calculate the amount of tax payable to the budget, in the case of issuing an invoice to the buyer with the release of the amount of VAT. Thus, the mode of organization applying UPDF, putting an invoice with a dedicated VAT in it, condemns himself to pay the tax in the budget. Meanwhile, the sanctions under article 122 of the Code can be applied only to the taxpayers of VAT. That is, the mode of organization applying UPDF is not.

In cases where the tax authority in conducting a desk audit revealed no errors and other inconsistencies in declarations provided, reasons to reclaim an explanation of the taxpayer, as well as primary records he does not. This was pointed out FAS Moscow District in its decision of April 28, 2012 № A40-87461/11-99-409. The judges noted that the prohibition of such actions is contained in paragraph 7 of Article 88 of the Tax Code. This rule provides that during the desk audit the tax authority shall not be entitled to claim from the taxpayer for additional information and documents, unless otherwise provided in this Article, or if the submission of such documents, together with the tax declaration (calculation) is not provided by the Code. In this case, paragraph 3 of Article 88 of the Code states that if the test detected an error in the declaration (calculation) and (or) the contradictions in the said information, this shall be reported to the taxpayer of the requirement to report within five days, the necessary explanations and make the corrections within the prescribed period . Thus, if during the desk audit did not reveal any differences, and explain what the taxpayer did not have to. In the present case, the disputed claim did not contain references to the fact that it was billed in connection with the identification of any errors, contradictions or inconsistencies.

The cost of fuel are normalized. This conclusion follows from the Decision of the FAS of the West Siberian District on 05.04.2012, № A27-8757/2011, which confirmed that Ch. 25 of the Tax Code does not provide for regulation of fuel consumption. In addition, there is in it and references to some standards. However, the judgment was not in favor of the taxpayer. As follows from the case, society, guided by guidelines (enacted by decree of the Ministry of Transport March 14, 2008 № AM-23-p), calculated the rate of expenditure on fuel. However, the taxation of income taken into account and the "surplus." Documents submitted by the taxpayer, in particular, traffic logs (form number 3), acts to withdraw fuel, fuel consumption combined statements testified to the account in excess of the norms of "fuel" costs. In turn, the judge expressed the view that the disputed amount of expenditure can be taken into account when calculating income tax in full. However, they indicated that we should not forget the provisions of Article 252 of the Tax Code. This rule established the requirement to justify the economic costs incurred. Moreover, by virtue of Part 1 of Article 65 of the APC to present relevant evidence to the taxpayer himself. In this same case, no explanation from the taxpayer has not been received. Therefore, the decision on additional accrual of tax inspection, it was recognized as lawful.

If the employee is unable to return to work due to lack of train tickets at the box office, it must be reserved by documents attesting to the fact that they do not. In addition, it is necessary to prove that the other mode of transport in time to get to the place of service is also not possible. With these documents the employer will not be able to fire an employee for absenteeism under sub-"a" of paragraph 6 of Article 81 of the Labour Code. This was pointed out the Supreme Court in its decision of March 30, 2012 № 69-B12-1. The judges appealed to the provisions of the Resolution of the Plenum of the Sun March 17, 2004 № 2. In paragraphs 38 and 39 of this document states that in considering the case for reinstatement persons dismissed under paragraph 6 of Section 81 of the Code, the employer must present evidence showing that the employee has committed gross violations of one of the job duties specified in this point. It should be borne in mind that the list of gross violations of work duties, which gives grounds for termination of employment with the employee for this article is exhaustive and is not subject to broad interpretation. Moreover, dismissal on such grounds as truancy, in particular, can be made for absence from work without valid reason, ie, absence from work during the working day (shift), regardless of the length of the working day (shift). In the present case, the plaintiff applied for summary punishment of dismissal, according to the judges, it disproportionately committed a misdemeanor. The employee warned the employer about the problem and even sent to fax the statement to be granted two days off (one - at his own expense). The decision of the judges affected the same way and that before an employee is not subject to disciplinary liability. As a result, the employer who fired the employee regardless of the reasons that it failed to promptly begin to fulfill their job duties, it is necessary not only to restore it to work, but also to pay her salary for the period of enforced idleness.

The judgment of the Moscow District of FAS (case from 22.02.2012, № A41-23656/11) noted that the criteria for the validity of expenses that reduce taxable income, defined Art. 252 of the Tax Code, may serve as criteria for the validity of tax deductions for VAT, as the last set of Articles 171 and 172 of the Tax Code and not subject to the rules relating to income taxes. Therefore, if the taxpayer costs are not taken in income tax expense, the reason for the inability to use tax deductions for VAT no.

The judgment of the Moscow District of FAS (case from 07.03.2012, № A40-73963/11-140-317) with reference to paragraph 2 of Art. 173 of the Tax Code noted that the company may claim a tax return tax deductions, the right to have arisen in previous tax periods during the 3-year period.

The judgment of the Moscow District of FAS (case from 07.03.2012, № A40-63891/11-140-278) declared illegal the decision of the tax authority to prosecute, under Art. 126 of the Tax Code (failure to submit or late submission of documents), issued by the tax authority in conducting a desk audit of the VAT declaration. The findings of the court based on the following. In accordance with Art. 172 of the Tax Code Tax Deductions are made on the basis of invoices and documents proving the actual payment of the tax on goods imported into the customs territory of the Russian Federation, after the registration of goods (works, services) and in the presence of the primary documents. The Court examined that in the request for submission of documents is a list of the documents claimed to conduct site inspection, which imposes excessive burdens on the taxpayer for the collection, production, copying and presentation documents specified in the request for detailed explanations, analytical information, lease agreements with contractors may not be the subject of a desk tax audit. In violation of Section 1, Art. 32, § 7 of Art. 88 of the Tax Code by the tax authority requested to check the documents that the tax authority shall not be entitled to request.

The Decree of the Presidium of the Russian Federation of 28.02.2012, № 14139/11 noted that the activities of retail sale of goods, carried out in offices, is not subject to the special tax treatment as a single tax on imputed income.

The judgment of the Moscow District of FAS (case from 15.02.2012, № A41-17204/11) noted that the cost of the purchase of commodities that are implemented in the same tax period at a price below the purchase does not involve additional taxation. The rules contained in Art. 252 of the Tax Code does not permit contrary to the tax authority, and their arbitrary application, requiring the establishment of objective communication costs incurred by the taxpayer with the thrust of its activities for profit, with the burden of proof rests with the taxpayer unreasonable costs to the tax authorities. The arguments of the inspection is actually limited to assessing the economic efficiency of expenditure incurred by a taxpayer that is not provided by the tax legislation as a criterion for determining the tax base.

The judgment of the Moscow District of FAS (case from 15.02.2012, № A41-17204/11) noted that the date of recognition of costs as a percentage of loan agreements, the validity of which have more than one reporting period, determined regardless of the period of interest payment determined by the contractual terms, and the actual payment of accrued interest to the lender. The classification of non-operating expenses costs in the form of accrued interest on debt obligations of any kind, subject to compliance by the taxpayer following conditions: the validity of such costs, their documentary evidence and to conduct the implementation of activities aimed at generating income. In this case the right of the taxpayer to include non-operating expenses in the amount of accrued interest on the loan agreements to do with the actual payment of funds to the lender.

The Decree of the Presidium of the Russian Federation of 31.01.2012, № 12207/11 noted that the rules of the Tax Code does not prohibit conduct site inspection in respect of the period for which the earlier decision of a desk audit of VAT was refunded in the manner prescribed by Art. 176 of the Tax Code. From the system of interpretation of the provisions of Articles 88, 89 and 176 of the Tax Code that field tax audit provides greater powers to control the tax authority, expressed in the order of, conditions, and the volume of documents to be checked. Thus, the results of tax inspection are the result of analysis obtained in the course of her evidence, how to obtain and study which are of independent nature, different from the order desk of tax audits.

The judgment of the Moscow District of FAS (case from 14.02.2012, № A40-4474/10-118-68) noted that the premium for employee holidays, prizes for prizes in competitions, prize to the anniversary dates of employees, and other prizes provided by collective agreement, the provisions of the order of payment and financial incentives of employees, labor contracts with employees, enter the pay system, associated with industrial activity and employee performance of job duties, are encouraging and stimulating character, made ​​in favor of employees directly involved in the financial economic activities of the organization, aimed at increasing productivity and are regular in nature, and therefore meet the requirements established by section 1, Art. 252 of the Tax Code.

The judgment of the Moscow District of FAS (case from 09.02.2012, № A40-5156/11-90-21) noted that the date of actual receipt of income in the form of vacation pay shall be determined as of the date of payment of income, including the transfer of income account taxpayers in the banks. Therefore, in accordance with paragraph 4 of Art. 226 of the Tax Code, income tax withholding amounts to the holiday pay should be made by the employer if the actual payment of funds to the taxpayer, including the transfer of income to the taxpayer by the bank.

The judgment of the Moscow District of FAS (case from 09.02.2012, № A40-131253/10-90-746) noted that tax legislation does not contain a list of documents that must be compulsorily submitted by the taxpayer to the tax authority in order to confirm the validity application of the special rate of accelerated depreciation on fixed assets, operating in an aggressive process media. In order to establish grounds proving the legality of the use of accelerated depreciation rate taxpayer, you must examine the documents confirming the operation of the plant and equipment in contact with an aggressive technological environment, which can serve as a source of emergency.

The Decree of the Presidium of the Russian Federation of 14.02.2012, № 12093/11, with reference to paragraphs. 3, No. 1, Art. 264 of the Tax Code and art. 1008 of the Civil Code indicated that the recognition of expenditure on completed works agent (also rendered outside of Russia) act of acceptance is not enough. So the proper proof, in view of § 1 of Art. 252 of the Tax Code, may be the agent of record. During the execution of the agency agreement the agent is obliged to submit reports to the principal in the manner and within the time specified in the contract, in the absence of appropriate conditions in the agreement submitted to the agent reports as enforcement of a contract or upon termination of the contract.

The judgment of the Moscow District of FAS (case from 09.02.2012, № A40-131253/10-90-746) noted that tax legislation does not contain a list of documents that must be compulsorily submitted by the taxpayer to the tax authority in order to confirm the validity application of the special rate of accelerated depreciation on fixed assets, operating in an aggressive process media. In order to establish grounds proving the legality of the use of accelerated depreciation rate taxpayer, you must examine the documents confirming the operation of the plant and equipment in contact with an aggressive technological environment, which can serve as a source of emergency.

The judgment of the FAS of the Ural District in its decision of 06.03.2012, № F09-810/12 concluded that the certificate on the state budget settlements should not be shown to the sum owed by the taxpayer, the right to collect that fiscal authorities have already lost. Opinion of the Judges based on the fact that, according to subparagraph 10 of paragraph 1 of Article 32 of the Tax Code, the tax authorities are obliged to submit to the taxpayer, fee payer or tax agent, upon request, information about the state of his accounts with the budget. Form of certificate of execution of a taxpayer obligation to pay taxes, insurance premiums, fines and tax penalties, together with the methodological guidelines for its use was approved by order of the Federal Tax Service of May 23, 2005 @ MM-3-19/206 number. This document does not provide an indication of the Help information about the loss of the possibility of collecting the outstanding debt of the taxpayer to the budget. However, despite this, the information contained in the certificate must match the real duties of the taxpayer to pay taxes, fees, fines and penalties, that is to be credible. In addition, the arbitrators concluded that the marking of incomplete data in the certificate of arrears of taxes, fees, fines and penalties, outstanding taxpayer, it affects the right to accurate information necessary for the discharge of their legitimate rights and interests, including those in the business, and (or) other economic activities.

The judgment of the Moscow District of FAS (case from 13.12.2011, № A41-36345/10) with reference to paragraph 3 of Art. 170 of the Tax Code noted that since the retirement of inventory (finished goods) as a result of lack, loss, damage, fire does not change the original purpose of their acquisition, the tax authorities have no legal grounds to demand the restoration of previously accepted for deduction of VAT for loss of wealth, and therefore to conclude that violations of rules by the taxpayer on the application of the tax deduction.

The judgment of the Moscow District of FAS case from 05.12.2011, № A40-28922/11-75-118) with reference to the paragraphs. 3, No. 7, Art. 272 of the Tax Code stated that the tax base is calculated on the basis of the tax period only on the basis of primary documents. In cases where the costs of supporting documents are received in the next period, the taxpayer includes the cost of expenses only to the period in which the documents were obtained, until the original documents the taxpayer unable to take into account the expenses and deductions.

The judgment of the Federal Antimonopoly Service of the Far Eastern District 21.03.2012, № F03-492/2012 noted, fiscal authorities have removed the alleged reasonable costs of public procurement of goods and the amount of VAT deductions. Fiscal authorities have argued that the cost of the disputed goods artificially inflated by including in the chain of suppliers firms "ephemeral." These companies have been established formally, without the purpose of conducting business. They do not have actual independence, not of tax returns or make the minimum payments, recorded at the mass registration, etc. One such argument was that when testing revealed that it was out of his office to manage the taxpayer's actual current accounts firms ephemeral (as determined by IP-address). That was enough to judge, guided by paragraph 10 of Resolution of the Plenum of the Supreme October 12, 2006 № 53, the company recognized a tax benefit obtained unfounded.

The Decree of the Presidium of the Russian Federation of 31.01.2012, № 12987/11, with reference to paragraph 2 of Art. 171 of the Tax Code stated that the public rightfully claimed to deduct the VAT paid by the contractors in the cost of work on the elimination of fixed assets, while the inspection there were no grounds for refusal of the application of tax deductions.

The Decree of the Presidium of the Russian Federation of 17.01.2012, № 10077/11 noted that the calculation of both the land and other taxes accounted for as an expense in excessive amount (including non-use benefits as a result of a release) can not qualify as error in the calculation of income tax. The conclusion is that the company discovered the error (distortion) in the calculation of land tax to be fixed in accordance with paragraph 1 of Art. 54 of the Tax Code by making the appropriate changes for the period in which the error (distortion) are admitted, is illegal. Accounting as an expense initially calculated the amount of land tax, the appropriate provisions of § § 252 and 1, No. 1, Art. 264 NC, can not qualify as an error. Adjustment of tax base for land tax should be considered as a new factor, which indicates the need to address over-calculated the amount of land tax in the period specified in the correction of non-operating income, which list is by virtue of Art. 250 of the Tax Code is not exhaustive.

Details of the payment order on the invoice to the down payment. The invoice, drawn up on advances, there is no number of the payment order. This means that a violation of paragraph 5.1 of Article 169 of the Tax Code, is obvious. Consequently, it is impossible to apply the deduction of VAT? However, this conclusion did not agree to the arbitrators in the judgment of the Federal Antimonopoly Service of the Moscow District 13.03.2012, № A40-49801/11-91-213. The argument of the tax authority that the invoice, issued in violation of the requirements of paragraph 5.1 of Article 169 of the Tax Code, may serve as a basis for the tax deduction, the courts declared unlawful. The arbitrators pointed out that the denial of tax deduction for the VAT to the seller of goods (works, services), they calculated the amounts of payment, partial payment received for future delivery of goods, this provision is not provided. The court found that during the desk audit company submitted invoices, statements of cash received and the products shipped, a certificate on the amounts of VAT, calculated from the amount of prepayment, etc. The data from these documents are quite allow us to compare the period of accrual of the tax with the period of shipment and appropriate amounts of tax to deduct. A reference to the failure of the inspection payment documents rejected by the courts as untenable, not based on the provisions of Article 172 of the Tax Code.

The judgment of the Moscow District of FAS (case from 09.11.2011, № A40-11990/11-115-39) on the application of the coefficient of accelerated depreciation (Sec. 7, Art. 259 of the Tax Code) noted the following. Under the influence of aggressive environment means the totality of natural and (or) man-made factors affecting plant and equipment. Under the influence of aggressive technological environment refers to finding the fixed assets in contact with the explosive, flammable, toxic or other aggressive process environments. Thus, in the first case to establish the fact of the influence of aggressive environment for fixed assets, that is the primary means of attack for the negative consequences resulting from such contact. In the second, it suffices to establish only the fact of the primary means of contact with an aggressive technological environment, which creates a risk of accidents. The taxpayer has a right to determine the list of objects that are related to the technological conditions of use are subject to the conditions stipulated by § 7 of Art. 259 of the Tax Code, based on the technological features of the functioning and operation of facilities. The use of accelerated depreciation rate achieved in the society of the asset (the garage), in contact with the explosive, flammable, toxic or other aggressive technological environment, which may be the cause (source) to initiate an emergency. Society presented adequate evidence to support the exploitation of the garage building in certain hazardous industrial facilities, which is the basis for the application of a special depreciation rate.

The judgment of the Moscow District of FAS (case from 16.11.2011, № A40-1037/11-99-5) noted that based on the provisions of paragraphs. 2, § 1 of Art. 265 of the Tax Code to include non-operating expenses is reasonable, that is aimed at generating revenue costs of implementing the activities. Consequently, despite the fact that the disputed costs in the form of taxpayer (bank loans at higher interest rates and the subsequent issuance of loans interdependent person at a lower rate) correspond described in this norm of the Tax Code, they do not meet the criterion of economic viability, because it does not aim at getting income. Reducing the tax obligations due to the reduction of the tax base in the amount of expenses in accordance with paragraph 1 of the Decree of the Plenum of the RF of 12.10.2006, the number 53 is a tax benefit, which is estimated to obtain the validity of the court in each case.

The judgment of the Moscow District of FAS (case from 08.11.2011, № A40-560/11-99-3) noted that the taxpayer is entitled to VAT charged suppliers of promotional products, to deduct the full amount on the basis of Articles 171 and 172 of the Tax Code, as the transmission of advertising materials, regardless of recipients qualifies as a transfer of goods for their own needs, which is not subject to taxation in accordance with Art. 146 of the Tax Code. By virtue of paragraphs 2, paragraph 1 of Art. 146 of the Tax Code, transfer of goods for their own use subject to VAT form is only if the cost of their acquisition are not included in the taxation of profits. The cost of promotional materials taken into account by the taxpayer in expenses taken into account in the taxation of profits, in accordance with Art. 264 of the Tax Code. If you are distributing promotional materials, the cost of which is taken into account as an expense in the taxation of profits, there are no grounds for the application of paragraphs. 25 § 3 of Art. 149 of the Tax Code (tax-exempt transfer of promotional goods (works, services), the cost of acquisition (creation) which units do not exceed 100 rubles) and paragraph 4 of Article 9 para. 170 of the Tax Code, which allows the presentation to deduct VAT in cases where a particular tax period, the share of total expenditure on the acquisition, production and (or) sale of goods (works, services), property rights, transactions of sale which are not subject to taxation not in exceed 5 percent of the total amount of the total cost of the acquisition, production and (or) sale of goods (works, services), property rights. As the promotional material for the purposes of the society acquired the core activities of trade-productions, the implementation of which is subject to VAT, the conditions of society obtaining VAT deductions provided for in paragraph 2 of Art. 171 of the Tax Code.

The judgment of the Moscow District of FAS (case from 27.10.2011, № A40-122187/10-127-692) with reference to Art. 173 of the Tax Code stated that the fact that the presentation to the deduction of VAT outside the tax period in which there was such a right, not a ground for refusal of tax authorities in such a deduction. Presentation of the residue at a later period did not lead to the formation of the debt before the budget.

The judgment of the Moscow District of FAS (case on 14.10.2011, № A40-151888/10-129-621) with reference to paragraph 1 of Art. 39 Tax Code, noted that the receipt of the deposit contract on account of rent payments - the return of payment - not an operation for the sale of goods (works, services) and subject to VAT. Security deposit of its legal nature, acts as a performance guarantee tenant obligations under the contract and its payment is not related to payment for services, so it should not be included in the VAT tax base.

The Decree of the Presidium of the Russian Federation of 27.09.2011, № 4134/11 noted that the taxpayer is not entitled to apply the tax deduction (Sec. 1, Art. 172 of the Tax Code) of invoices, decorated with facsimile signature, as paragraph 5 of Article . 169 of the Tax Code provides that an invoice must contain the personal signature of the authorized persons.

The judgment of the Moscow District of FAS (case from 17.10.2011, № A40-141786/10-115-608) noted that in reality produced by the parties execution of transactions, the fact that these transactions and documents proving their execution, on behalf of contracting company issued over the signatures of persons who deny their signature and that they have the authority of the head (with reference to the unreliability of information about registering him as a leader in the unified state register of legal persons), by itself, is not unconditional and sufficient evidence of the receiving society unjustified tax benefit. Organization-registered contractors of the taxpayer in the prescribed manner, as evidenced by extracts from the register, at the time the judicial act on the case can not be excluded from the register, the registration of these organizations are not recognized by the court as invalid. In addition, the taxpayer raised the commodity-material assets capitalized and placed on record in the appropriate accounts of accounting. The findings are consistent with the court the legal position of the RF set forth in the Resolution of the Plenum of the 12.10.2006, № 53 "On arbitration courts assessing the validity of the tax benefits received by the taxpayer," Decisions of the Presidium of the 09.03.2010, № 15 574/09 and from 20.04.2010 , the number 18 162/09.

Chapter 26.3 of the Tax Code does not provide a reduction in order to calculate the area of ​​retail space UTII to the area used to store goods. This was pointed out FAS Moscow District in its decision of February 10, 2012 in case number A41-31817/10.

The essence of the dispute is

. An individual entrepreneur rented a retail space in shopping center with total area of ​​10 square meters. meters. And as part of the area has been involved as a warehouse, an entrepreneur, "threw" her from the calculation of the amount UTII. In turn, fiscals have indicated that the provisions of Chapter 26.3 of the Tax Code of the selection area, which itself is customer service, provided only with respect to the objects stationary trading network, with sales areas. Used as an entrepreneur trading place for such facilities does not apply. Accordingly, the employer improperly determined the basic profitability, for which he was assessed additional taxes and penalties. This time the judge is fully shared the position of tax authorities.

absence of commodity and commodity-transport documents required number of details does not allow them to relate these to the attention of other documents and evidence of the unreliability and inconsistency of information. And this may be an additional proof that the controversial delivery did not commit, which will inevitably lead to a denial of the application of the deduction of VAT. This conclusion follows from the definition of BAC to February 7, 2012 № VAS-835/12 in case number A74-3314/2010.

As follows from the case, the tax authority audit concluded that the absence of real economic transactions between the taxpayer and his four partners. Two of them were excluded from the register, the rest were unclear to the management team. And with all these partners, the society did not have the necessary conditions for economic activity (absent staff, fixed assets, production assets, warehouses, vehicles).

In turn, the judge evaluated the evidence in the case file together in their mutual connection, agreed with the inspectors, the transactions were fictitious. Also for the arbitrators argument was the fact that the original documents did not contain all the necessary details, and therefore, they can not be regarded as proof of the reality of supply. Therefore, in the opinion of the arbitrators, or society may not consider the disputed costs in the taxation of profits, or to apply for VAT deduction.

In the event that a dispute with an employee on the legality of his dismissal came before the court and the employer is willing to voluntarily restore the employee at work, in which case the cancellation of the order of dismissal does not help to avoid a trial. The same is reflected in the determination of the Supreme Court on January 13, 2012 № 74-B11-11.

As follows from the case, the citizen was fired for absenteeism under subparagraph "a" of paragraph 6 of Article 81 of the Labour Code. However, he found that the dismissal was carried out unlawfully and in breach of the order. The trial court sided with him, noting that the defendant in accordance with Article 56 of the Code of Civil Procedure is not proven that the plaintiff committed a disciplinary offense in the form of absenteeism. The organization decided to cancel the order for dismissal. "The victim" was reinstated in his job, and he was even paid the salary for the period of enforced idleness.

In such a situation, in theory, and the subject of the dispute is absent, and hence the claim for reinstatement can not be satisfied. However, the Supreme Court noted the following points, which missed the lower courts. Once the employer has issued an order to dismiss the employee, the employment relationship between the parties to an employment contract was terminated. In this regard, the employer had no right to perform legal actions arising from the terminated employment contract unilaterally, without the prior consent of the employee to restore these relations. This means that the actions of the employer to unilaterally reducing the employment relationship with an employee by abolishing the order of dismissal, legal do not matter. Consequently, the grounds for denial of the claim, they can not be found.

Court in this case, the employee is obliged to consider the claims on the merits and render a decision, which shall be assessed the legality of the employer at the time of termination of employment. In such cases, litigation can be avoided only if the employee agrees with the actions of the employer, which reversed its decision to dismiss. However, in the present case, this did not happen - the plaintiff refused to meet with an order to cancel his dismissal and was determined to defend their interests in court.

Social Insurance Fund may not review a decision of the employer on behalf of the Commission on Recognition of social insurance valid reason of absence of the employee at the check-up. And therefore, refuse to accept to offset employee paid "sick" the Fund shall not be entitled. To such conclusion the Presidium of the proceedings of the Arbitral Tribunal A45-18204/2010 number of Novosibirsk region.

In determining you from December 9, 2012 № VAS-14379/11 stated that this issue is currently no uniformity in arbitration practice. Some courts, as was the case under consideration, find that the FSS has the right to disagree with the conclusions of the commission and the employer to reduce the amount of the benefit. Others, however, noted that the definition of good cause violations of hospital treatment or to appear at the appointed time on the medical examination and, therefore, there are grounds to reduce the size of the temporary disability benefits, the administration is the responsibility of the employer. Therefore, the Fund on its own initiative may not review a decision of a special commission created by the company in accordance with the law.

The fact that the content of paragraph 2 of Part 1 of Article 8 of the Law № 255-FZ, it follows that the absence of the insured person's medical examination serves as a basis for reducing the amount of benefit only if the reasons for this absence are not respectful. However, a note in the "sick" about the violation of the regime itself is not evidence of absence of good cause, "truancy».

Meanwhile, Article 11 of the FSS, approved by the Government on February 12, 1994 № 101, provides that in order to ensure control over the correct calculation and timely payment of sotsposoby enterprises regardless of their ownership by labor collectives are formed Commission on Social Security . Order of the FSS on July 15, 1994 № 556a approved Model Regulations of the Commission (the Commissioner) for social insurance. According to paragraph 2.2 of this Regulation Commission, including, checks the correctness of the administration of the company the right to benefits, the validity of deprivation or denial of grant. And by virtue of paragraph 5.1 and 5.2 of supervision of the Commission carries out Department of Social Insurance Fund and it is possible to appeal its decision. However, if the employee did not complain, then, by his own initiative, the Foundation re-evaluate the work of the commission could not. With these arguments and agreed to the Presidium.

Information Letter of the Presidium of the Russian Federation of 17.11.2011 № 148 resolution brought an overview of the practice of courts of arbitration cases involving the application of certain provisions of chapter 30 of the Tax Code, which, among other things, noted the following:

• in the case of acquisition of the ownership of real property the purchaser is the payer of property tax regardless of the state registration of transfer of ownership, since the effect of the accounting legislation such registration is not listed among the prerequisites for consideration of the items on the balance sheet as fixed assets;
• if a particular property is required to bring the state of readiness and capabilities of exploitation, such property may be considered as the primary means and recognized subject to taxation only after the necessary work and forming in the prescribed manner, taking into account the initial cost of the expenditure;
• person who by virtue of Article 373 of the Tax Code, the payer of property tax, is required to submit a tax declaration and tax calculation based on advance payments in the case where it enjoys tax privileges named in this connection does not pay it in the budget.

The tax on personal income, withholding of vacation time, should be sent to the budget on the day of payment to the employee. To such conclusion the Presidium of the proceedings of the Arbitral Tribunal A68-14429/2009 number Tula region. The organization, which fiscal authorities assessed additional penalties for late transfer of personal income tax applied to income in the form of holiday pay provisions of paragraph 2 of Article 223 of the Tax Code. According to this standard date of actual receipt of income from wages recognized by the last day of the month for which the employee has accrued a salary for their job duties. For its part, the inspectors said that under subparagraph a of paragraph 1 of Article 223 of the Code to withhold and remit tax to the budget must be on the day of holiday pay to the employee. The Supreme Arbitration Court in its decision of November 11, 2011 № VAS-11709/11 pointed out that the vacation pay, despite the fact that it is linked to an employment relationship with the taxpayer's tax agent has a different (other than wages)

The tax, which is to address the inspection was wrongly refunded to the taxpayer, must be returned to the budget. To such conclusion the Presidium of the proceedings of the Arbitral Tribunal A33-10298/2010 number of Krasnoyarsk region. As a result of a desk audit tax authorities issued a decision on compensation to the public more than 2 million rubles in the form of VAT. However, later in the field audit the auditors have found that the tax was improperly compensated, because deductions were claimed on the invoices, exposed for services subject to tax at a rate of 0 percent. The Company performed the required tax, the tax is returned to the budget. But then, finding that her rights were violated, went to court. The courts of three instances supported by the taxpayer. The arbitrators came from the fact that the Tax Code contains no rules that allow tax authorities to offer to pay compensation to the budget before the tax amount. However, the Supreme Arbitration Court in its decision of November 22, 2011 № 12207/11 have the following. The circumstances surrounding the receipt of the society of illegal VAT reimbursement, directly related to the underestimation of the base of this tax and are due to improper use of tax deductions. The Presidium agreed that if the taxpayer did not initially have the right to deduct, that his rights could not be violated.

The fact that the equipment used in manufacturing, fiscal authorities have to prove it. It is quite possible that the disputed account object in the OS and, therefore, and turn it into a base for property tax, it is premature. For example, Decree of the North-West district of December 21, 2011 № A21-1190/2011. In the present case, fiscal authorities found that the company has commissioned a paper machine. This is evidenced, in particular, the fact that she had made ​​some kind of a party paper. In turn, the arbitrators came to a different conclusion. Production start-up work involves the launch of this vehicle and issue a certain number of papers, but the release of the equipment has not reached its design capacity, and much of the paper is produced by marriage.

When combining the common system of taxation and the "vmenenki" the taxpayer is required to keep separate records of "input" VAT. In this case the fact of the reality of such a "division" of the tax should be documented, or at all possible to remain without any deduction. This conclusion follows from the definition of BAC to December 13, 2011 № VAS-15928/11. As follows from the case, in confirmation of the separate accounting of the taxpayer submitted an order book of income and expenditures and business transactions, book purchases and sales during the relevant time, a register of invoices. Paragraphs 5, 6, of the order was provided to receive and debit goods (works, services) at a rate of 100 percent of their quantitative income in accordance with the general regime of taxation, transfer to the retail trade, taxable UTII, the goods taken and recorded in accordance with the general taxation regime but not more than 5 percent of their revenue quantitative. The arbitrators pointed out that the established order of the entrepreneur of separate accounting must be confirmed by the reality of his conduct and compliance. The case file does not contain evidence of the transfer of goods to the retail facilities in the amount of 5 percent of the established order. In addition, the court conducted the analysis proceeds from the sale of goods transactions are not subject to VAT, the total implementation of all the evidence that the share of proceeds from the sale of goods at retail is 36.1 percent. Thus, the arbitrators concluded, merchant documents presented do not confirm a fact of separate accounting, as well as the fact of the reality of such records. Accordingly, it remains unproven and have the right to deduct VAT in the claimed amount.

The fact of underreporting of the tax base for VAT in the amount of advances received (payment) must be determined on the basis of source documents supporting the circumstances entailing the obligation of the taxpayer to include these amounts in the tax base. The decision of the FAS of the Volga Region of December 22, 2011 № A12-5405/2011 judge pointed out that the admissible evidence of society's responsibilities to include in the base of the VAT advances can serve only payment documents (cash registers cashier's checks, money orders). Amiss, and other accounting documents confirming the receipt of funds in the treasury of the taxpayer (cash book, bank statements on your checking account). But the presence of "advance" of invoices - and only - in this case is not enough.

Tax not entitled to refuse to register a company at the home address of its sole shareholder, who is "in combination" is the CEO of the society. This conclusion came FAS Moscow District in its decision of January 18, 2012 № A41-8923/11. The arbitrators noted that the legislation defines as the location of his place of legal entity state registration. In turn, the registration is done at the location specified by the founders in a statement on the state registration of the permanent executive body. The use of premises for the state registration of the company has not said that the owner of the place in his apartment, and the company will be just in it to do business. That is, the place of state registration, and may well not coincide with the actual layout of the property complex and industrial premises. Consequently, the use of premises for the state registration of the society does not violate the rights and lawful interests of other citizens, as well as requirements to be satisfied in the living room. At the same time part 2 of article 17 of the Housing Code allows the use of premises for the professional activities of citizens, if it does not violate the rights and interests of others.

In its Decision of the Constitutional Court on 20.10.2011, № 1472-O pointed out that under the provisions of Art. 24 Tax Code, tax agents are persons who are responsible to calculate, withhold and remit tax at the tax to the budget of the Russian Federation (paragraph 1), for nonperformance or improper performance of his duties the tax agent is liable in accordance with Russian legislation (paragraph 5). Failure to comply with the tax agent assigned duties of the tax forms a separate offense and carries a fine (Article 123 of the Tax Code). From this norm should be the responsibility of tax agents provided for failure of public and legal responsibilities for deduction and (or) transfer (incomplete transfer) to the budget of the tax.

The judgment of the Constitutional Court on 06.12.2011, the number 26-P noted that providing for those entities that have ceased their activities (legal entities recognized as invalid), Simplified - non-judicial - the order of exclusion from the register related provisions of Article 21.1 and to paragraph 7 Article 22 of the Federal Law "On State Registration of Legal Entities and Individual Entrepreneurs" set two conditions under which the entity recognizes virtually ceased its activities - the failure in the last twelve months preceding the time of the adoption by the registering authority of the decision, reporting documents provided by the law the Russian Federation on taxes and fees, and the failure of operations for at least one bank account. It should be borne in mind that the criteria for recognition of the legal entity is actually terminated its activities (inactive entity) are fully applicable to commercial organizations that can not be reasonably likely to indicate that the actual termination of a non-profit organization of their activities. Accordingly, the failure to non-profit organization in the last twelve months of operations for at least one bank account basis for its recognition is not inoperative. Failure to submit the same in the last twelve months, tax reporting documents is the basis for the possible involvement of religious organizations to the tax liability, but can not be considered sufficient for the termination of its activities, despite the fact that due to the current legislation the tax authorities have no right to determine whether the cease-profit organization is actually carry out their statutory activities.

The judgment of the Moscow District of FAS (case from 14.10.2011, № A40-2532/11-75-12) noted that by virtue of Section 7, Art. 78 Tax Code, a statement of credit or refund of overpaid tax may be filed within three years from the date of payment of that amount. Thus, this norm of the Tax Code does not prevent a citizen (and any other person) in case of missing three-year period of application to the tax authorities to apply to the court for the return of budgetary overpayment by way of civil proceedings or arbitration, in which case the general rules of calculation statute of limitations - the date when the person knew or should have known about the violation of their right (Determination of the Constitutional Court of 21.06.2001 № 173-O). In the event that the taxpayer became aware of an existing overpayment only from the act of checking the calculations, said the return of overpaid amounts to the tax authority, and was denied, the taxpayer may apply to the court on the return or offset these amounts (paragraph 22 of Resolution of the Plenum of Supreme Russian Federation of 28.02.2001 № 5), because the statute of limitations in this case is terminated.

The Decree of the Moscow District FAS (case of 17.10.2011, № A 41-14106/10) noted that the counterparty to the transaction that gave the procedure of Art. 93 of the Tax Code testimony of non-participation in the organization and not signing them original documents, is not proof of receipt by the taxpayer unjustified tax benefit. The tax authority has to prove the absence of real economic transactions with this counterparty, reflecting this in the decision to call the taxpayer to liability. In the absence of evidence is not making business transactions in connection with which the claimed right to a tax deduction or a reduction in taxable income, the conclusion that the taxpayer knew or should have known about the unreliability (inconsistency) of information can be made by the court in the evaluation of the circumstances set associated with the conclusion and execution of the contract (including the grounds on which the taxpayer was selected corresponding to the counterparty), and the other circumstances set forth in the Decree of the Plenum of the RF of 12.10.2006, № 53 «On arbitration courts assessing the validity of obtaining a taxpayer tax benefits. »

The Decree of the Moscow District FAS (case of 14.10.2011, № A40-2532/11-75-12) noted that by virtue of Section 7, Art. 78 Tax Code, a statement of credit or refund of overpaid tax may be filed within three years from the date of payment of that amount. Thus, this norm of the Tax Code does not prevent a citizen (and any other person) in case of missing three-year period of application to the tax authorities to apply to the court for the return of budget overpayment through civil or arbitration proceedings, in which case the general rules of calculation statute of limitations - the day when the person knew or should have known of the violation of his right (of the Constitutional Court of Russian Federation of 21.06.2001 № 173-O). In that case, if the taxpayer became aware of an existing overpayment only from the act of checking the calculations, said the return of overpaid amounts to the tax authority and was denied, the taxpayer may apply to court for refund or offset such amounts (paragraph 22 of Resolution Plenum RF from 28.02.2001 № 5), because the statute of limitations in this case is terminated.

The Decree of the Moscow District FAS (case of 13.09.2011, № A40-118755/09-108-879) noted that the procedure for recognizing expenses for accrual provided that the costs to be taken for tax purposes shall be established in the reporting (tax period), to which they relate, regardless of when actual payment of money and (or) other forms of payment (Sec. 1, Art. 272 ​​of the Tax Code). Consequently, called the norm of the Tax Code does not give the taxpayer the right to randomly select the tax period in which the composition of non-operating expenses include bad to recover the debt. In accordance with Articles 8 and 12 of the Federal Law of 21.11.1996 № 129-FZ "On accounting" of the organization prior to the preparation of annual financial statements to ensure the reliability of accounting data and financial statements are required to conduct an inventory of assets and liabilities, in which are verified and documented appropriately their availability, status and evaluation. The inventory shall be timely recording in the accounts without any omissions and withdrawals. A similar requirement for the timing of the inventory provided by Section 27 of the Regulation on Bookkeeping and Accounting (Approved by Order of the Russian Ministry of Finance of 29.07.1998, № 34n). In view of § 5.5. Methodical instructions on the inventory of assets and liabilities (approved by Order of the Russian Ministry of Finance of 13.06.1995 № 49) The results of the inventory should be reflected in the accounting and reporting of the month in which the inventory was completed, and on the annual inventory - in the annual financial report . Thus, the expiration of the statute of limitations on outstanding liabilities of counterparties taxpayer should learn during the annual inventory of assets and liabilities. Violation of this legal regulation of the taxpayer, was summed up in dereliction of duty for inventory commitments statutory period and the publication of the relevant order in the later period can not be regarded as a reason for not including accounts receivable with expired legal term in the non-operating expense in the period in which the statute of limitations had expired. The provisions of paragraphs. 2, § 2 of Art. 265, Art. 266 of the Tax Code in conjunction with the above regulations governing accounting, include the obligation of the taxpayer to take into account the amount of the obligations of debtors, for which the statute of limitations has expired, in the non-operating expenses in a given tax period (the year of expiration of the period), rather than randomly selected the taxpayer.

The Decree of the Moscow District FAS (case of 04.10.2011, № A40-3639/11-20-16) noted that the payment of customs fees for customs clearance of goods by filing a temporary customs declaration is paying all the actions of customs authorities for customs clearance of goods. Therefore, these charges are included in costs by AP. 1, § 7, Art. 272 of the Tax Code.

The Decree of the Moscow District FAS (case of 16.09.2011, № A40-130812/10-127-755) with reference to paragraph 1 of Art. 258 of the Tax Code and Government Decree of 01.01.2002 № 1 "On the Classification of ..." pointed out that if the useful life of engineering systems within the building structurally determined at the date of commissioning of these facilities depreciable property, significantly different from the useful life of the building, the taxpayer was entitled to take them to the accounting and tax accounting as separate facilities operating with such a cushioning them to different groups.

The Decree of the Moscow District FAS (case of 13.09.2011, № A40-127287/10-89-913) noted that if the counterparty to the transaction is illegal, in violation of Art. 164 of the Tax Code, put an invoice with the VAT rate of 18%, then such amounts should be considered unjust enrichment by virtue of Articles 1102 and 1103 of the Civil Code and are subject to return of the organization. According to the legal position set out in the Decree of the Presidium of the Russian Federation of 20.12.2005 № 9263/05 and Determination of the Constitutional Court of 15.05.2007 № 372-O-P, the taxpayer is not entitled at his discretion, to change the tax legislation the tax rate . A zero rate of VAT is an indispensable element of taxation. The current legislation does not provide legal ability to change the tax rate established by agreement between the parties. The fact that the contractor has paid the specified amount of VAT to the budget is to rise to a refined his tax return in the manner prescribed the Tax Code, and the relationship to the return of unjustly acquired organization does not have.

The Decree of the Moscow District FAS (case of 14.09.2011, № A40-123143/10-116-503) noted that the lack of commercial invoices TORG-12, which claimed deductions for VAT, stamp allotment of goods, job titles, decrypt the signature and the date is not an obstacle to the adoption of the VAT deducted, as the Tax Code does not provide requirements for completing the commercial invoice.

The Decree of the Moscow District FAS (case of 12.09.2011, № A41-36076/10) noted that if the taxpayer voluntarily listed the amount of tax additionally charged him based on the decision of the tax authority, and subsequently by a court decision of tax authority recognized illegal and the money returned, the taxpayer's claim for payment of interest on the amount of tax not subject to the satisfaction.

Resolution of the Federal District of Moscow (the case of 25.08.2011, № A40-92695/10-70-447) with reference to paragraph 3 of Art. 61, § 4 of Art. 90 of the Civil Code, § §. 3 and 5, Art. 20 Art. Federal Law of 08.02.1998 № 14-FZ "On Limited Liability Company" denied the claims of the tax authority of the compulsory liquidation of company. In support of the claim the tax authority indicates that the results of this analysis the balance sheets of the company for the disputed period and calculation of net assets of the past have had negative values​​. Court rejected the claim is legitimate because it does not prove the existence of gross violations of the society of the current legislation, bearing an inherent character, and the decrease of the net assets do not constitute grounds for immediate liquidation.

Resolution of the Federal District of Moscow the case of 29.07.2011, № A40-94667/10-13-439) is recognized as a legitimate inclusion of costs in determining the tax base for income tax expenses for renting an apartment foreign staff, as required by the provisions of subsection 5, Art. 16 of the Federal Law of 25.07.2002 № 115-FZ "On the Legal Status of Aliens" and nn. "D" of paragraph 3 of the representation guarantees ... (approved by RF Government Decree of 24.03.2003, № 167), whereby the responsibility for housing foreign workers in accordance with Russian law on legal status of foreign citizens lies with the employer. At the same time, these payments are not taxable personal income tax by virtue of paragraph 3 of Art. 217 of the Tax Code.

The Decree of the Moscow District FAS of 26.07.2011, № A40-38377/10-20-262 with reference to paragraph 6 of Art. 168 and n. 7, Art. 171 of the Tax Code noted that the organization has the right to apply VAT deduction from the cost of tickets purchased by seconded employees, notwithstanding the fact that the amount of VAT on the ticket has not been listed separately. The organization has the right to select it by calculation, and take a tax deduction.

The Decree of the Moscow District FAS (case of 11.07.2011, № A40-119193/10-116-455) noted that an incorrect reference number CCD contractor on the invoice, as well as its absence in the electronic database of customs authorities did not prevent the application of tax deductions for VAT. The taxpayer-purchaser under the applicable law does not bear the burden of negative legal consequences for failing the information specified by the supplier.

Resolution of the Federal Antimonopoly Service of the Moscow District of 08.07.2011, № A40-78880/10-76-405 declared illegal the decision of the tax authority in the application of paragraph 2 of Art. 269 ​​of the Tax Code (the right to include in the expenses of only a portion of accrued interest, because the organization has outstanding debts on debts owed to the foreign company, which owns 100% of the share capital of the company, while the value of liabilities of the company on a loan for more than three times its equity capital) . Court rightly found that the taxpayer is entitled to include in the expenses of the entire amount of accrued interest, as in this case, the rules of Art. 7 of the Tax Code, and the treaty of the Russian Federation and the Republic of Cyprus establishes other rules laid down in Art. 24 of the Agreement on Avoidance of Double Taxation with respect to taxes on income and capital from 05.12.1998.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 08.07.2011, № A40-100870/10-4-500) with reference to Articles 171 and 172 of Tax Code, noted that the taxpayer is entitled to a deduction to the amount of VAT paid in the cost of goods (works, services) purchased for the restoration of property, including in the case of a taxpayer to indemnity for the damage said property. Chapter 21 of the Tax Code contains no provision prohibiting the adoption of VAT amounts to a deduction if the insurance company agreed to pay the insurance indemnity, which includes the cost of repairs to VAT.

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 06.07.2011, № A41-8534/10) is recognized as valid the assignment of the costs of depreciation of, donated fixed assets, as the property is transferred by the taxpayer to the counterparty for the execution of works contracts. Norms of Paragraph 3, Article. 256 and n. 2, Art. 322 in this case, the application can not be.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 30.06.2011, № A40-99462/10-114-530) noted that, according to subsection 4, section 4 of Art 45 of the Tax Code only required props in the payment order, without which the obligation to pay tax is not considered fulfilled — the account number of the Federal Treasury and the name of the beneficiary's bank, in case of improper instructions whose funds are not received in the budget system of Russia. Requirements of the correctness of instructions OKATO this article does not provide.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 30.06.2011, № A40-99462/10-114-530) noted that the rules of Articles 169, 171 and 172 of the Tax Code contains an exhaustive list of the conditions under which the taxpayer has the right to use tax deductions: the presence of invoices for purchased goods (works, services), prepared in accordance with the requirements of Art. 169 NKF Russian Federation and the adoption of goods (works, services) to integrate, use of goods (works, services) in taxable transactions, the presence of the primary documents. In the event that a taxpayer who is a special tax regime, put the primary documents from VAT, it is on him, by virtue of claims 1 to Section 5, Art. 173 of the Tax Code, an obligation to pay to the budget presentation of the invoice amount of the tax and the buyer, paying the cost of purchased goods (services), including VAT, may declare the amount of tax to be deductible.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 27.06.2011, № A40-55988/10-142-307) noted that the absence of the taxpayer permission to install the advertising structure is not a document that confirms the validity of the allocation of costs to the costs taken into account when calculating the tax income in accordance with Chapter 25 of the Tax Code. According to paragraph 4 of Art. 264 Russian Federation to the cost of advertising the organization include the costs of light and other forms of outdoor advertising, including production of promotional stands and billboards, as well as costs for other types of advertising.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 24.06.2011, № A40-94204/10-142-498) with reference to Art. 252 of the Tax Code noted that the absence of acts performed by service names of officers and decrypt signatures of the officials is not grounds for withdrawal of improper execution of documents, as in all acts performed services for parties that formed these documents are signed and stamped each of the parties.

The Decree of the Presidium of the Russian Federation of 12.07.2011 № 9149/10 was referring to Art. 249 of the Tax Code noted that if the rent for the use of non-residential premises consist of fixed and variable (utilities, etc.) parts, the compensation cost of tenant services variables leads to the formation of economic benefits to the lessor. This compensation for the landlord to be included in taxable income in the general procedure. Paying for utilities and other related content services to non-residential premises, the employer performs his own duties assigned to him by the lease contract, to provide the tenant of the property in a condition appropriate to its purpose, and therefore the payment for these services is the cost required to carry out entrepreneur activities aimed to receive income from rental of property.

The Decree of the Presidium of the Russian Federation of 05.07.2011 № 1407/11 was noted that paragraph 4 referred to Art. 170 of the Tax Code generally separate accounting of VAT on purchased goods (works, services) applies to cases where the taxpayer performs as both taxable and tax-free (excluded from taxation) operation on any grounds provided by Chapter 21 of the Tax Code. Reinterpret § 4 of Art. 170 of the Tax Code does not agree with in paragraph 2 of this article the general order of allocation of amounts of tax on the cost of producing and selling goods (works, services). The provisions of paragraph 2 of Article 170 of the Tax Code are applicable not only in the amounts of VAT paid in expenses directly related to the main activity of the society, but also concern about the use of tax deductions of amounts of tax paid in the general running costs. Thus, society has no right to impose a tax deductible amount of VAT paid in the general running costs, in part (aspect ratio), attributable to operations for the production and sale of goods (works, services) are not recognized as subject to taxation in accordance with Chapter 21 of the Tax Code.

Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.07.2011 № 2346/11 was referring to the Articles 258 and 375 of the Tax Code, paras. 18 and 19 PBU 6/01, "Accounting for Fixed Assets" and Section 54 of the Guidelines for Accounting of fixed assets (approved by order of the Russian Ministry of Finance from 13.10.2003, № 91n) noted that, if obtained under a leasing agreement equipment accounted for in accordance with the terms of the balance of the lessee, the lessee is the use of accelerated depreciation rate equal to three, is illegal. The useful life, representing a time during which a fixed asset is used for the purposes of the taxpayer, not to be arbitrary and to be determined for both tax and accounting based classification of fixed assets (approved by RF Government Decree 01/01 .2002, the number 1).

The Decree of the Moscow District Federal Antimonopoly Service (Case of 19.05.2011, № A40-31488/10-142-189) noted that in accordance with Article 252 of the Tax Code possibility of accounting for certain expenses for the purposes of calculating income tax depends on the availability of documents supporting the costs incurred, the tax legislation does not specify requirements for documentation, which can be confirmed by the economic justification of costs and neither a list of such documents, nor their shape. In this connection, the taxpayers in order to confirm the economic viability of costs can be any, they may have internal organizational and administrative documents justifying the purpose of the disputed costs. Condition for the inclusion of costs in cost is the opportunity on the basis of available documents to the conclusion that the costs actually incurred. Into account should be taken by the taxpayer, any evidence to prove the fact and amount of these costs, which are subject to legal assessment in conjunction. Errors in the design of some source documents can not serve as grounds for refusal to recognize the costs if the costs are confirmed by other documents. Violation of the rules of registration of the primary accounting documents is a violation of legislation regulating relations in the sphere of accounting, but by itself does not entail the conclusion that there is no cost and as such is not an independent ground for exclusion from the costs actually incurred by the taxpayer costs.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 04.05.2011, № A40-173950/09-90-1323) noted that the signing of the original documents with other counterparties using facsimile signature reasonably deemed by the court not involving the tax consequences of a refusal to refund taxes value added tax and the recognition of expenses for tax purposes. By virtue of paragraph 2 of Art. 160 of the Civil Code to use in transactions facsimile reproduction of signatures by means of mechanical or other copying, digital signatures or other analogue of a handwritten signature is allowed in cases and in the manner provided by law, other legislation or agreement of the parties.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.04.2011, № A40-162831/09-142-1356) with reference to the definitions of the Constitutional Court from 24.01.2008, № 33-O-O of 05.03.2009 and was № 468-O-O pointed out that the taxpayer must prove the services rendered by the counterparty to the transaction (including foreign), and have the appropriate documents proving the business transactions. Typically, a document confirming the fact of service is an act of the Service or other similar document, which contains a description of services rendered. The Company operates in the Russian Federation shall exercise its right to receive tax benefits in accordance with the provisions of the Tax Code, not the tax laws of a foreign state. Russian tax legislation to taxpayers must meet certain requirements in the implementation of the above rights, that does not relieve the taxpayer from complying with the tax authority to submit documents, duly registered, that is in accordance with Art. 252 of the Tax Code, Art. 16 of the Russian Federation of 25.10.1991, the № 1807-1 "On the languages ​​of the peoples of the Russian Federation", paragraph 9 of the accounting. The Court also necessary to examine these documents from the position of the completeness of the content. Establish as to whether the content of such a document identifying issues on which consultations are undertaken, the amount, nature and direction of the services rendered, correct formation of the actual cost of services.

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 31.03.2011, № A40-53114/10-107-280) declared illegal the refusal of the tax authority to refund overpaid tax in connection with the omission of the term by the taxpayer to apply for the refund of tax (3 years, section 7, Art. 78 of the Tax Code), because of the fact that too much tax in the stated amount and the exact amount of the overpayment the taxpayer recognized upon signing the act of a joint verification of calculations. Evidence that the taxpayer was aware of the presence of an overpayment by the court previously set date, the tax authority has been submitted.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.04.2011, № A41-16966/10) noted that, in accordance with paragraph 1 and paragraph 3 of Art. 93 Tax Code, the tax authority official conducting a tax audit, may require from the person required to check documents by presenting a single face (its representative) the requirement to submit documents (part 1). Documents that have been reclaimed during a tax audit, shall be submitted within 10 days from the date of deposit of the relevant requirements (Section 3). As the demand for documents was delivered to the taxpayer, the duty to submit the documents had not arisen. This finding is consistent with the above rules and the determination of the Constitutional Court from 12.07.2006 № 266-O, according to which the duty of presenting the documents for tax deduction arises from the taxpayer of the receipt with the tax authority to submit such documents. The cause of failure of the documents confirming, in accordance with Art. 172 of the Tax Code the right to tax deductions, was not the absence of these documents, and ignorance of the taxpayer to demand and obtain the documents by the tax authority.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 18.04.2011, № A40-93116/10-13-423) noted that the organization is entitled to a lump sum attributable to expenses that reduce taxable income, the cost to repair the premises (Article 260 of the Tax Code) to based on preliminary contract of lease. The fact that the main lease agreement was not concluded, does not prevent accounting costs, since in accordance with Art. 252 of the Tax Code recognizes expenses any costs to generating revenue. Conclusion of the preliminary contract by a court of circumstances indicating the intention of the society to generate revenue.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 18.04.2011, № A40-93116/10-13-423) noted that the investigator's decision to suspend the investigation in connection with the establishment of no person to be brought in as a defendant, is sufficient to write off the cost because the fact of theft and the fact that the culprit is not the establishment is confirmed. Therefore, the community in accordance with paragraphs. 5 para 2 of Art. 265 of the Tax Code, legally classified as non-operating expenses in the form of loss of shortage of material assets in case of absence of the perpetrators, as well as losses from theft, the perpetrators are not identified.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 14.04.2011, № A40-75795/10-76-386) with reference to the definition of the Constitutional Court from 04.06.2007 № 320-OP admits to the inclusion of the costs, accounted for the profit tax, the cost of renting the pool because, in accordance with section 25 of Art. 255 of the Tax Code in spending taxpayer's payroll includes all expenses incurred for the benefit of the employee, provided the employment contract and (or) collective bargaining agreement.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 14.04.2011, № A40-78540/10-99-387) with reference to the provisions of paragraphs 3, 9, 34, 35 PBU 19/02 "Accounting for Investments", Section 5 PBU 9 / 99 "Revenues organization," Section 11 of the Regulations on accounting and financial reporting in the Russian Federation (approved by Order of the Ministry of Finance from 29.07.1998 № 34n) noted that the costs associated with providing the organization to other organizations of loans are recognized as other expenses organizations, and be reflected in the account 91-2. Score 91 is used to record revenues in the amount of interest on loans granted by virtue of the fact that the granting of loans to third parties is not the main activity of the society. Consequently, the costs are debited accounts 90 may not apply to activities related to the implementation of investments, and therefore the argument of the inspection company exceeded five per cent barrier set by the requirements of Sec. Clause 4 of Article 9. 170 of the Tax Code, is not taken into account, because under this regulation must determine the share of total expenditure on the production of goods (works, services), property rights, implementation of the operations which are not taxable, the total value of the total cost of production, rather than the share of revenue.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 13.04.2011, № A40-79230/10-35-409) noted that Article 18 of the Federal Law of 24.07.2009, № 212-FZ "On insurance premiums ...", the following rules the payment of insurance premiums. Payers of insurance premiums required to timely and fully pay the premiums (Item 1). The obligation to pay insurance premiums shall be considered performed by the payer of insurance premiums, unless otherwise provided in Part 6 of this article from the date the bank in order to transfer to the budget of the state extra-budgetary funds to the account of the Federal Treasury (with an appropriate budget classification code) in cash from the account payer insurance premiums in the bank if it enough money to balance the day of payment (items 1 5). The obligation to pay insurance premiums is not recognized if performed incorrectly indicated payer insurance premiums in the order for transfer of insurance premiums account number of the Federal Treasury, the budget classification code, and (or) the name of the beneficiary's bank, which caused non-listed this amount in the budget of the state budget fund for the corresponding Federal Treasury account (paragraph 4, subsection 6). Consequently, the error when you specify the CSC in this case caused no flow of funds in budget fund to the account of the Treasury.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 08.04.2011, № A40-82912/10-146-420) with reference to paragraph 22 of Resolution of the Plenum of the RF from 17.02.2011 № 11 noted that paragraph 3 of Article 18.15 of the Administrative Code Russia establishes responsibility for failure to notify immigration authorities, and not notice him out of time. With this in mind the composition of the offense covered only cases where at the time of detection of an administrative offense the person has not notified the immigration authorities to bring to work a foreign citizen or stateless person.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.03.2011, № A40-54251/10-111-293) noted that if the taxpayer in acquiring the goods did not act as a customer of the contract of carriage, the view waybills on form number T-1 is not required, to support the reality of delivering the goods may be submitted invoices in the form of trafficking in number 12, and invoices.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.03.2011, № A40-56286/10-99-272) noted that the statutory deadlines for the implementation of procedures for tax collection (arrears, penalty) are preclusive and not be recovered. Article 70 of the Tax Code provides that the request must be made ​​within 3 months after the onset of the obligation to pay taxes or within 10 days from the date of the decision on raising the tax liability. After the expiration of the voluntary payment of the tax authority decides to collect taxes through cash in the accounts of the taxpayer in the bank (no later than 60 days after the expiration of the tax requirements). Decision on collection, taken after the expiry of the deadline will be considered invalid and shall not be enforceable. Thus, if the sum of those provided for in Articles 70, 46, 47 of the Tax Code in order to recover the said arrears, has expired, for example, in 2003 - 2004., This is evidence of the illegality of the payment of its claim in 2010.

In the Decree of the Moscow District of FAS, the 29/03/2011 (case number A40-57145/10-99-284) declared illegal tax agency collection letter, as exposed inspection requirements do not contain information about the grounds of levying taxes on the amounts of arrears, which accrued penalties, and interest accrual periods, fines (the requirements were put up on the basis of a cash balances). In accordance with Art. 69 of the Tax Code requirement should include details of the grounds for levying tax on the amount of arrears, which accrued penalties and interest accrual periods, fines, and to the provisions of the legislation on taxes and fees, which establish the obligation of the taxpayer to pay tax. The absence of these data suggests the invalidity of the claims based on the legal position set out in the Resolution of the Plenum of the RF from 28.02.2001 № 5.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.03.2011, № A40-36395/10-107-192) noted that the payment of public accommodation (rent and payment of utility services), non-resident workers for the duration of labor contracts is compensated by moving to work in another locality with regard to the provisions of Articles 164, 165, 169 of the Labor Code, and the amount paid by the company are not subject to tax on personal income.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 21.03.2011, № A40-36395/10-107-192) noted that the fact that the lack of travel documents to print the host does not refute the fact finding trip, because there are orders of the mission, office jobs, travel card and expense reports on Form AO-1.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 10.03.2011, № A40-35160/10-114-197) with reference to the paragraphs. Section 3, Article 2. 170 of the Tax Code stated that society should not recover the VAT from shortage, damage items, as the legislation on taxes and fees contains no provisions requiring the taxpayer to recover the VAT on goods, unused to the activities subject to VAT because of the impossibility of such use, damage, loss.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 16.02.2011, № A40-160420/09-115-1142) with reference to Art. 247 of the Tax Code noted that paragraph 1 of Art. 309 of the Tax Code provides a list of private income received by a foreign organization that is not related to its business activities in Russia include the income of a foreign organization from sources within the Russian Federation and shall be subject to tax withheld at the source of income.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 07.02.2011, № A40-38778/10-127-180) noted that the sale of goods for export are not included in the list of transactions that are exempt from taxation, and therefore the provisions of paragraph 4 of Article 149 and 170 NC Russia to export transactions do not apply. Duty organizations maintain separate accounting records transactions of sale of goods for export to the Russian Tax Code does not provide.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 04.02.2011, № A40-59413/10-13-316) noted that the documents, which shall be made overseas posting, in accordance with the Decree of the State Statistics Committee of Russia of 05.01.2004 № 1 (in particular order (the order) to send an employee on a business trip (form number T-9 and T-9a) and a service job (form number of T-10a)), their presence and design determined by the internal document organization and to document for tax purposes profit organizations is not compulsory. Court's findings are consistent with the position of the Russian Finance Ministry, comprising, for example, in a letter dated 06/12/2002, the № 16-00-16/158, which states that the organization may issue a regulatory document that sets out a list of documents that are the basis for sending an employee on a business trip.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.02.2011, № A40-81012/09-20-527) with reference to paragraph 8 of Art. 50 Tax Code, noted that the allocation of a legal entity of one or several legal entities in relation to the succession of the reorganized entity in terms of the performance of his obligations to pay taxes (fines, penalties) does not arise. If the selection of a legal entity of one or several legal entities, the taxpayer is unable to perform the full obligation to pay taxes and the reorganization was designed to breach of duty to pay taxes (penalties and fines), pursuant to a court evolved entities may jointly carry out the obligation to pay taxes (penalties and fines) of the reorganized entity.

The Decision of the Supreme Arbitration Court of 19.05.2011 № 3943/11 noted that paragraph 3 of Art. 170 of the Tax Code provides for cases in which the amount of tax taken by the taxpayer to a deduction for goods (works, services), including fixed assets and intangible assets, property rights, be reversed. Legislation on taxes and fees contains no provisions requiring the taxpayer in writing off the goods after the expiry date to recover the amount of VAT previously lawfully taken for deduction. In particular, does not constitute grounds for recovery of amounts of tax write-offs in the budget (the destruction) of inventory in connection with their loss, damage, shortage, marriage.

The Decree of the Presidium of the Russian Federation from 26.04.2011 № 23/11 was noted that the use of tax deductions for VAT is the right of the taxpayer, has a declarative character by declaring them in the filed to the tax authority and tax returns can be realized only under defined in chapter 21 of the Code of conditions. Failure to declare tax deductions does not deprive taxpayers of their right to use in the future, under the conditions laid down in Articles 171 - 173 of the Tax Code.

The Supreme Court on 06.06.2011, № GKPI11-617, with reference to Art. 185 of the Civil Code and the Federal Law on 21.011.1996 № 129-FZ "On Accounting", found that a power of attorney for inventory may be granted not only to employees of organizations, as provided in the Regulations of the USSR Ministry of Finance of 14.01.1967 № 17, but also other persons who are not with the organization of labor relations.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.02.2011, № A40-49882/10-142-274) noted that the Tax Code contains no requirement that the amount of tax may be taken as deductions only during the period of sale of goods, and not can be taken as deductions in subsequent tax periods not exceeding three-year period since the end of the tax period in which the tax was paid. Application of the tax deduction for VAT is a right, not an obligation of the taxpayer and is entitled to use it in any period in the presence of bases and the documents under Art. Art. 171, 172 of the Tax Code.

Decision of the Russian Federation from 17.05.2011, № VAS-3440/11 for taxpayers who use STS with a taxable "income" found that they may reduce the amount of tax (Income tax), but not more than 50%, not only paid on contributions to OPS employees and paid from the taxpayer's temporary disability benefits, and paid contributions for OMC, OSS and injuries. Line 280 of tax return in that part of the declared inactive since 01/01/2010 because it does not correspond to the second paragraph of Section 3, Article. 346.21 of the Tax Code.
The above has been previously noted in a letter to the Federal Tax Service of Russia of 03.03.2011, № KE-4-3/3396@ (See review of 03/23/2011).

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.01.2011, № A40-58773/10-111-314) on a matter related to the failure by the taxpayer claims the tax authority to tax (penalties, fines) on a voluntary basis and then setting a tax authority collection order to enforce the money from the account on which the taxpayer's money written off, noted the following. Paragraph 3 of Article 79 of the Tax Code provides for a taxpayer to choose a way to protect their violated rights in the event that the tax authority sought from him the amount of taxes, fees, penalties, fines too, that is unwarranted or illegal. In this case the Tax Code does not contain any indication that the right to appeal to the court a taxpayer is subject to pre-treatment by the tax body at the return of amounts recovered. Do not set this order and other federal law. Such an interpretation is given in the decree of the Presidium of the Russian Federation of April 20, 2010 № 17413/09. The statement of claim in court can be filed within three years from the date when the person knew or should have known about the over collection of tax.

The Decree of the Presidium of Supreme Arbitration Court of 05.04.2011 № 2574/09 was noted that if the possibility of the application for judicial review of acts of a supervisory lost, subsequently forming the Supreme Arbitration Court of the Russian Federation's legal position on the disputed the question is not the basis for revision of the case of newly discovered evidence.

The Decision of the Supreme Arbitration Court of the Russian Federation of 19.05.2011 № 3943/11 was noted that paragraph 3 of Art. 170 of the Tax Code provides for cases in which the amount of VAT deductible by the taxpayer received the goods (works, services), including fixed assets and intangible assets, property rights, be reversed. Write-off items that have expired (sales) to the number of cases listed in Section 3, Article. 170 of the Tax Code does not apply.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 27.01.2011, № A41-8360/10) noted that if the company - the buyer is not a customer of the carriage, was not involved in the transportation of goods, the waybill, in this case does not provide and should not be granted in conjunction with other documents to the tax office during the inspection. To apply the tax credit on VAT should have been complied with the order established by Articles 171 and 172 of the Tax Code.

The Regulation of FAS Moscow District (Case of 24.01.2011, № A40-49822/10-114-278) noted that Secs. 28 paragraph 1 and paragraph 4 of Art. 264 of the Tax Code does not define an exhaustive list of documents that could confirm the incurring advertising costs. The opinion of the tax authority that the fact that advertising in the broadcast media should be confirmed by the ethereal certificates issued by the broadcaster, not based on the norms of art. 252 of the Tax Code.

Resolution of the Federal District of Moscow (the case on 21.01.2011, № A40-37674/10-111-199) declared illegal the decision of the tax authorities of the need to restore the amount of VAT payable on defective products, as qualified expenses (marriage or recurrent waste) on rules of Chapter 25 of the Tax Code does not affect the applicant's right to apply tax deductions for VAT by virtue of Art. 173 of the Tax Code.

The Regulation of FAS Moscow District (Case of 21.01.2011, № A40-27538/10-20-203) with reference to paragraph 7 of Art. 1988 Tax Code, noted that the submission of tax returns for income tax is not one of those cases where the Inspectorate has the right to request additional documents by Art. 1988 Tax Code, and Chapter 25 of the Tax Code does not provide for duties of the taxpayer to submit to the tax authority, together with the tax return for income tax documents to prove the correctness of tax calculation, the courts have indicated that the accountability for failure disputed documents is illegal. Under paragraphs 6, 8, 9, Art. 1988 Tax Code, the obligation of the taxpayer to submit additional documents arises when testing the legality of using tax credits, with submission of VAT declaration, which states the right to a refund of tax, while checking the correctness of tax calculations relating to the use of natural resources.

The Regulation of FAS Moscow District (Case of 17.01.2010, № A40-168181/09-142-1421) noted that a separate division is considered established if there is evidence of a separate division under Section 2, Article. 1911 Tax Code. Including the information about the branch in the constituent documents of the applicant in its state registration indicates the intention of the founder of the Company to create a separate division and not on job creation and operation of more than a month. Date of creation and the beginning of the activities of a separate division is to conclude a lease of uninhabited premises, date of creation of jobs, recruitment director of the branch, since it is from the equipment of a stationary workstation and the beginning of the location of the unit tax law relates the creation of a separate division.

The Regulation of FAS Moscow District (Case of 17.01.2011, № A40-161298/09-145-585) noted that the reference in the customs declaration incorrect code TN VED of Russia goods wrongfully classified by Customs to the unlawful act, responsibility for which is provided by Part 2 Rule 16.2 of the Code of Administrative Offences. Possible discrepancy code is subject to elimination by the customs authority when verifying a customs declaration, provided that other information about the number, properties and characteristics of the goods indicated significantly.

The Regulation of FAS Moscow District (Case of 14.01.2010, № A40-174645/09-35-1328) noted that the withdrawal of the tax authority on the economic unreasonableness Company incurred costs inconsistent with the provisions of tax laws, because the competence of the tax authority does not include verification of incurred taxpayer costs from the perspective of their feasibility, effectiveness and efficiency.

The Regulation of FAS Moscow District (Case of 30.12.2010, № A40-34501/10-75-156) noted that not apply to personal income and are not included in the taxable base for personal income tax and unified social tax, reimbursement of travel the employee organization including cash, issued in accountability for the purchase of tickets for the performance of work, bearing with traveling.

The Regulation of FAS Moscow District (Case of 30.12.2010, № A40-2036/10-90-26) noted that Art. 169 of the Tax Code does not impose on the taxpayers' obligation to decrypt the signature (s) of the head and chief accountant of the invoice, so the failure to refund VAT on the stated reason contradicts item 2, Art. 171, Section 3, Article. 172, Art. 169 of the Tax Code.

The Regulation of FAS Moscow District (Case of 14.01.2010, № A40-174645/09-35-1328) noted that, in accordance with paragraph 7 of Article. 259 of the Tax Code (from 1.1.2011, — the n. 1, Art. 259.3 of the Tax Code) in respect of depreciable assets used for work in aggressive environment or increased shift to accelerated depreciation the taxpayer is entitled to apply a special coefficient, but not higher 2. Fact increased shift in production in the workshops, carried out by the taxpayer, is confirmed by evidence presented in the materials of the case: full-time schedules for workshops, working hours, replaceable rapport monthly report cards are working. In addition, tax law does not provide a clear list of documents required to provide evidence for increased shift work.

The Regulation of FAS Moscow District (Case of 29.12.2010, № A40-8556/10-140-91), with reference to paragraph 2 of Art. 211, Section 3, Article. 217 of the Tax Code, Art. 196 TC RF noted that payment of the cost of training workers is not included in their income, if training is provided by the employer in order to more effectively perform the functions of labor workers.

Resolution of the Federal District of Moscow (the case on 29.12.2010, № A40-86768/08-112-449) to the taxpayer refused to invalidate the decision of the tax authorities of the accrual of income tax, VAT, as the court in a case not established a manifestation of society should prudence and caution in selecting their contractors as well as in contract, signing acts and payment of services rendered, it is not asked about the presence of active CEOs, authorized to sign financial and economic documents, and examined the credentials of the persons with whom negotiated.

The Regulation of FAS Moscow District (Case of 28.12.2010, № A40-168732/09-127-1389) noted that under Secs. 2, paragraph 3, Article. 257 of the Tax Code to intangible assets include the exclusive right of the author and copyright holder to use a different computer programs, databases. Standards of Chapter 25 of the Tax Code does not prescribe a uniform recognition of the cost of purchasing software for the period for which granted non-exclusive right to use them. According to Secs. 26 n. 1, Art. 264 of to the other costs associated with production and sales include costs associated with the acquisition ofrights to to use computer programs and databases under contracts with the owner ( of licensing agreements ).

The Regulation of FAS Moscow District (Case of 28.12.2010, № A40-168732/09-127-1389) noted that from paragraph 1 of Art. 257 of the Tax Code does not directly imply that the costs of certification of equipment related to costs for its acquisition, construction, fabrication, delivery, bringing to usable condition, so in this case it is possible to use paragraphs. 2 of Section 1, Art. 264 of, according to which the other costs associated with production and sales include the cost of certification of products and services.

Resolution of the Federal District of Moscow (the case on 30.07.2010, № A41-30741/09) with reference to Art. 1916 Federal Law of 25.07.2002 № 115-FZ "On the Legal Status of Foreign Citizens in the Russian Federation " and Section 3 of the Decree of the Government of the Russian Federation of 24.03.2003 № 167 recognized as lawful assignment of the expenses deductible from taxable income the cost of housing foreign citizen during his stay in Russia, under the employment agreement, on the basis of this authorization. Provision of housing for foreign nationals working in the enterprise, is the responsibility of the enterprise. These costs are incurred to enforce foreign workers of their job duties, not to meet their personal needs in housing, which confirms that they were made ​​for the implementation of productive activities. Therefore, in accordance with paragraph 49 of article. 264 of these expenses are accounted as expenses for purposes of calculating income tax.

The Regulation of FAS Moscow District (Case of 22.12.2010, № A40-106667/09-129-1223) noted that the legislation on taxes and duties of the Russian Federation does not bind the taxpayer's right to refer to expenses when calculating income tax expenses to the presence or absence he has a license agreement that is registered with the Federal Service for Intellectual Property, Patents and Trademarks, the right to use the trademark. In accordance with paragraphs. 28 n. 1, Art. 264 of to the other costs associated with production and sales, advertising costs are made ​​(purchased), and (or) the traded goods (works, services), the taxpayer, a trademark and service mark, including participation in fairs and exhibitions.

The Regulation of FAS Moscow District (Case of 22.12.2010, № A40-106667/09-129-764) noted that the responsibility for drawing up invoices giving rise to the application of the tax deduction by the taxpayer - the buyer of goods (works, services) and incorporate the information specified in Article 169 of the Tax Code, for the seller. Therefore, subject to the counterparty of these requirements on registration of documents required grounds for withdrawal of the unreliability of any conflicting information contained in these invoices are not available, if not installed circumstances indicating that the taxpayer knew or should have known that the seller provides false or contradictory information. In the absence of evidence is not making business transactions, in respect of which included charges and claimed the right to a tax deduction, the conclusion that the taxpayer knew or should have known of the unreliability (inconsistency) of information can be made by the court as a result of evaluation in the complex of circumstances, related to the negotiation and execution of the contract, as well as other circumstances mentioned in the Resolution of the Plenum of the RF from 12.10.2006 № 53. Conclusion about the unreliability of the primary documents signed by persons not as identified in the founding documents of counterparties as the leaders of these companies can not own, in the absence of other facts and circumstances, considered as a basis for the recognition of tax benefits unfounded. Within the meaning of the provisions contained in paragraph 7 of Article 3 of the Tax Code, in the sphere of tax relations is a presumption of good faith. Enforcement authorities have no right to interpret the term "bona fide taxpayers' as imposing on the taxpayers additional duties not covered by the legislation, including the set of real leaders of these organizations and to investigate the authenticity of signatures on primary documents.

The Regulation of FAS Moscow District (Case of 21.12.2010, № A40-152886/09-80-1165) noted that the provisions of paragraph 5 of Article. 173 of the Tax Code provides that the amount of tax payable to the budget, calculated by the following persons in the case of issuing them to the buyer an invoice with an amount of tax: 1) persons who are not taxpayers, or taxpayers, exempt from the duties of the taxpayer related to the calculation and payment of tax, and 2) the taxpayer for the sale of goods (works, services), operations, implementation of which is not taxable. In this case, the amount of tax payable to the budget, defined as the amount of tax indicated in the invoice that was delivered to the buyer of goods (works, services). Consequently, invoicing with a dedicated amount of VAT on transactions that are not subject to this tax, can not serve as grounds for denying the public the right to use the tax deduction.

The Regulation of FAS Moscow District (Case of 24.12.2010, № A40-26035/10-75-123) with reference to Secs. 16 n. 1, Art. 264 of noted that the board state and (or) private notary for notarization applies to other costs associated with production and sales and accounted for by the taxpayer in the costs when calculating income tax in the range of tariffs, approved in the prescribed manner. In this legislation the Notary does not contain mandatory requirements in order to fill the notary documents certifying the fact of providing notarial services.

The Regulation of FAS Moscow District (Case of 14.12.2010, № A40-153275/09-142-1226) noted that the availability of goods, works and services in a particular period is not a prerequisite for the application of VAT deduction.

The Regulation of FAS Moscow District (Case of 16.12.2010, № A40-12606/10-140-133) noted that during the repair and overhaul of fixed assets cost to repair does not increase the initial cost of fixed assets and are included in company's costs of the fiscal year in which the repairs were made. Consequently, the diversity of information on the cost of repairs in a card form № OS-6 is for informational purposes, and graphs in this section can not be filled with accounting staff responsible for fixed assets accounting. Stated requirement of the tax authority is not based on law.

The Regulation of FAS Moscow District (Case of 16.12.2010, № A40-139433/09-118-1206) with reference to Secs. 25 para 1 of Art. 264 Tax Code RF of noted that the legislation on taxes and duties of the Russian Federation does not contain any requirements for mandatory verification of a production nature of each taxpayer to the fact of use of communications services.

The Regulation of FAS Moscow District (Case of 10.12.2010, № A40-62863/10-122-366) noted that within the meaning of Article 4.5 of the Code of Administrative Offences within 2 months from the date of discovery of administrative violations must be taken is the decision of the case an administrative offense rather than draw up a protocol on administrative violation, which is proof of the case and captures the circumstances of violations.

The Regulation of FAS Moscow District (Case of 09.12.2010 № A40-9168/10-140-103) noted that since the submission of the society as a result of loans does not arise in the implementation of the operation, there are no transactions that are exempt from VAT, respectively There are no grounds for the application of the provisions on the apportionment of the VAT and the introduction of separate accounting under paragraph 4 of Art. 170 of the Tax Code.

The Regulation of FAS Moscow District (Case of 08.12.2010, № A40-13946/10-109-27) noted that since the directories (mailing of products offered to potential buyers) have no use value to the recipient, are in effect part 2 Art. 497 of the Civil Code means familiarize the buyer with a product offered by the seller, the courts make an informed conclusion that the directories themselves are not a commodity, in this connection their mailing does not constitute the object of VAT as a gratuitous transfer of goods by virtue of paragraph 1 of Article . 39 of the Tax Code and Secs. 1 of Section 1, Art. 146 of the Tax Code.

The Decree of the Presidium of Supreme Arbitration Court of 01.03.2011 № 13018/10 was noted that the labor law does not limit employers to pay workers compensation, non-labor activities. However, for tax purposes a list of payments to employees is limited. Such payments for referring to the costs into account for taxation revenue should be directly related to the performance of the employees of their employment duties under the employment relationship.

The Decree of the Presidium of Supreme Arbitration Court of 01.03.2011 № 14871/10 was noted that despite the fact that the organizations applying USN (STS), by virtue of Paragraph 3, Article. 4 of the Federal Law of 21.11.1996 № 129-FZ "On Accounting" are exempted from the accounting, they are obliged to keep records of fixed assets (in a particular case — the objects of real estate) and intangible assets, as well as comply with other regulations in the sphere of civil law regulation. Thus, the legislation provides for the approval procedure for a large deal (25% of the company's assets, determined on the basis of financial statements for the last reporting period preceding the date of the decision of the commission of such transactions, except transactions made in the ordinary course of business). To challenge the transaction by the Company, located on a simplified system of taxation on the grounds of its size the plaintiff must submit evidence that the transaction is the largest (in particular, to provide data accounting for the value of company assets or to require the examination to determine the value of its assets). Upon receipt of such evidence, the court rightly acknowledges the transaction null and void, and applies to it effects in the form of return of all parties received on transactions. In this case, the court invalidated a deal on the alienation of immovable property under Art. 46 of the Federal Law of 08.02.1998 № 14-FZ On Limited Liability Companies.

The Regulation of FAS Moscow District (Case of 16.11.2010, № A40-17811/10-127-67) noted that paragraph 3 of Article. 170 of the Tax Code establishes the cases in which the amount of VAT, the deduction taken for goods to be restored. Shortage and theft of the item does not.

The Decree of the Presidium of Supreme Arbitration Court of 01.02.2011 № 10230/10 was referring to paragraph 7 of Art. 1984 Tax Code, noted that if the documents in the transaction has an invalid (nonexistent) taxpayer identification number, then this fact is sufficient grounds for charging the buyer (customer) back taxes and penalties on VAT and income tax. Other proof of tax authority may not be, because the taxpayer acted without due diligence. Court made ​​the correct conclusion that the design on behalf of a non-existent entity can not serve as the basis for cost accounting and decision-tax deductions on the value added tax.

The Regulation of FAS Moscow District (Case of 12.11.2010, № A40-10103/10-140-109) noted that organizations have the right to develop his route sheet form or other document evidencing the costs incurred in the form of fuel, which should be reflected all the details provided by Section 2, Article. 9 of the Law "On Accounting". Lack of travel sheets indicate the purpose of the trip, place of origin, destination, departure time and the mark on the work undertaken in this case does not constitute grounds for the recognition of expenses not documented confirmed. Documentary evidence of the acquisition of fuel filling stations are checks that were presented to the tax audit. In addition, Russian law prohibits supervisory authorities to assess the feasibility of a business transaction.

The Regulation of FAS Moscow District (Case of 29.10.2010 № A40-155980/09-127-1225) noted that in accordance with paragraph 11 of Part 1, Art. 264 of to the other costs associated with production and sales, include the cost of the taxpayer for the maintenance of official vehicles. Order of 18.09.2008 № 152 of Ministry of Transport of Russia approved the mandatory details and procedure for completing trip tickets. Required to specify the route of this Order is not provided.

The Regulation of FAS Moscow District (Case of 29.10.2010 № A40-155980/09-127-1225) noted that the transactions contemplated pp. 2 of Section 1, Art. 164 of the Tax Code shall be subject to VAT at the rate of 0 per cent, provided that the goods are placed under the export customs regime at the time of these transactions or if the nature of the operations themselves, they may only be made in respect of export goods.

In Resolution of FAC, District of Moscow (case, dated 21/10/2010 № A40-167992/09-13-1421) noted that the sale of goods for export are not included in the list of transactions that are exempt from taxation, and therefore the provisions of paragraph 4 of Article 149 and 170 Tax Code Russia to export transactions do not apply. Duty organizations keep separate records of operations on the sale of goods for export to the Russian Tax Code does not provide. Based on the systematic interpretation of the rules of articles 170 - 172 of the Tax Code, the courts made a valid conclusion that is proportional to determine the amounts to be deducted, including on "general business" expenses, is made in the case of specific goods (work, service) at the same time used for both operations, subject to VAT and exempt from paying this tax. In other cases, when the product is only used when performing operations that are subject to VAT, or, conversely, are exempt from paying it, the adoption of VAT is deductible in accordance with Art. Art. 171, 172 of the Tax Code in its entirety, or accounting value of goods (works, services) in accordance with paragraph 2 of Art. 170 of the Tax Code.

In Resolution of FAC, District of Moscow (case, dated 19/10/2010 № A40-161448/09-116-938) noted that the tax law does not bind the right to tax deductions in fact reflected in the statements received earnings and payment of VAT to the budget of the supplier of goods, unless proven bad faith of the taxpayer.

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-156412/09-126-1263) is noticed that the legislation on taxes and tax collections doesn't specify the acquired fixed assets should be reflected in what account of the business accounting, and also the order of compensation of the sums of the VAT depending on reflection of cost of the acquired fixed assets on any concrete accounts of the business accounting isn't established. Owing to item 2 of item 171 Tax Code the Russian Federations are subject to deductions the sums of the tax shown to the taxpayer at acquisition of the goods (works, services) in territory of the Russian Federation concerning the goods (works, services), the operations acquired for realization recognized as the taxation objects of the VAT. According to item 172 Tax Code the Russian Federation the tax deductions provided by clause 171 of the present Code, are produced on the basis of the invoices exposed by sellers at acquisition by taxpayers of the goods (works, services).

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-156412/09-126-1263) is noticed that item 1 of item 172 Tax Code the Russian Federation specifies only in the right of the taxpayer to show to a deduction in full the sums of the tax to the value added, paid to suppliers. Thus, the Code doesn't contain a prohibition on a presentation to a deduction of such sums outside of the tax period in which there was such right. Thus, declared by the taxpayer to the VAT deduction during later periods, than during the period in which there was a right to the tax deduction, doesn't break rates of the legislation on taxes and tax collections and doesn't lead to indebtedness origin before the budget as VAT non-payment in later periods is compensated by an overpayment of the same tax in the previous tax periods, owing to deduction non-use.

In Resolution of FAC, District of Moscow (case, dated 8/10/2010 № A40-113664/09-107-857) isn'ted the below-mentioned. According to subitem 4 of item 4 of item 45 Tax Code the Russian Federation a unique obligatory requisite in the payment order without which the obligation on tax discharge isn't considered performed - an account number of Federal exchequer and the payee's bank name in case of which wrong instructions money funds haven't arrived in budgetary system of the Russian Federation. Regarding correctness of instructions OKATO or other requisites the given clause doesn't provide requirements.

In Resolution of FAC, District of Moscow (case, dated 5/10/2010 № A41-18513/08) is noticed that according to item 2 of item 264 Tax Code the Russian Federation the expenses suffered by a society in connection with acquisition of souvenirs and gifts, handed over by a holiday of New Year to representatives of other firms, concern expense accounts under condition of their documentary registration. The given expenses are connected with industrial activity.

In Resolution of FAC, District of Moscow (case, dated 30/09/2010 № A40-19787/10-111-132) is noticed that the current legislation doesn't provide availability of traveling sheets as the mandatory condition for inclusion in expenses on the profits tax of costs for purchasing of combustive-lubricating materials and for application of the tax deductions under the VAT.

In the Resolution of Presidium Supreme Court Russian Federation from 11/30/2010 № BAC-4350/10 it is noticed that the taxpayer in the absence of fault in fulfillment of a tax offense can't be held liable. According to subitem 3 of item 1 of item 111 Tax Code the Russian Federation the circumstance excluding fault of the person in fulfillment of a tax offense, admits accomplishment of written explanations by it about an order of calculation of the tax, given to it or an uncertain circle of persons financial, tax or other authorized body of the government (the authorized officer of this body) within its competence (the named circumstances are established in the presence of the corresponding document of this body, on sense and the maintenance concerning the tax periods in which the tax offense, irrespective of date of the edition of such document is made). If by a legal investigation the taxpayer has a corresponding written explanation (including Given to the uncertain circle of persons, published in Help Low Systems "the Konsultant +"), given by the Ministry of Finance of Russia according to item 1 of item 34.2 Tax Code Russian Federation inspection doesn't have bases for collecting of the penalty provided by item 1 of item 122 Tax Code Russian Federation.

Order of the Supreme Arbitration Court of 12.01.2011, № 1, taken in connection with changes to the APC (Federal Law of 27.07.2010, № 228-FZ) adopted interim procedure for filing documents in the arbitration courts in Russian Federation electronic form. Document govern the procedure for filing documents in the arbitration courts in electronic form by filling in forms posted on the official website of the arbitral tribunal on the Internet.

The Decree of the Presidium of the Russian Federation of 16.11.2010g. № 10914/09 noted that there can not be retroactive Plenum of the RF or decree of the Presidium of the Russian Federation, comprising the interpretation of the law, which worsen the situation by a person engaged or brought to administrative responsibility (including following a review of newly discovered evidence an enforceable legal act). As a result of this interpretation can not get worse (compared with the interpretation of previously settled in the jurisprudence) and the position of taxpayers, since by virtue of Articles 54 and 57 of the Constitution is inadmissible giving retroactive laws that worsen the position of taxpayers, including, as noted in ruling of the Constitutional Court of the Russian Federation of 08.10.1997 № 13-II, in the acts of an official or a different interpretation or in law enforcement.

The Decree of the Presidium of the Russian Federation of 16.11.2010g. № 10914/09 noted that there can not be retroactive Plenum of the RF or decree of the Presidium of the Russian Federation, comprising the interpretation of the law, which worsen the situation by a person engaged or brought to administrative responsibility (including following a review of newly discovered evidence an enforceable legal act). As a result of this interpretation can not get worse (compared with the interpretation of previously settled in the jurisprudence) and the position of taxpayers, since by virtue of Articles 54 and 57 of the Constitution is inadmissible giving retroactive laws that worsen the position of taxpayers, including, as noted in ruling of the Constitutional Court of the Russian Federation of 08.10.1997 № 13-II, in the acts of an official or a different interpretation or in law enforcement.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 03.09.2010, № A40-154850/09-142-1244) noted that the mere absence of the travel data sheets about the route of the vehicle can not be a sufficient reason to exclude the cost of the tax base if the evidence of the use of cars solely for personal purposes by the tax authority has been submitted. Expenses of the organization for the purchase of fuels and lubricants accounted for either as part of material costs in accordance with paragraphs. 5 para 1, Art. 254 of the Tax Code or as part of the expenses of the maintenance of official vehicles by virtue of paragraphs. 11 para 1 of Art. 264 Russian Federation, that is, depending on the purpose of transport used. To confirm the validity of the expenses incurred by society were represented logs, and confirmation of payments made - checks to pay for fuel and staff expense reports. According to the Guidelines for reimbursement of expenses be reimbursed only business expenses on the basis of original documents submitted an expense report after authorization by the staff. That is, to the advance reports are attached initially documents relating only to business expenses. In approving the expense report supervisor checks the validity of expenses. Approved an advance report goes public accountant who, in turn, checks the advance report and attached documents to ensure compliance with legislation and internal procedures (including those based on the data sheet on the track driven kilometers monitors compliance with internal rules of spending Fuels and lubricants).

Presidium Resolution of the Supreme Court RF, as of 16.11.2010 № BAC-4451/ has invalidated the decision of tax authority on value added accrual of property tax, penalty and fine, since court were legitimately guided by the fact, that the object of real estate did not meet characteristics of an asset while being unavailable for use at the moment of receipt of a permission for exploitation and prolonged renovation works in order to make the object useful for operation following receipt of the permission.

Resolution of the Federal Antimonopoly Service of the Moscow District (Case of 03.09.2010, № A40-136245/09-114-1045) is recognized as legitimate by which organizations hospitality and accounting for tax purposes the cost of acquisition of bouquets of fresh flowers and floral arrangements for official receptions. Court noted that, according to AP. 22 Section 1, Art. 264 Russian hospitality list is not closed. The only restriction is provided to account for such costs Article 264 of the Tax Code, is that they should not exceed 4% of the costs of an organization to pay for the reporting (tax) period.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 01.09.2010, № A40-52846/08-35-191) noted that the tax deductibility of the VAT (Article 171 of the Tax Code) are made on the basis of invoices, vendors exhibited at the acquisition by the taxpayer goods (works, services). The provisions of the legislation on taxes and duties of the Russian Federation do not contain provisions prohibiting the deduction for the presentation of such amounts outside of the tax period in the light of Art. 173 of the Tax Code and the legal position set out in Decree of the Presidium of the Russian Federation of 15.06.2010, the № 2217/10. In addition, in accordance with the provision of accounting policies for tax purposes the taxpayer stated that the results obtained from the supplier invoices are recorded in the register of received invoices as they become available.

The Decree of the Presidium of the Russian Federation of 20.07.2010 № 3018/10 was noted that the seven-day period provided for Section 2, Art. 23 of the Tax Code to be sent to the tax authority in writing reports on the discovery in a bank checking account can not be calculated before receipt of the organization or individual entrepreneur to open a bank reports the account.

The Decree of the Moscow District Federal Antimonopoly Service (Case of 31.08.2010, № A40-122866/09-75-899) noted that the cost of the agent that he had committed in connection with the performance of obligations under the agency agreement, if such costs are to be included in the cost principal are not recognized as an expense agent. If the agent carries costs that are not reimbursed by the principal, the agent may include these expenses in the expenses taken into account in the taxation of its profits.

Resolution of FAC, District of Moscow (case, dated 01.09.2010 № A40-52846/08-35-191) with a reference to the Decision of Constitutional Court of the Russian Federation, of 02.10.2003 № 384-O, has noted that failure to fill in any parts of an invoice, unless it affects VAT payable, but rather related to additional information on transaction participants, and upon availability of evidence for existent VAT payments made to suppliers, may not be used as basis for refusal of tax deductions. The fact of a certain document found missing, should not serve as a basis for refusal of applying for a tax deduction as long as there is evidence of tax payment to the seller when making a purchase of goods (works, services) and its use in business purposes, including any other basis concerning the use of VAT reimbursement rights.

Resolution of FAC, District of Moscow (case signed 31.08.2010 № A40-51604/09-143-335) with a reference to article 169, 171, 172 and 252 TC RF, notes that if contract statutes do not have relevant provisions that allow to produce an act on the receipt of works finished (forms № KS-2) and a note for the costs of works finished (form № KS-3), verified through the Resolution of RSSC as of 11.11.1999 № 100, but instead have provisions for making other types of respective document, stipulated by the contract, then, pursuant to article 746, State Code of the Russian Federation, taxpayer has a right to reduce taxable profit and deduct VAT amounts.

Resolution of FAC, District of Moscow (case signed 31.08.2010 № A40-96192/09-112-702), brings to notice, that on the basis of the contents of sp. 2 p.1 article 164 TC RF, the list of services relevant to the article is not recognized as being comprehensive. The key criteria, allowing to refer controversial services to transactions liable to 0% tax rate, is their direct connection to manufacturing and sale of goods, exported pursuant to the Customs Approved use of goods.

Resolution of FAC, District of Moscow (case, signed 31.08.2010 № A40-128425/09-116-716) has recognised exclusion of advertisement costs from expenses part by Tax Dept. illegitimate if these costs are being used for third parties (official dealers) not being sister branches of structural subdivisions of the company but rather making income independently from their own commercial activity. Pursuant to sub-paragraph 28, p. 1 article 264 TC of the Russian Federation, other costs related to production and sales, include the costs of advertisement of produced (acquired) and (or) sold goods (works, services), taxpayer's activity, trademark and service trademark, as well as participation in fares and exhibitions. Pursuant to article 3, Federal law signed 13.03.2006 № 28-FL "On advertisement", information, delivered by any means, in any form and use of any type of resources, addressed to indefinite number of persons and focused on attraction of awareness towards the object of commercial, formation or support of interest to it and its market promotion. In this case, the consumers of advertisement were those individuals and legal entities who acquired full and authentic information regarding the product being sold, distributor and distributor's commercial activity, product sales and locations where the product is sold, locations of warranty services provided. This being said, the advertisement costs are economically rational and associated with commercial activity of the claimer, whose ultimate goal is acquisition of profit.

Resolution of FAC, District of Moscow (case dated 31.08.2010 № A40-156204/09-33-1239) has recognized arguments of Tax Department illegitimate with regards to the issue that an independently composed way bill does not contain requisites regarding vehicle itinerary of travel, which does not serve as evidence that the vehicle was used in business purposes, that such requisites are compulsory and reflect the content of economic transaction, and they are not acceptable due to the following reasons. Taxpayer is not regarded as a specialized auto transport company and does not provide transport services for third party companies. Forms of way bill, verified by the Resolution of RSSC of the Russian Federation, as of 28.11.1997 № 78, referred to by the Tax Department, are applied on compulsory basis by specialized auto transport organizations. Other organizations may develop their own form of way bill or another document that would confirm amounts spent on fuel. The case material concludes that the company order validates the form of way bill for a car. Pursuant to the order, vehicles should be used exclusively in business purposes. Monthly way bills, registered according to an independently developed form, contain all necessary requisites, stipulated by Federal law "On accounting", as well as data allowing to determine the volume of petrol that has been used: remainder of petrol at the time of departure, remainder of petrol at the time of entry, petrol refill and vehicle's mileage according to speedometer. The court has established that with regards to the issue being disputed, the tax authority has not provided sufficient evidence for respective motives of its decision to reduce the base of taxable income.

Resolution of FAC, District of Moscow, (case signed 30.08.2010 № A40-96192/09-112-702) makes a note, that pursuant to sp. 3 p. 7 article 272 TC RF the date of incurring non operational and other cost should be the date of making accounts according to statutes of concluded contracts or the date the taxpayer was provided with documents, serving as the basis to make calculations. In compliance with accounting policy for taxation, if there are any recalculations or reconciliations conducted in the following periods, then with regards to the corrected amounts, the time of costs recognition, in taxation purposes, should be a fixed date of documents provision in a society. Respectively, this should be the date of bilateral signing of an act. Therefore, assignation of costs in the taxation period, where the society received relative documents is lawful.

Resolution of FAC, District of Moscow (case dated 30.08.2010 № A40-96192/09-112-702), brings to notice, that pursuant to sp. 13 p 1 article 265 TC RF, non operational expenses include the costs in form of fines recognized by the debtor, penalties and (or other) sanctions for violation of contractual or loan liabilities. The specified norm does not associate the right of taxpayer to assign penalties and fines to non operational costs with a compulsory presence of a contractual statute to pay them in the event of violation of contract liabilities, but rather associates them with the fact of debtor's recognition of them. In present case, society's recognition of penalty sanctions has been confirmed by dual reconciliation act of accounts.

Resolution of FAC, District of Moscow, (case dated 20.08.2010 № 40-98565/09-76-675) brings to notice, that statutes of the article 169 TC RF do not contain requirements to provide a specific supplier's address. It may be either legal or actual address. In the event, if supplier specifies incorrect address in an invoice, it should not serve as a basis for refusal of tax deductions, since there is no such correlation stipulated by tax regulations. Besides, responsibility for correct fill-in of invoices lays on supplier of goods (works, services). Therefore, a buyer who received a valid invoice, in terms of requirements specified in p.5 article 169 TC RF, from supplier, has a right to declare a tax deduction for the amount specified in the invoice.

Resolution of SAC Presidium of the Russian Federation, as of 06.07.2010 № 2604/10 states, that the restrictions for the use of VAT deductions are stipulated on in t. 1 p. 7, article 171 TC of the Russian Federation which only mentions business trip costs and representative costs. Based on systematic interpretation of p. 7 article 171 TC RF and ch. 25 TC RF, there is an ongoing dispute with regards to establishing normative rules for VAT deduction only in relation to the specified costs. It is illegitimate to assign p. 7 article 171 TC of the Russian Federation with significance of a separate standard and extend the right of standardization to all types of costs which, pursuant to ch. 25, TC RF have to be calculated based on established standards.

Resolution of FAC, District of Moscow (case signed 30.07.2010 № A40-2254/09-98-9) with a reference to p. 2 article 9 of the Federal law, as of 21.11.1996 № 129-FL "On accounting", notes, that if certain content of services provided is identified in the agreement itself, it is not reasonable to transfer each type of economic transaction (name of specific transaction) from contract and if specifying abbreviated name with a reference to respective contract in the act of works finished (services provided), fully responds to the requirements of account and fiscal accounting. Resolution of FAC, District of Moscow (case signed 30.07.2010 № A40-2254/09-98-9), brings to notice, that tax legislation does not stipulate requirements for documents, that may be used to confirm economic legitimacy of costs, there is no particular list or form stipulated for such documents. As a result of this, taxpayers, for the purpose of confirming economic legitimacy of costs, may use any available organizational/management document that would verify the purpose of incurring specified costs.

Resolution of FAC, District of Moscow (case, of 30.07.2010 № A40-135800/09-126-1034) with a reference to p. 2 article 259 and p. 3 article 272 TC of the Russian Federation has recognized the decision of Tax Department on laying additional charges on income tax illegitimate for the following reason. The argument of inspection with regards to the calculation of depreciation amounts subject to be entered under costs, should be carried out based on the share of property lent out, while registration of depreciation amounts in the months of fiscal period, when the claimer did not have any profit is not legitimate, verified by courts and recognized groundless.

Resolution of FAC, District of Moscow (case, signed 29.01.2010 № A40-17688/10-140-162) brings to notice that admission of a three year term for return of an offset of tax, stipulated by article 78 TC RF, does not prevent taxpayer from addressing court with a lawsuit to return the overpaid amount from the budget according to the order of civil or arbitral judicial scrutiny, in which case, general rules for calculation of claim’s term apply — starting with the date when an individual found out or should have found out about violation of his/her right.

In Resolution FAC of the Moscow district (28/07/2010 № A40-119877/09-80-909) is noticed that representation by the tax bearer of the issued documents all properly provided by the law, with a view of reception of tax benefit is the basis for its reception if by tax department it is not proved that the data containing in these documents, are incomplete, doubtful, inconsistent. The fact of infringement by the counterpart of the tax bearer of the tax duties in itself isn't the proof of reception by the tax bearer of unreasonable tax benefit.

In Resolution FAC of the Moscow district (28/07/2010 № A40-70460/09-111-438) recognized as lawful solution to the tax authority of the inclusion of the non-operating expenses of interest on debt, because the tax authority legitimately calculated maximum amount of interest to be expensed under Art. 269 ​​of the Tax Code, and the taxpayer has no reason to attribute part of the cost of interest accrued in excess of amounts recognized as an expense for tax purposes. In violation of the requirements of paragraph 1 of Article 269 of the Tax Code in order for the accounting policy for tax purposes, society can not determine what debt should be considered comparable. In the absence of criteria defined in the accounting policy, the company decided that all credit agreements contain a comparable credit terms.

Resolution of FAC, District of Moscow (case signed 17.06.2010 № A40-96437/09-112-707) brings to notice, that pursuant to p.i. 1 p. 2 article 269 TC RF special rules of determination for the marginal amount of interest recorder for the purpose of taxation on liabilities, recognized as controlled liability, should be applied only if the amount of controlled liability on the last date of respective accounting period exceeds the difference between the amount of assets and the amount of taxpayer’s liabilities by more then 3 fold. As stipulated by court authorities in a just manner, the difference between assets and taxpayer’s liabilities should be defined in compliance with the Order on evaluation of the cost of net assets of joint stock companies, confirmed by the order of the Ministry of Finance of the Russian Federation and FCSM of the Russian Federation as of от 29.01.2003 № 10n/03-6/pz, including provisions of p. 2 article 269 TC RF, i.e. by way of deducting the taxpayer’s liability amounts from asset amount taken for calculation, and adding liability of taxes and levies to this result.

Resolution of FAC, District of Moscow (case signed 16.06.2010 № A40-125078/09-126-900) Notes that, pursuant to sp. 10 p. 1 article 264 TC of the Russian Federation, other production and sales related costs include rent (leasehold) payments for rented (accepted for a leasehold) property, as well as costs associated with acquisition of property, transferred into leasehold. The society used disputable accommodation in order to conduct real commercial (tourist oriented) activity, directed towards acquisition of profit, while there were not predicaments associated with documents confirming rent costs and building related services. In present legal situation, courts have used article 252, 264 TC of the Russian Federation and came to conclusion that costs associated with rent and services regarding the accommodation are documentary verified and have sufficient economic grounds. In case if Society violates Housing Code of the Russian Federation, as referred to by tax authorities, Society could be brought to justice pursuant to the current legislation.

Resolution of FAC, District of Moscow (case signed 11.06.2010 № A40-69883/09-4-494) notes that the list of other costs associated with production and sales, pursuant to sp. 49 p. 1 article 264 TC RF is not comprehensive. Thus the cost ok broken goods, also due expiration, irreplaceable packaging defects etc., legitimate relate to costs associated with production and sales and recorded during formation of a taxable base for the purpose of income tax calculation.

Resolution of FAC, District of Moscow, (case signed 21 19.05.2010 № A40-148892/09-127-1139) with reference to article 88 TC RF, states, that in cases when tax authority, while conducting a cameral tax check, has not detected errors and other contradictions in submitted tax declaration, it does not have any basis for termination of taxpayer’s explanations or accounting documents. Resolution of FAC, District of Moscow (case, signed 19.05.2010 № A40-148892/09-127-1139) notes, that chapter 26.2 TC RF does not assume taxpayer’s obligation to provide tax authorities with purchase and sales ledger along with tax declaration for uniform tax paid subject to use of simplified taxation.

Resolution of FAC, District of Moscow (case signed 13.05.2010 № A40-105228/09-80-719) has noted, that Tax Code of the Russian Federation does not contain regulations that allow tax authorities to evaluate costs incurred by taxpayers from standpoint of their practicality, rationality and effectiveness. According to the tenor of position stipulated by Constitutional Court of the Russian Federation, and explained in Resolution, as of 24.02.2004 № 3-P, judicial control is not obliged to check economic legitimacy of decisions, made by subjects of commercial activity, that have autonomy and wide discretion. Also, courts came out of legal position of Constitutional Court of the Russian Federations, explained in Definitions, as of 04.06.2007 № 320-О-П и № 366-O-P, pursuant to which, due to principle of freedom with regards to economic activity, taxpayer does it at his own risk and has a right to independently and unanimously evaluate its effectiveness and practicality. This being said, courts have justly declined claims of inspection on economic illegitimacy of costs incurred by society, as it contradicts legal regulation on taxes and levies.

Resolution of FAC, District of Moscow (case signed 13.05.2010 № A40-112158/09-93-975) has recognized it legitimate to bring an organization to justice for administrative violation, stipulated by article 15.1 Administrative Offences Code of the Russian Federation (violation of the order on operations with cash and order of conducting cash transactions …) due to the following circumstances. The Tax Department has stipulated, that over the auditable period, fiscal report related date does not correspond to the date, reflected in cashier’s register, cashier’s book. Thus, the data, reflected in the cashier’s book, as of 26.05.2009 contain amount of 10487 rubles as entered in the books, while data of fiscal memory of CRE reflect an amount of 10892 rubles, documentary unverified difference (no entry, or not adequate entry) came to 405 rubles. Thus, the fact of incomplete entry of cash into cash register – 405 rubles, leading to violation of statutes of the Law on use of CRE, Law № 129-FL 21.11.1996 “On accounting”, points 13,22,24 of the “Order on cashier operations in the Russian Federation”, verified by Letter of Central Bank of the Russian Federation, as of 04.10 1993, № 18, has been established and society has been justly brought to administrative justice.