Art. 154 of the Tax Code of the Russian Federation determines the procedure for establishing the tax base in the process of providing services, selling goods or performing work. Normally, special attention is paid to various methods of its formation, which should be chosen by the payer in accordance with the conditions of sale. Let us further consider the features of Art. 154 of the Tax Code with commentary.
General information
In paragraph 1 of Art. 154 of the Tax Code of the Russian Federation provides that the tax base in the process of selling products, works or services, unless otherwise permitted by this article, is determined in the form of their value. It is calculated on the basis of prices established in accordance with Art. 105.3. In this case, excise taxes are taken into account (for the corresponding product category) and tax is not included.
Receiving payment
When transferring amounts to the payer (including advance payments) against future deliveries (production of works, provision of services), the base is in accordance with the provisions of paragraph 1 of Article 154 of the Tax Code, calculated on the basis of this payment, including tax. There are exceptions to this rule. Payment is not taken into account, in part, including that received by the entity for the upcoming deliveries of products:
- Not subject to taxation.
- The duration of the production cycle of which is more than six months and when determining the base in the course of shipment / transfer of facilities under the provisions of paragraph 13 167 of the Code.
- Taxable at the rate of 0% under Art. 164 p. 1.
The base in the process of shipment on account of the payment received (advance payment), previously included in the calculation, is determined by the subject according to the rules established in para. 1 point of the first considered norm.
P. 2, Art. 154 of the Tax Code
In the process of implementation of barter (exchange of goods) operations, free of charge, upon transfer to the pledge holder of the right of ownership for non-fulfillment of the obligation, which is secured by the pledge, as well as products when paid in kind, the base is determined as the value of objects. It is calculated at prices established by rules similar to those provided for in Article 105.3, excluding tax and excise taxes (for the corresponding product category). In the case of the implementation with the use of subsidies provided from budgetary funds or benefits relied on for individual consumers, the base is determined in the form of the cost of goods sold (services rendered, works performed). It is calculated at actual prices. The amounts of subsidies that are provided from the budgets in connection with the use by the subject of regulated state value, or benefits that are relied on for certain categories of consumers, are not taken into account when determining the base.
Incentive Payments
The provision by the seller of a bonus to the buyer for the fulfillment by the latter of certain conditions of the supply agreement does not reduce the cost of goods shipped (services rendered, work performed) by the corresponding amount. This rule is fixed in paragraph 2.1 of Art. 154 of the Tax Code. Incentive payments may be provided, including for the purchase of a certain volume of products (works / services). An exception to the rule are cases where a reduction in value by the amount of the premium is established in the terms of the contract. According to paragraph 3 of Art. 154 of the Tax Code of the Russian Federation, in the process of selling tangible assets that must be accounted for at their cost, taking into account the tax paid, the base is determined in the amount of the difference in the price of the property sold (established by the rules of Article 105.3) with tax and excise tax (for the corresponding category of products) and residual tax after revaluations.
Sale of agricultural products
When selling agricultural goods and their processed products purchased from entities that are not tax payers, in accordance with the provisions of paragraph 4 of Article 154 of the Tax Code of the Russian Federation, the base is defined as the difference in the price established in the manner fixed in Article 105.3, taking into account the mandatory payment to the budget, and the cost of acquiring objects. This rule applies to transactions with products included in the list approved by the government. An exception to paragraph 4 of Art. 154 of the Tax Code are excisable goods. The base in the process of implementing services for the release of goods from tolling materials (raw materials) is established in the form of the cost of their processing, processing or other transformation. At the same time, the tax is not included in it and excise tax is taken into account (for the corresponding product group). This rule sets out the fifth paragraph of Art. 154 of the Tax Code. When selling cars purchased from individuals who do not act as taxpayers for subsequent sale, the base is determined in the form of a difference in price established by the rules of Article 105.3 and taking into account the mandatory deduction to the budget and the cost of acquiring vehicles. This procedure provides for paragraph 5.1 of Art. 154 of the Tax Code.
The specifics of derivatives transactions
When objects are sold under contracts involving deliveries at the end of the periods specified in them at the indicated price, financial instruments that are not traded on the organized market, the base is determined in the form of the value of these objects provided for in the agreement. At the same time, it should not be less than the amount calculated in accordance with the prices calculated in accordance with the rules of Article 105.3, effective on the calendar number corresponding to the time of the calculations, without including tax including excise taxes. This procedure is established by paragraph 6 of Art. 154 of the Tax Code. It also determines that when selling the underlying asset, fin. instruments that circulate in organized markets and provide for its delivery, the base is set in the form of value at which it is expected to be sold under the terms of a futures transaction approved by the exchange. Calculation is carried out on a calendar number corresponding to the moment established by article 167, excluding tax including excise taxes. When the underlying asset is sold under option contracts traded on an organized market and providing for its delivery, the base is calculated in the form of the cost at which the sale must be made under the terms of a derivatives transaction. At the same time, it should not be less than the amount calculated at prices determined by the rules of Article 105.3, which are valid on the date coinciding with the time of calculation at the rate of 167, excluding tax and excise tax.
Additional terms
When selling products in multi-turn containers, for which collateral prices are provided, these amounts are not included in the base. This rule applies to cases when the packaging is returned to the distributor. Depending on the characteristics of the sale, the base is determined by the provisions of Articles 155-162. In paragraph 10 of Art. 154 of the Tax Code of the Russian Federation, it is established that a change in the direction of increasing the cost (excluding mandatory deductions to the budget) of shipped products, including due to an increase in the tariff (price) or volume (quantity) of goods, property rights, is taken into account by the payer when calculating the base for the period , in which the documentation was issued, serving as the basis for issuing counterparties to the corrective invoices under paragraph 10 of article 172.
Explanation
In Art. 154 of the Tax Code of the Russian Federation, general rules are established by which the tax base is calculated in the process of selling services, products, works. In accordance with the first paragraph of the norm, it is defined as the value of objects, calculated at prices established by the rules of Article 105.3. For a better understanding of the order should first turn to Art. 40 of the Code. If, within the framework of the system of civil regulation of commercial activity, the principle of freedom of contractual terms applies to pricing rules, the legislation provides for a certain list of requirements that must be observed. The key criterion is the conformity of the value of the object by agreement to the market price. Under paragraph 1 of Article 40, unless otherwise provided by the Tax Code, for the purpose of taxation, the amount indicated by the parties to the transaction is accepted. Until otherwise proven, it is believed that the price corresponds to market value. Under the latter, in accordance with Art. 40 (paragraph 4), the amount is accepted, formed during the interaction of supply and demand when selling identical or homogeneous products in comparable economic conditions.
Exchange operations
On transactions of this kind is said in paragraph 2 of Art. 154 of the Tax Code. The rules of exchange operations are defined in article 567 of the Civil Code. Clause 1 of this rule states that, in accordance with the exchange agreement, participants transfer objects to each other in exchange for those accepted. In Art. 567 also found that the provisions governing the sale and purchase apply to the agreement, if this does not contradict the substance of the transaction and the requirements of Ch. 31 GK. Moreover, each participant is considered the seller of the object, which he is obliged to transfer, and at the same time the recipient of the product, which he must accept in exchange.
Royalty free implementation
Under Article 39 of the Tax Code, transactions with goods, services, and work involve the transfer of property rights on a reimbursable basis. The first paragraph of this rule, however, contains a reservation. In accordance with it, the transfer of property rights to objects on a gratuitous basis is recognized as sale only in cases established by law. One of the special rules governing such a situation is article 146. In the first subparagraph of paragraph 1 of the norm, it is established that the transfer of property rights free of charge is considered to be implementation. According to the rules of the Civil Code, transactions of this type must be formalized by a deed of gift.
Sale of the subject of pledge
The general rules for the execution of the terms of the transaction in this case are provided for in article 334 of the Civil Code. According to the norm, a creditor under an obligation secured by a pledge has the right, if the debtor does not fulfill it, to receive satisfaction from the value of the item transferred to him. Moreover, this opportunity is predominant in relation to other entities that put forward requirements for this person, but it follows after the exemptions provided for in the law. According to article 336 (paragraph 1) of the Civil Code, any property may act as a pledged item. To him, among other things, include property rights. The exception is material assets withdrawn from circulation, claims that relate to the identity of the creditor (alimony, compensation for health damage, etc.), as well as other rights, the assignment of which is not allowed by the norms. The debtor or a third party may act directly as a mortgagor. At the same time, he may possess both the right of ownership and economic management. According to the requirements of Art. 8 (paragraph 2) of the Federal Law "On Accounting", tangible assets encumbered by a pledge until the time they are enforced against them in order to pay off the obligation must be reflected on the balance sheet of the pledge holder.
Volume of collateral
It is mentioned in art. 337 Civil Code. According to the norm, unless otherwise specified in the contract, the pledge shall provide for the claim in such an amount that existed at the time of satisfaction. It includes, in particular: forfeit, interest, compensation for losses incurred as a result of delay, as well as expenses of the holder of the thing for its maintenance and expenses for, in fact, recovery. The property, therefore, repays the entire obligation and additional costs of the lender. A claim that is secured by property may not be related to its acquisition by the pledge holder. This is due to the fact that the value of material assets usually does not coincide with the size of the obligation. From this it follows that the transfer of the pledged thing into the ownership of its holder suggests the presence of some financial result. It manifests itself as the difference between the par value of debt repaid through the sale of property and the cost of acquisition without tax or the cost of material assets. VAT, which is subject to deduction in the transaction, thus will reduce the result of the sale of collateral, which is reflected in the creditor's accounting in the account. 91.
Important point
Article 339 of the Civil Code establishes the requirement that the agreement on pledge must specify the subject of the contract and its assessment, the nature, term and amount of fulfillment of the obligation, which is provided by the transferred property. In addition, the document must contain information about the subject, which is the holder of wealth. The pledge agreement is concluded exclusively in writing.