How to document income tax expenses

List of documents

The list of documents that must be drawn up to confirm certain expenses, as well as the procedure for their preparation, are not defined by the Tax Code of the Russian Federation. Therefore, in practice, any documents an organization has must be assessed taking into account whether they (together with other evidence) can confirm the fact and amount of expenses incurred or not. Moreover, depending on the actual circumstances of the transactions and the conditions of the financial and economic activities of the organization, in each specific case, expenses can be confirmed by different documents.

In particular, the following may be submitted to support expenses:

• primary accounting documents: invoices, acts, waybills, sales and cash receipts, etc.;

• other documents directly or indirectly confirming the costs incurred: orders, contracts, customs declarations, travel certificates, documents drawn up according to the business customs of the country in which the costs were incurred (for example, invoices, vouchers), etc.

This procedure follows from the provisions of paragraph 1 of Article 252 of the Tax Code of the Russian Federation. The legality of this interpretation of this norm is confirmed by judicial practice (see, for example, the ruling of the Constitutional Court of the Russian Federation dated June 4, 2007 No. 320-O-P, the ruling of the Supreme Arbitration Court of the Russian Federation dated June 17, 2009 No. VAS-5445/09, the resolution of the FAS North -Western District dated February 17, 2009 No. A42-2570/2007).

All documents must be prepared in accordance with legal requirements. In particular, each primary accounting document must contain the mandatory details listed in Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ. The absence of required details does not allow the document to be recognized as confirming the expenses incurred. In this case, other documents will be required to confirm them. For example, to confirm expenses for the purchase of goods (work, services) in cash, cash receipts alone are not enough. The cash receipt does not contain the names of positions and signatures of the persons who performed the transaction and are responsible for its correct execution. In addition, a cash receipt only indicates the fact of payment for goods (work, services) (clause 2 of the Regulations approved by Decree of the Government of the Russian Federation of July 23, 2007 No. 470). Therefore, to confirm the corresponding expenses for profit tax purposes, in addition to the cash receipt, you need to have:

• expense reports;

• sales receipts;

• receipts for the cash receipt order.

Similar clarifications are contained in the letter of the Federal Tax Service of Russia dated June 25, 2013 No. ED-4-3/3/11515.

Is it possible to confirm expenses with documents that are completed with errors? It is possible if the mistakes made allow you to correctly determine the seller and buyer, the type and amount of expenses, the date of the transaction and other important elements of the transaction. For example, a document can be accepted for accounting if it contains an abbreviated name of the service, a unit of change code is missing, grammatical errors or typos are made in the name or address of the counterparty. Or if, in addition to the required details of the document, it contains additional information. If the document contains distorted information about the cost of goods (work, services), or the date is unclear, then such a document cannot be accepted as confirmation of expenses.

This conclusion can be drawn from the letter of the Ministry of Finance of Russia dated February 4, 2015 No. 03-03-10/4547 (brought to the attention of lower inspections by letter of the Federal Tax Service of Russia dated February 12, 2015 No. GD-4-3/2104).

3.1.1.2. DOCUMENTARY PROOF OF EXPENSES FOR INCOME TAXATION PURPOSES
In order to take expenses into account, they must be documented. This is one of the requirements established by paragraph 1 of Art. 252 of the Tax Code of the Russian Federation. What documents need to be drawn up to confirm the expenses incurred? Article 252 of the Tax Code of the Russian Federation allows expenses to be confirmed by any documents that are drawn up in accordance with the legislation of the Russian Federation. Including documents that indirectly confirm expenses incurred, for example: - a customs declaration; - business trip order; — travel documents; — a report on the work performed in accordance with the contract. If expenses were made on the territory of a foreign state, then to confirm them you can submit documents that are valid in that state. Documents drawn up in a foreign language must have a line-by-line translation into Russian (clause 9 of the Regulations on accounting and financial reporting in the Russian Federation, approved by Order of the Ministry of Finance of Russia dated July 29, 1998 N 34n). Such a translation can be made either by a professional translator or by a specialist from the organization itself (Letters of the Ministry of Finance of Russia dated 04/20/2012 N 03-03-06/1/202, dated 03/26/2010 N 03-08-05/1, dated 03/11/2009 N 03-03-06/1/725, Federal Tax Service of Russia for Moscow dated May 26, 2008 N 20-12/050126). Moreover, tax authorities allow the costs of translation of documents by a third-party specialist to be classified as information services on the basis of paragraphs. 14 clause 1 art. 264 of the Tax Code of the Russian Federation (Letter of the Federal Tax Service of Russia for Moscow dated May 26, 2008 N 20-12/050126). At the same time, in Letter dated November 3, 2009 N 03-03-06/1/725, the Russian Ministry of Finance indicated that there is no need to translate documents into Russian in full each time if they are drawn up in a standard form. For the purposes of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, it is enough to translate the permanent form indicators into Russian once. If changes or additions are made to the form, only new (changed) indicators need to be translated. At the same time, there is another opinion on the issue of document translation, which is reflected in individual judicial acts. For our part, we note that a direct instruction on the translation of documents in some cases is still contained, for example, in paragraphs. 3 p. 3 art. 284, paragraph 1, 2 art. 312 of the Tax Code of the Russian Federation. In addition, if you do not translate documents into Russian, this will most likely lead to a conflict with the tax authorities during audits.

For law enforcement practice on the question of whether primary documents drawn up according to the rules of a foreign state need to be translated into Russian, see the Encyclopedia of Disputed Situations on Income Tax.

Thus, the Tax Code of the Russian Federation does not establish a specific list of documents that you must complete to confirm expenses incurred. The Tax Code of the Russian Federation also does not impose any requirements for the preparation (filling out) of expense documents. The main thing is that, based on the documents that you have, you can make an unambiguous conclusion that the expenses have actually been incurred (Resolutions of the Federal Antimonopoly Service of the Moscow District dated July 31, 2013 N A40-156729/12-116-278, dated March 10, 2009 N KA -A40/950-09, FAS of the Ural District dated 08/02/2013 N F09-6568/13, FAS of the North-Western District dated 03/02/2010 N A13-4637/2009, dated 01/14/2010 N A21-9813/2008, FAS Central District dated 02/18/2010 N A35-5033/08-C21, FAS of the North Caucasus District dated 03/30/2010 N A32-26661/2008-19/3). However, it is worth noting that according to paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, in order to confirm expenses, documents must be drawn up in accordance with the requirements of Russian legislation or business customs applied in the territory of a foreign state (for expenses incurred abroad). Thus, it is advisable to be guided by regulatory requirements rather than confirm expenses with arbitrary documents. What documents could these be? As a rule, several documents are drawn up for one expense transaction, at least two: one, let’s call it basic, provides the basis for the expense, and the second, payment (settlement), documents the expense itself. Basic documents also include primary documents that document the facts of economic life.

Note On the specifics of using unified forms of primary accounting documents, see the commentary.

The basic document can be a contract or an internal document of the organization. It depends on the type of expense. So, for example, if expenses are associated with the purchase of goods (work, services, property rights) from other organizations, then the basis for their occurrence will be an agreement with the supplier (clause 1 of Article 161 of the Civil Code of the Russian Federation). The agreement in this case provides the basis, procedure and amount of payment (Article 420 of the Civil Code of the Russian Federation). The payment itself is made with the execution of documents confirming the payment: a payment order or an expense cash order (clauses 1.12, 5.1 of the Regulations on the rules for transferring funds, approved by the Bank of Russia on June 19, 2012 N 383-P, clause 4.1 of the Bank of Russia Directive dated 11.03 .2014 N 3210-U “On the procedure for conducting cash transactions by legal entities and the simplified procedure for conducting cash transactions by individual entrepreneurs and small businesses”). The Russian Ministry of Finance indicated that the presence of invoices without other primary accounting documents cannot confirm the expenses incurred and, therefore, such expenses cannot be taken into account (Letter dated June 25, 2007 N 03-03-06/1/392). And the Federal Tax Service of Russia for the city of Moscow does not recognize expenses as confirmed if the organization only has an invoice for payment of services. According to officials, the fact of provision of services must be confirmed by a bilateral act, drawn up in accordance with the terms of the contract (Letter of the Federal Tax Service of Russia for Moscow dated February 18, 2010 N 16-15/017646). If expenses do not follow from contracts, then, as a rule, they are formalized in an internal administrative document of the organization. For example, the basis for the cost of paying bonuses to employees is the corresponding order of the manager on bonuses, the basis for travel expenses is the order of the manager to send the employee on a business trip. However, in most cases, basic basic and payment documents are not enough to confirm the expense. Other documents are also needed, in the absence of which it is impossible to make an unambiguous conclusion that the expenses were actually incurred. These can be various acts of acceptance and transfer of goods (work, services), invoices for payment issued by suppliers (performers), shipping documents from suppliers, cash and sales receipts, etc.

Note We note that, in the opinion of the Ministry of Finance of Russia, it is necessary to draw up a monthly acceptance certificate for services provided only if this is required by the legislation on the procedure for providing such services or if it is provided for in the contract (Letter dated November 13, 2009 N 03-03-06/1/ 750).

In addition, we note that to confirm the fact of incurring expenses, organizations can use universal documents recommended for use by the Federal Tax Service of Russia: a universal adjustment document (UCD) and a universal transfer document (UDD). Here, for example, are the documents required by regulatory authorities to confirm certain expenses.

Type of expense List of documents Basis Cellular communications for employees Agreement with a cellular operator; a list of employee positions approved by the manager who, due to the duties they perform, require the use of cellular communications; order from the manager to set a limit on communication expenses; detailed accounts of the telecom operator <1> Letters of the Ministry of Finance of Russia dated 01/19/2009 N 03-03-07/2, dated 06/05/2008 N 03-03-06/1/350 Maintenance and operation of company cars Waybills <2>; advance reports of accountable persons; coupons for fuel and lubricants, cash receipts; certificates of completed repair work, etc. Letter of the Ministry of Finance of Russia dated January 11, 2006 N 03-03-04/2/1 Real estate lease Lease agreement <3>; act of acceptance and transfer of leased property; documents confirming payment of rental payments; act on the provision of services under a lease agreement <4> Letters of the Ministry of Finance of Russia dated March 24, 2014 N 03-03-06/1/12764, dated October 13, 2011 N 03-03-06/4/118 Rental (leasing) of property Lease agreement ( leasing); act of acceptance and transfer of property; payment (settlement) documents <5> Letters of the Ministry of Finance of Russia dated November 16, 2011 N 03-03-06/1/763, Federal Tax Service of Russia dated September 5, 2005 N 02-1-07/81, Federal Tax Service of Russia for Moscow dated April 01. 2008 N 20-12/030773 Expenses for training and retraining of personnel on the territory of a foreign state Agreement (contract) for training; training program; certificates or certificates issued upon completion of training Letter of the Federal Tax Service of Russia for Moscow dated February 17, 2006 N 20-12/12674 Expenses for renting a vehicle with a crew Lease agreement; acts of acceptance of services provided; order from the head of the organization to assign rented cars to employees; applications for the use of rental cars; copies of waybills <2> to determine the route and time of use of rented cars Letter of the Federal Tax Service of Russia for Moscow dated April 30, 2008 N 20-12/041966.1 Expenses for reimbursing employees for the cost of paying interest on loans (credits) for the purchase and (or ) construction of residential premises Copy of the loan (credit) agreement; copies of receipts for payment of interest by the employee; documents confirming the fact of interest reimbursement by the employer (cash receipts, payment orders); agreement between the employee and the employer for reimbursement of interest costs; a copy of the document confirming the purchase of residential premises; an employment or collective agreement containing a condition on reimbursement to the employee of interest on a loan (credit) for the purchase (construction) of residential premises Letters of the Ministry of Finance of Russia dated March 12, 2012 N 03-03-06/1/122, dated November 16, 2009 N 03-03- 06/2/225

——————————— <1> However, we note that the Tax Code of the Russian Federation and other regulatory legal acts do not require having a detailed operator report on all telephone connections, much less a transcript of such a report. The judicial authorities also speak about this (see, for example, Resolutions of the FAS Moscow District dated 01/29/2010 N KA-A40/14759-09-2, dated 06/03/2009 N KA-A40/4697-09-2, FAS Volga District dated 05/23/2008 N A55-10554/07, Federal Antimonopoly Service of the Central District dated 03/06/2009 N A35-4080/07-C8). It is also noteworthy that previously the Russian Ministry of Finance did not indicate the need for detailed operator reports (Letter dated October 13, 2006 N 03-03-04/2/217). An agreement for the provision of communication services can be concluded directly with the employee, and the organization compensates the employee for his expenses. Such expenses, in our opinion, are confirmed by the same documents as in the case if an agreement with a telecom operator was concluded on behalf of the organization. At the same time, the Federal Tax Service of Russia for Moscow believes that the operator’s detailed report is not enough to confirm the production nature of the negotiations. According to tax authorities, it is necessary to attach to the report a transcript drawn up by the organization in a free form, which confirms that negotiations were conducted with counterparties or potential counterparties of the taxpayer (Letter of the Federal Tax Service of Russia for Moscow dated June 18, 2009 N 16-15/061735).

For law enforcement practice on the question of whether it is necessary to submit a detailed report from the telecom operator to confirm expenses for cellular communication services, see the Encyclopedia of Disputed Situations on Income Tax.

<2> The form of a waybill by an organization that is not a motor transport company can be developed independently in accordance with Art. 9 of Law No. 402-FZ. Motor transport organizations also may not use a unified form of waybill, however, in an independently developed form they should reflect all the details of the waybill approved by Order of the Ministry of Transport of Russia dated September 18, 2008 N 152 “On approval of Mandatory details and the procedure for filling out waybills” (Article 6 of the Charter road transport and urban ground electric transport). See a sample of filling out a passenger car waybill.

The court may consider expenses for fuel and lubricants confirmed without waybills if the organization, with the exception of a motor transport company, has other documents confirming these expenses (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated October 25, 2012 N A40-13623/12-75- 66 (left in force by the Determination of the Supreme Arbitration Court of the Russian Federation dated 02/21/2013 N VAS-1181/13), dated 12/19/2008 N KA-A40/11889-08). <3> In some cases, rental expenses can be confirmed without a rental agreement. For example, if the seller of a real estate property used the plot on which such a property is located on a lease basis. When purchasing real estate, the buyer, along with the real estate, also receives the right to lease part of the land plot, which is occupied by the real estate object and is necessary for its use, on the same terms and to the same extent as the previous owner of the real estate (clause 3 of Article 552 of the Civil Code RF, clause 1, article 35 of the RF Land Code). In this case, it is not necessary to conclude a lease agreement between the owner of the land plot and the buyer of the real estate (clause 14 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 24, 2005 N 11). In our opinion, this rule is also applicable in the case of transfer of real estate as payment for a contribution to the authorized capital. In these situations, to document the costs of paying rental payments for such land plots, it is sufficient that the corresponding lease agreement was concluded with the previous owner of the property (see, for example, Letters of the Ministry of Finance of Russia dated 06/08/2012 N 03-03-06/1/295 (clause 1), Federal Tax Service of Russia for Moscow dated May 22, 2006 N 20-12/ [email protected] , Resolution of the Federal Antimonopoly Service of the Volga District dated June 2, 2009 N A55-14357/2008). However, in order to avoid possible disputes with tax authorities, we recommend that, if possible, you re-register the land lease agreement for your organization. <4> According to the Ministry of Finance of Russia, expressed in Letter dated October 13, 2011 N 03-03-06/4/118, monthly conclusion of acts on the provision of services under a lease agreement is not required to document expenses. At the same time, if the execution of these acts is provided for by the contract, they also refer to documents confirming the costs of rental payments for tax purposes (Letter of the Ministry of Finance of Russia dated March 24, 2014 N 03-03-06/1/12764). <5> In Letter dated October 6, 2008 N 03-03-06/1/559, officials of the Russian Ministry of Finance also indicated that to confirm these expenses, a schedule of rental payments is also needed. In our opinion, such a schedule is not necessary if the terms for payment of rental payments are agreed upon in the contract. In addition, officials indicated that monthly conclusion of acts of services provided under a lease (sublease) agreement for the purpose of documenting expenses in the form of lease payments for profit tax purposes is not required.

Let us separately dwell on the problem of state registration of a real estate lease agreement concluded for a period of at least a year. The fact is that such agreements are considered concluded from the moment of their state registration (Article 164, paragraph 3 of Article 433, paragraph 2 of Article 651 of the Civil Code of the Russian Federation, paragraph 2 of Article 26 of the Land Code of the Russian Federation, Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.06.2000 N 53). In this regard, organizations often have problems with attributing to expenses lease payments under agreements that are not registered in the established manner. After all, the regulatory authorities do not recognize the costs as documented in this case (see, for example, Letters of the Ministry of Finance of Russia dated 01/25/2013 N 03-03-06/2/6, dated 03/05/2011 N 03-03-06/4/18, Federal Tax Service of Russia for Moscow dated November 23, 2009 N 16-15/122370, dated February 18, 2008 N 20-12/015152.2). At the same time, in these Letters, officials allow rental payments to be included in expenses before registering the agreement only if, on the basis of clause 2 of Art. 425 of the Civil Code of the Russian Federation, the parties will provide in the agreement a condition on its application to relations that arose before the conclusion of the agreement. At the same time, the Tax Code of the Russian Federation does not make the validity of lease payments dependent on the state registration of the lease agreement. In addition, civil legislation, as a general rule, does not apply to tax legal relations (Clause 3, Article 2 of the Civil Code of the Russian Federation). Arbitration courts share this position (Resolutions of the Federal Antimonopoly Service of the North-Western District dated 03/07/2008 N A56-19124/2007, FAS Moscow District dated 08/26/2010 N KA-A41/9668-10, dated 11/20/2007 N KA-A40/11852 -07).

For law enforcement practice on the question of whether it is possible to take into account expenses under a lease agreement concluded for at least a year and which has not undergone state registration, see the Encyclopedia of Disputed Situations on Income Tax.

Disputes with tax authorities can be avoided. To do this, we will consider possible options for concluding a lease agreement, in which lease payments can be included in expenses: 1) enter into a lease agreement for a period of less than a year and provide for an automatic extension for the same period. Indeed, in accordance with paragraph 2 of Art. 651 of the Civil Code of the Russian Federation, a lease agreement concluded for a period of more than a year is subject to mandatory registration (clause 10 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 N 59, Letter of the Ministry of Finance of Russia dated April 14, 2009 N 03-03-06/1/241, dated 04/07/2009 N 03-03-06/1/226, Federal Tax Service of Russia for Moscow dated 02/18/2008 N 20-12/015152.3, dated 03/22/2006 N 20-12/22181); 2) do not agree on the term of the contract (conclude a contract for an indefinite period). The fact is that such agreements are also not subject to state registration (clause 11 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02.16.2001 N 59, Letter of the Ministry of Finance of Russia dated 04.07.2009 N 03-03-06/1/226, Federal Tax Service of Russia dated 24.05 .2010 N ShS-37-3/ [email protected] ); 3) enter into a lease agreement for a period of less than a year and subsequently renew it for an indefinite period (see also Letter of the Ministry of Finance of Russia dated November 18, 2011 N 03-03-06/1/768). At the same time, in Letter dated September 18, 2009 N 03-03-06/2/174, the Russian Ministry of Finance did not take into account the recommendations of the Supreme Arbitration Court of the Russian Federation. Officials pointed out the need for state registration of a prolonged lease agreement if, as a result of the extension, the total lease term will be more than one year. A similar opinion was expressed by the Federal Tax Service of Russia in Letters dated May 24, 2010 N ШС-37-3/ [email protected] and dated July 13, 2009 N 3-2-06/76. Is it possible to confirm expenses with copies of primary documents? In practice, situations arise when the taxpayer does not have the originals, since he transfers them to one or another competent authority (court, tax office, etc.) to confirm payment of postage costs, state duties, etc. The regulatory authorities came to a fair conclusion that in such cases, expenses can be confirmed by copies of payment documents. Please note that these copies must be properly certified (Letters of the Ministry of Finance of Russia dated 07/11/2008 N 03-03-06/2/77, Federal Tax Service of Russia for Moscow dated 02/02/2009 N 08-19/008020, dated 10/31/2007 N 20-12/104579). It is possible that the organization, based on the terms of the contract and (or) business rules, cannot confirm costs with original documents. For example, we are talking about a case where the rules of voluntary medical insurance of the insurer organization stipulate that payments of insurance compensation are made on the basis of copies of documents confirming the occurrence of an insured event. As the Russian Ministry of Finance indicated, under such circumstances, expenses can be confirmed by copies of documents. The main thing is that they are properly certified by the taxpayer himself or a notary (Letters of the Ministry of Finance of Russia dated January 28, 2013 N 03-03-06/3/1, dated August 22, 2011 N 03-03-06/1/507). When preparing documents, it is advisable to include all the necessary data on your expenses. Tax authorities require this during audits. Moreover, the courts do not always support the taxpayer in such disputes. So, for example, when providing services (performing work) to a taxpayer, some courts do not recognize the corresponding expenses as documented if the acceptance certificates do not contain specific information about these services (work), are impersonal in nature, etc. At the same time, in a separate judicial act, the court indicated that the current legislation does not contain requirements for the need for a detailed decoding of services (works) in acceptance certificates (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 20, 2009 N 2236/07).

For law enforcement practice on the question of whether it is necessary to provide a detailed description of the work performed (services provided) in the act of completion of work (provision of services), see the Encyclopedia of Disputed Situations on Income Tax.

It also often happens that certain details of a primary document are filled out incorrectly (or not filled out at all). However, this fact in itself cannot be a basis for refusal to accept the corresponding expenses, if such an error does not prevent inspectors from identifying the seller, buyer, name of goods (work, services), property rights, their value (Letter of the Ministry of Finance of Russia dated 08.28.2014 N 03-03-10/43034). In addition, the courts proceed from the fact that the implementation of business transactions can be confirmed by other evidence (Resolutions of the Federal Antimonopoly Service of the West Siberian District dated August 17, 2012 N A81-4307/2011, FAS North Caucasus District dated October 29, 2009 N A53-2486/2009, FAS Volga District dated September 11, 2008 N A12-18383/07). Situations arise when the taxpayer made errors in accounting. According to the Federal Tax Service of Russia, errors in accounting in the general case are not grounds for refusal to recognize expenses. However, errors may lead to contradictions in the information reflected in the primary documents. And this may subsequently cause a dispute with the tax authority about the taxpayer receiving an unjustified tax benefit (Letter of the Federal Tax Service of Russia dated August 16, 2011 N AS-4-3/13346). Arbitration practice also develops in favor of the taxpayer. The courts note that violation of accounting procedures does not affect the taxpayer’s right to take into account expenses incurred. But provided that this did not lead to a distortion of the tax base (see, for example, Resolution of the Federal Antimonopoly Service of the Moscow District dated October 19, 2010 N KA-A40/12034-10). Tax authorities often make claims if transactions for the purchase of goods (works, services) have signs of invalidity (Articles 166 - 181 of the Civil Code of the Russian Federation). Thus, a controversial situation is when an organization purchased goods (work, services) from a counterparty that is not registered with the tax authorities or is not registered in the Unified State Register of Legal Entities (excluded from the Unified State Register of Legal Entities). When considering such disputes, some courts indicate that if the purchased goods are registered, used in the organization’s activities, and there are primary documents drawn up in accordance with the requirements of the law, then such costs are classified as expenses duly confirmed (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03/09/2010 N 15574/09, FAS of the Far Eastern District dated 10/28/2008 N F03-4692/2008, FAS of the North Caucasus District dated 08/28/2008 N F08-5094/2008, FAS of the East Siberian District dated 07/19/2007 N A19- 27250/06-F02-4068/07). However, many courts are of the opposite opinion (Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 02/01/2011 N 10230/10, FAS of the Ural District dated 05/24/2011 N F09-1952/11-S2, FAS Moscow District dated 06/11/2010 N KA-A40/5815- 10, Federal Antimonopoly Service of the West Siberian District dated 02/07/2011 N A45-1642/2010). At the same time, if the actual fact of acquisition of goods (work, services) by the tax authority is not disputed, the non-compliance of supporting documents with legal requirements cannot be a basis for completely excluding expenses from the tax base. Such costs must be classified by the tax authority as expenses in an amount determined on the basis of market prices applied for similar transactions (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 3, 2012 N 2341/12). Thus, the tax authority has the right to reduce the amount of expenses previously taken into account by the taxpayer only by the amount of the identified deviation of the expense declared by the taxpayer from the real (market) price level (Letter of the Federal Tax Service of Russia dated December 24, 2012 N SA-4-7 / [email protected] ).

Documents in electronic form

Expenses incurred can be confirmed by electronic documents. To do this, a document drawn up in electronic form must be certified by the electronic signature of the person responsible for the business transaction. The ability to draw up documents with an electronic signature when making civil transactions is provided for in Article 4 of Law No. 63-FZ of April 6, 2011. At the same time, this norm provides conditions under which an electronic signature is recognized as equivalent to a handwritten one.

At the request of regulatory authorities (for example, during inspections), the organization must, at its own expense, ensure the production of paper copies of documents compiled in electronic form. Similar clarifications are contained in letters of the Ministry of Finance of Russia dated January 11, 2011 No. 03-03-06/1/3, dated July 28, 2010 No. 03-03-06/1/491, dated November 26, 2009 No. 03- 02-08/85, dated October 27, 2008 No. 03-03-06/1/605.

The act of providing services

Situation: when calculating income tax, how can you confirm expenses incurred for services if there is no certificate of provision of services?

If drawing up an act of provision of services is not necessary, confirm the expenses with other documents.

The fact of expenses can be confirmed by any document, even indirectly indicating this (clause 1 of Article 252 of the Tax Code of the Russian Federation). Therefore, if the organization does not have an act of provision of services, any other document will be sufficient to confirm the expense. This can be a payment order, cash receipt, invoice, receipt, etc. For example, any documents drawn up in accordance with the requirements of the law (agreement, rental payment schedule, property acceptance certificate, invoice for payment) can confirm rental payments services, etc.). For more information about this, see How a tenant can reflect rental payments in tax accounting.

The exception is cases when drawing up an act on the provision of services (performance of work) is mandatory.

What errors do tax authorities most often find in acts of services rendered during audits?

As the practice of audits shows, the following errors are most common when drawing up an act of services rendered, due to which the customer may have problems writing off expenses in tax accounting.

The date of the document was incorrectly indicated . The customer writes off the cost of services provided by third-party organizations as expenses as of the day on which the act is dated or on the last day of the reporting (tax) period. The corresponding rule is established in paragraph 2 and subparagraph 3 of paragraph 7 of Article 272 of the Tax Code of the Russian Federation. It is necessary to avoid situations where an act for services provided in one reporting period is signed only in the next (for example, for December - January). To do this, it is better to date the document on the last day of the month, regardless of when the work was accepted.

The content of the business transaction, the costs of which are confirmed by the act, is not clearly described . Depending on how detailed the contractor describes the actions performed or the result of the service, it will be easier for the customer to prove the connection of the expenses incurred with business activities. The services specified in the act must correspond to the goals and objectives set in the contract. It is better to avoid general formulations such as “services”, etc. After all, the inspectors are convinced: if the documents do not indicate what services the contractor provided to the company, the contract is considered not concluded and the expenses are considered unreasonable. It is unlikely that officials will be able to prove otherwise in pre-trial proceedings.

Arbitration practice on this issue is contradictory and only confirms the conclusion that it is better not to neglect the details of services in the act. Some judges admit that neither tax nor accounting legislation requires deciphering the services provided in the act (Resolution of the Federal Antimonopoly Service of the Moscow District dated August 25, 2009 No. KA-A40/7983-09). But there are cases decided in favor of the inspectors - resolution of the Federal Antimonopoly Service of the Ural District dated August 17, 2009 No. F09-5843/09-S2. Therefore, even if the actions of the contractor are described in detail in the contract or report, they need to be briefly duplicated in the act. Moreover, the contractor draws up a report on the work done if the corresponding obligation is provided for in the contract. The report is not a primary document.

And please note: the contents of the papers should indicate for what period or within what time frame the service was provided (Resolution of the Federal Antimonopoly Service of the Moscow District dated April 2, 2008 No. KA-A40/2402-08).

Business transaction indicators are not specified . Performers often indicate only the final cost of services in the act. Allegedly, services do not have a material expression, and therefore, units of measurement. But inspectors may not be convinced by this argument, as evidenced by established arbitration practice. Judges have repeatedly confirmed that it is not at all necessary to include meters in acts for services rendered (Resolution of the Federal Antimonopoly Service of the North-Western District dated April 29, 2009 No. A52-4324/2008). But in order to avoid litigation, it is still worth listening to the opinions of officials.

Performers must have price lists in which the cost of services depends on some physical indicators. For example, the cost of an hourly or one-time consultation with a certain specialist. And if the act indicates the price and volume of services, and not just their cost, it will be easier to confirm that the price corresponds to the market level, that is, to prove economic feasibility. The act must indicate the rate and amount of VAT (if the contractor is a payer of this tax), the amount of the advance credited upon receipt of the service, and the amount to be paid.

The positions and personal signatures of the responsible persons are not indicated . So that the inspectors do not doubt that the act was signed by authorized employees of the company, and on this basis the expenses are not withdrawn, it is mandatory to indicate the positions. In addition, employees signing the act must decipher their personal signatures.

Below we have provided a sample act of provision of services, drawn up without errors.

Limited Liability Company "Kontora" INN 7715123456, KPP 771501001 Address: Moscow, Elektrodnaya St., 7

Act on the provision of services under the contract dated January 23, 2013 No. 28/001

Moscow 08/31/2013

Limited liability company "Kontora", hereinafter referred to as the executor, represented by director Rusinova T.G., acting on the basis of the charter, on the one hand, and limited liability company "Denta+", hereinafter referred to as "Customer", represented by General Director G.A. Petrosyan, acting on the basis of the charter, on the other hand, drew up this act on the following. In accordance with contract No. 28/001 dated January 23, 2013, the Contractor provided the Customer with the following services:

In total, services were provided in the amount of: Four thousand seven hundred twenty rubles, including VAT 18% - Seven hundred twenty rubles.

Signatures of the parties:

Executor:

Director of Kontora LLC T.G. Rusinova

Customer:

General Director of Denta+ LLC G.A. Petrosyan

Documents from an unregistered organization

Situation: is it possible to take into account when calculating income tax expenses supported by documents issued on behalf of an organization not registered in the Unified State Register of Legal Entities?

No you can not.

According to regulatory agencies, expenses on documents drawn up on behalf of unregistered organizations cannot be taken into account when calculating income tax. This position is based on the following provisions:

• Article 153 of the Civil Code of the Russian Federation, according to which transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. An organization that is not registered in the Unified State Register of Legal Entities is not a legal entity. Therefore, actions performed with its participation are not considered transactions, and costs arising in the course of these actions are not recognized as expenses when calculating income tax;

• Article 252 of the Tax Code of the Russian Federation, according to which expenses must be confirmed by documents drawn up in accordance with the law. Documents issued by unregistered organizations do not meet this condition; therefore, they cannot be evidence of expenses incurred.

The courts confirm the legality of this approach. They recognize that documents issued on behalf of non-existent legal entities cannot confirm expenses that reduce taxable profit (see, for example, resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 31, 2011 No. 17649/10, dated April 19, 2011 No. 17648 /10, dated February 1, 2011 No. 10230/10, determinations of the Supreme Arbitration Court of the Russian Federation dated June 6, 2011 No. VAS-4338/11, dated July 16, 2009 No. VAS-8645/09, dated June 22, 2009 No. VAS-7288/09, resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District dated November 8, 2013 No. A38-92/2013, dated May 5, 2011 No. A43-14215/2010, dated April 28, 2011 No. A43-17064/2010 , West Siberian District dated January 18, 2013 No. A45-17992/2011, dated October 16, 2013 No. A27-20892/2012, East Siberian District dated February 2, 2011 No. A58-5163/2009).

Documents from an unscrupulous supplier

Situation: is it possible to take into account, when calculating income tax, the costs of purchasing goods (work, services), the supplier of which submits “zero” declarations to the tax office?

Yes, you can.

Conscientious fulfillment by the supplier of taxpayer obligations is not a prerequisite for recognizing expenses from the buyer (clause 1 of Article 252 of the Tax Code of the Russian Federation).

In themselves, violations committed by the organization’s counterparties (including distortion of tax reporting) are not grounds for accusing it of receiving an unjustified tax benefit (clause 10 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53) . If an organization actually purchased goods (work, services) for use in its activities, and the supplier did not reflect these operations in the reporting, then, if there are correctly executed primary documents, the inclusion of such expenses in the calculation of the tax base for income tax is legal (see, for example, resolution of the Federal Antimonopoly Service of the Moscow District dated May 10, 2007 No. KA-A40/3705-07, dated March 1, 2007 No. KA-A40/814-07, dated October 17, 2006 No. KA-A40/9769-06).

But if the tax inspectorate proves that in reality the goods (work, services) were not purchased, and the primary documents were drawn up to inflate expenses, then the organization may be accused of receiving an unjustified tax benefit (clause 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53). In this case, transactions made with the counterparty will be declared invalid, and the tax obligations arising from these transactions will be recalculated with fines and penalties.

Rationing of entertainment expenses

The law does not allow spending uncontrolled amounts for entertainment purposes, then writing them off, thereby reducing the income tax base. A strict limit has been established for this type of expense. It is prohibited to spend more than 4% of the wage fund for a given reporting period as representative funds (clause 2 of Article 264 of the Tax Code of the Russian Federation).

As labor costs increase over time, the ceiling on hospitality expenses also increases. If, for example, in the 1st quarter there were no entertainment events or the money spent on them was less than normal, then in the remaining quarters it will be possible to “freeze” and take into account more funds for this item. Naturally, we are talking only about the results of the current year.

How to prepare an advance report for entertainment expenses ?

You can calculate the required amount of restrictions on entertainment expenses in one of 3 ways.

Method 1 – quarterly. When filling out an income tax return at the end of each quarter, entertainment expenses are taken into account, taking into account the wage fund for that quarter. This method is more convenient for companies with a cash method of determining income and expenses. If entertainment expenses exceed a quarter, a deferred tax liability is formed, which can be reversed at the end of the year.

Method 2 – annual. Firms' annual budgets are usually not very different. This allows you, when planning the next year, to immediately allocate approximately 4% of last year’s wage fund to entertainment expenses, and then divide this amount into quarters. There will be no non-standard costs with this method, but you will have to constantly adjust the planned and actual indicators.

Method 3 – official. The company establishes which officials can be responsible for entertainment events and what maximum amounts they can spend on this. It is important that expenses are made exclusively for the stated purposes. A check will be required to ensure compliance with the 4% limit.

Documents issued abroad

Situation: how to confirm expenses for purchasing property abroad. Is the buyer a foreign representative office of a Russian organization? The property was registered by the head office of the organization in Russia.

You can confirm expenses incurred when purchasing property (work, services) abroad with documents drawn up in accordance with the business regulations of the country in which the transaction was made.

When purchasing property (works, services), such documents can be contracts, transfer deeds, invoices, as well as documents confirming that the seller (executor) has been paid off. In addition, to justify expenses incurred abroad, you can use documents that indirectly confirm the fact of expenses (customs declarations, travel orders, travel documents, etc.). This conclusion allows us to draw paragraph 1 of Article 252 of the Tax Code of the Russian Federation. In this case, documents drawn up in a foreign language must have a line-by-line translation into Russian (paragraph 3 of clause 9 of the Regulations on Accounting and Reporting). This is explained by the fact that official paperwork in all organizations is conducted in Russian as the state language of Russia (Clause 1, Article 16 of Law No. 1807-1 of October 25, 1991, Article 68 of the Constitution of the Russian Federation).

Similar clarifications are contained in letters of the Ministry of Finance of Russia dated February 16, 2009 No. 03-03-05/23, dated March 20, 2006 No. 03-02-07/1-66.

That the coming year?

Federal Law No. 58-FZ dated June 6, 2005 (read the commentary on the law here) amended paragraph 1 of Article 252 of the Tax Code of the Russian Federation.

In accordance with these changes, from January 1, 2006, documented expenses will be understood as expenses confirmed by documents drawn up in accordance with the legislation of the Russian Federation, or documents drawn up in accordance with business customs applied in a foreign country in whose territory the corresponding transactions were made expenses, and (or) documents indirectly confirming expenses incurred (including a customs declaration, business trip order, travel documents, report on work performed in accordance with the contract).

Thus, I really want to believe that starting next year taxpayers will have one less problem. As documents confirming expenses incurred, not only primary accounting documents drawn up in accordance with the requirements of Law No. 129-FZ, but also other documents indirectly confirming expenses incurred will have to be accepted. It should be noted that the list of such documents given in brackets in paragraph 1 of Article 252 of the Code is open.

As for disputes with tax authorities regarding expenses incurred before January 1, 2006, taxpayers should use the provisions of paragraph 6 of Article 108 of the Tax Code of the Russian Federation to prove their case and, in addition to primary accounting documents, provide the tax authorities (and, if necessary, judicial authorities) with other documents , directly or indirectly confirming the expenses incurred.

Documents drawn up in foreign currency

Situation: is it possible to take into account when calculating income tax expenses supported by documents drawn up in foreign currency?

Yes, you can.

Documents drawn up in foreign currency can confirm the organization’s expenses:

• for transactions within the framework of foreign trade contacts or abroad;

• for transactions made on the domestic market, if Russian legislation allows settlements between counterparties in foreign currency (Article 9 of Law No. 173-FZ of December 10, 2003).

In both cases, the organization has the right to recognize expenses that are confirmed by documents drawn up in foreign currency. The main thing is that these documents are drawn up either in accordance with the rules in force in foreign countries, or in accordance with Article 9 of the Law of December 6, 2011 No. 402-FZ.

When determining taxable profit, expenses expressed in foreign currency are subject to conversion into rubles (clause 5 of Article 252 of the Tax Code of the Russian Federation).

Documents without decrypted signatures

Situation: is it possible to take into account when calculating income tax expenses supported by documents that do not contain transcripts of official signatures?

No you can not.

The tax base for income tax is determined on the basis of primary accounting documents (Article 313 of the Tax Code of the Russian Federation). At the same time, the concept of “primary accounting documents” should be defined in accordance with the legislation on accounting (clause 1 of Article 11 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated April 5, 2005 No. 03-03-01-04/1/167).

Deciphering the signatures of the persons responsible for carrying out a business transaction is a mandatory requisite of the primary document (subclause 7, clause 2, article 9 of the Law of December 6, 2011 No. 402-FZ). Therefore, if the documents confirming the organization’s expenses do not contain transcripts of signatures, such expenses cannot be taken into account when calculating income tax.

The legitimacy of this position is supported in arbitration practice (see, for example, decisions of the FAS of the Far Eastern District dated August 4, 2006 No. Ф03-А73/06-2/2540 and dated May 31, 2006 No. Ф03-А73/06-2/ 1369, Northwestern District dated February 2, 2006 No. A13-1712/2005-28).

At the same time, there are examples of court decisions from which it follows that certain shortcomings in the preparation of primary documents do not entail an automatic refusal to recognize expenses (see, for example, resolutions of the Federal Antimonopoly Service of the Moscow District dated August 19, 2009 No. KA-A40/ 7963-09, North Caucasus District dated February 28, 2007 No. F08-721/2007-293A). In particular, in its resolution dated August 19, 2009 No. KA-A40/7963-09, the FAS Moscow District indicated that the lack of decoding of signatures in the acceptance certificate for work performed (if there is such a decoding in the contract for their implementation) cannot be grounds for exclusion costs of paying for work from the income tax base.

Documents directly confirming expenses

Documents that are well known to everyone will directly confirm expenses. Their necessity, and the very forms of many of them, are approved by law.

If the costs include the cost of materials, these are invoices for posting, a purchase and sale agreement (if it was concluded in writing), and invoices.

If the costs include certain services of a production nature, this is a contract and an act of their delivery and acceptance.

To document rental expenses, the following documents are required:

• concluded lease agreement (sublease);
• documents confirming the transfer of rent;
• act of acceptance and transfer of leased property.

But the monthly conclusion of acts of services rendered under a lease (sublease) agreement to confirm such expenses for income tax purposes is not required (letter of the Ministry of Finance of Russia dated March 25, 2022 No. 03-03-06/1/20067).

In addition, documents directly confirming expenses are documents drawn up in accordance with the legislation of the Russian Federation. And they can be found in regulations governing the contractual framework and the specifics of a particular industry. For example, legislation in the construction industry requires a certificate of the cost of work performed and expenses to be issued in form No. KS-3.

Despite the fact that Law No. 402-FZ on accounting allows the development and approval of “your own” primary accounting documents, the forms of primary documents that were introduced by authorized bodies on the basis of other federal laws are mandatory for use and are prohibited from changing.

Let's take a closer look at forwarding documents and documents for cargo transportation.

Document storage period

As a general rule, an organization must keep documents confirming expenses for at least four years (subclause 8, clause 1, article 23 of the Tax Code of the Russian Federation). At the same time, special storage rules are established for documents confirming:

• the amount of losses that the organization transfers to the future must be kept for the entire period of reduction of the tax base, but not less than four years (clause 4 of Article 283 of the Tax Code of the Russian Federation);

• expenses in the form of depreciation deductions, the four-year storage period for such documents must be counted from the end of depreciation in tax accounting.

Similar clarifications are contained in the letter of the Ministry of Finance of Russia dated April 26, 2011 No. 03-03-06/1/270.