Art. 161 of the Tax Code of the Russian Federation, new edition 2022: comments and changes

Clause 1 of Article 161 of the Tax Code of the Russian Federation

When selling goods (work, services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of these goods (work, services), taking into account tax
The tax base is determined separately for each transaction involving the sale of goods (work, services) on the territory of the Russian Federation, taking into account this chapter.

If the service is not electronic

In a commentary letter, the Russian Ministry of Finance explained another situation with foreign providers of electronic services. This is the case when such a foreign company, in addition to services in electronic form, provides other services to a Russian organization, the place of sale of which, on the basis of Article 148 of the Tax Code of the Russian Federation, is recognized as the territory of the Russian Federation.

The responsibility for calculating and paying VAT to the budget on these services also rests with the foreign organization. Therefore, a Russian organization purchasing the specified services from a foreign organization also does not have the obligation to pay VAT as a tax agent. This means that the registration of a foreign company with the Russian tax authority in connection with the provision of services in electronic form exempts Russian organizations from fulfilling the duties of a tax agent for VAT when they purchase from such a foreign company any services the place of sale of which is recognized as the territory of the Russian Federation.

Clause 2 of Article 161 of the Tax Code of the Russian Federation

The tax base specified in paragraph 1 of this article is determined by tax agents. In this case, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities that purchase goods (work, services) on the territory of the Russian Federation from foreign entities specified in paragraph 1 of this article, unless otherwise provided by paragraph 3 of Article 174.2 of this Code. Tax agents are obliged to calculate, withhold from the taxpayer and pay the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by this chapter. (As amended by Federal Laws dated December 29, 2000 No. 166-FZ; dated May 29, 2002 No. 57-FZ; dated July 3, 2016 No. 244-FZ; dated November 27, 2017 No. 335-FZ)

Foreign company – seller of electronic services

Foreign organizations that provide services in electronic form on the territory of the Russian Federation according to the list from paragraph 1 of Article 174.2 of the Tax Code of the Russian Federation and carry out settlements directly with buyers of these services are subject to registration with the tax authorities.

A foreign company must:

register with the Federal Tax Service (clause 4.6 of Article 83 of the Tax Code of the Russian Federation);
calculate VAT and pay it to the budget by the 25th day of the month following the reporting quarter;
report the VAT amounts to the Federal Tax Service (submit an electronic declaration).

The tax base of foreign companies is determined by the cost of services provided, which includes tax, based on the actual sales price on the last day of the quarter during which the recipient of the service paid for it.

An estimated interest rate of 16.67% is applied to the tax base.

Clause 3 of Article 161 of the Tax Code of the Russian Federation

When federal property, property of constituent entities of the Russian Federation and municipal property are leased out on the territory of the Russian Federation by government and administrative bodies, local self-government bodies, the tax base is determined as the amount of rent including tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, tax agents are the tenants of the specified property, with the exception of individuals who are not individual entrepreneurs. These persons are required to calculate, withhold from income paid to the lessor, and pay the appropriate amount of tax to the budget. (As amended by Federal Laws No. 57-FZ dated May 29, 2002; No. 83-FZ dated May 8, 2010; No. 330-FZ dated November 21, 2011; No. 424-FZ dated November 27, 2018)

When selling (transferring) on the territory of the Russian Federation state property that is not assigned to state enterprises and institutions, constituting the state treasury of the Russian Federation, the treasury of a republic within the Russian Federation, the treasury of a territory, region, federal city, autonomous region, autonomous district, as well as municipal property not assigned to municipal enterprises and institutions, constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, the tax base is determined as the amount of income from the sale (transfer) of this property, taking into account tax. In this case, the tax base is determined separately for each transaction involving the sale (transfer) of the specified property. In this case, tax agents are recognized as buyers (recipients) of the specified property, with the exception of individuals who are not individual entrepreneurs. These persons are required to calculate using the calculation method, withhold from paid income and pay the appropriate amount of tax to the budget. (Paragraph introduced - Federal Law of November 26, 2008 No. 224-FZ)

Features of determining the tax base for VAT by tax agents

author of the article Lawyer Oleg Viktorovich Pantyushov

In accordance with paragraph 1 of Article 146 of the Tax Code of the Russian Federation, the object of VAT taxation is the sale of goods (work, services) on the territory of the Russian Federation, including the sale of collateral and the transfer of goods (results of work performed, provision of services) under an agreement on the provision of compensation or novation , as well as transfer of property rights.

According to paragraph 1 of Article 154 of the Tax Code of the Russian Federation, the tax base when a taxpayer sells goods (work, services), unless otherwise provided by this article, is defined as the cost of these goods (work, services), calculated on the basis of prices determined in accordance with Article 105.3 of this Code , taking into account excise taxes (for excisable goods) and without including tax.

Paragraph 1 of Article 45 of the Tax Code of the Russian Federation establishes that the taxpayer is obliged to independently fulfill the obligation to pay tax, unless otherwise provided by the legislation on taxes and fees. According to paragraph 1 of Article 24 of the Tax Code of the Russian Federation, tax agents are persons who, in accordance with the said Code, are entrusted with the duties of calculating, withholding from the taxpayer and transferring taxes to the budget system of the Russian Federation. Thus, in paragraph 3 of Article 161 of the Tax Code of the Russian Federation, it is determined that when federal property, property of constituent entities of the Russian Federation and municipal property are provided on the territory of the Russian Federation by state authorities and local governments, the tax base is determined as the amount of the rent, taking into account the tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, the tax agents are the tenants of the specified property. These persons are required to calculate, withhold from income paid to the lessor, and pay the appropriate amount of tax to the budget.

At the same time, the procedure for paying VAT established by paragraph 3 of Article 161 of the Tax Code of the Russian Federation applies only in the case of lease of property by state authorities and management bodies, local government bodies. The Constitutional Court of the Russian Federation, in its ruling dated October 2, 2003 N 384-O, also clarified that the procedure for paying VAT established by paragraph 3 of Article 161 of the Tax Code of the Russian Federation applies in the case of leasing public property that is not assigned the right of economic management or operational management to state unitary enterprises or institutions, that is, constituting the state treasury, with the direct participation of public owners in civil legal relations.

“As the courts have justifiably indicated, in the case under consideration, the lessor is the balance holder of the property, which does not belong to state authorities and management bodies, local governments, therefore, the tenants of the property do not have the duties of tax agents, and the responsibility for calculating and paying VAT rests directly with the University” - Resolution of the Federal Antimonopoly Service of the North-Western District of June 5, 2014 in case No. A05-8053/2013. Due to the universality, mandatory nature of taxation and equality of participants in tax legal relations, and also taking into account that, on the basis of Article 50 of the Budget Code of the Russian Federation and Article 12 of the Tax Code, value added tax is recognized as a federal tax obligatory for payment to the federal budget, non-payment of value added tax is unacceptable the cost of operations for the sale of the said property, depending on which person is acquiring it. “Analyzing these norms when considering a case with factual circumstances similar to the present case, the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution dated April 17, 2012 N 16055/11 concluded that when selling municipal property not assigned to municipal enterprises and institutions, constituting treasury of a municipality, for individuals who do not have the status of an individual entrepreneur, the obligation to transfer the amount of value added tax to the federal budget rests with the seller of such property” - Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 8, 2014 N 17383/13.

The legislator, having established the regulation provided for in subparagraph 3 of paragraph 2 of Article 146, paragraph 3 of Article 161 of the Tax Code of the Russian Federation, recognized the sale of municipal property that is not assigned to municipal enterprises and institutions, constituting the treasury of the municipality, as an operation subject to VAT. Due to the specific nature of the subjects of legal relations participating in transactions for the sale of municipal property that makes up the municipal treasury of a municipal entity, the obligation to pay VAT on the basis of paragraph 3 of Article 161 of the Tax Code of the Russian Federation is assigned to buyers (recipients) of this property, who are recognized as tax agents (with the exception of individuals who are not individual entrepreneurs).

Clause 4 of Article 161 of the Tax Code of the Russian Federation

When selling on the territory of the Russian Federation confiscated property, property sold by court decision (except for the sale provided for in subparagraph 15 of paragraph 2 of Article 146 of this Code), ownerless valuables, treasures and purchased valuables, as well as valuables transferred by right of inheritance to the state, the tax the base is determined based on the price of the property (valuables) being sold, determined taking into account the provisions of Article 105.3 of this Code, taking into account excise taxes (for excisable goods). In this case, tax agents are recognized as bodies, organizations or individual entrepreneurs authorized to sell the specified property. (Item introduced by Federal Law No. 57-FZ dated May 29, 2002; as amended by Federal Laws No. 117-FZ dated July 7, 2003; No. 119-FZ dated July 22, 2005; No. 224-FZ dated November 26, 2008; July 18, 2011 No. 227-FZ; dated July 19, 2011, No. 245-FZ; dated November 24, 2014, No. 366-FZ)

Clause 5 of Article 161 of the Tax Code of the Russian Federation

When selling goods, transferring property rights, performing work, providing services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, tax agents are recognized as organizations and individual entrepreneurs who are registered with the tax authorities as taxpayers. activities involving participation in settlements based on agency agreements, commission agreements or agency agreements with specified foreign persons, unless otherwise provided by paragraph 10 of Article 174.2 of this Code. In this case, the tax base is determined by the tax agent as the cost of such goods (work, services), property rights, taking into account excise taxes (for excisable goods) and without including the amount of tax. (Clause introduced - Federal Law No. 119-FZ dated July 22, 2005; as amended by Federal Laws No. 224-FZ dated November 26, 2008; No. 244-FZ dated July 3, 2016)

UrDela.ru

Part 1. When selling goods (work, services), the place of sale of which is the territory of the Russian Federation, by taxpayers - foreign persons who are not registered with the tax authorities as taxpayers, the tax base is determined as the amount of income from the sale of these goods (work, services) including tax.

The tax base is determined separately for each transaction involving the sale of goods (work, services) on the territory of the Russian Federation, taking into account this chapter.

Part 2. The tax base specified in paragraph 1 of this article is determined by tax agents. In this case, tax agents are recognized as organizations and individual entrepreneurs registered with the tax authorities, purchasing goods (work, services) on the territory of the Russian Federation from foreign entities specified in paragraph 1 of this article. Tax agents are obliged to calculate, withhold from the taxpayer and pay the appropriate amount of tax to the budget, regardless of whether they fulfill the taxpayer’s obligations related to the calculation and payment of tax, and other obligations established by this chapter.

The provisions of paragraph 3 of Article 161 also apply when transferring property rights carried out starting from January 1, 2009.

Part 3. When federal property, property of constituent entities of the Russian Federation and municipal property are provided for lease on the territory of the Russian Federation by state authorities and management bodies and local self-government bodies, the tax base is determined as the amount of rent including tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, the tax agents are the tenants of the specified property. These persons are required to calculate, withhold from income paid to the lessor, and pay the appropriate amount of tax to the budget.

The provisions of paragraph 4 of Article 161 also apply when transferring property rights carried out starting from January 1, 2009.

Part 4. When selling confiscated property or property sold by court decision on the territory of the Russian Federation. In this case, tax agents are recognized as bodies, organizations or individual entrepreneurs authorized to sell the specified property.

The provisions of paragraph 5 of Article 161 also apply when transferring property rights carried out starting from January 1, 2009.

Part 5. When selling goods, transferring property rights, performing work, providing services on the territory of the Russian Federation by foreign persons who are not registered with the tax authorities as taxpayers, tax agents are recognized as organizations and individual organizations registered with the tax authorities as taxpayers entrepreneurs carrying out business activities with participation in settlements based on agency agreements, commission agreements or agency agreements with specified foreign persons. In this case, the tax base is determined by the tax agent as the cost of such goods (work, services), property rights, taking into account excise taxes (for excisable goods) and without including the amount of tax.

Part 6. If, within ten years from the date of registration of the ship in the Russian International Register of Ships, it is excluded from the specified register, except for exclusion due to the recognition of the ship as lost, missing, constructively lost, or having lost the quality of the ship as a result of restructuring or any other changes , or if within 45 calendar days from the moment of transfer of ownership of the vessel from the taxpayer to the customer, registration of the vessel in the Russian International Register of Ships is not carried out, the tax base is determined by the tax agent as the cost at which this vessel was sold to the customer, taking into account tax.

In this case, the tax agent is the person who owns the vessel at the time of its exclusion from the Russian International Register of Ships, if the vessel is excluded from the said register, or if the vessel is registered within 45 calendar days from the date of transfer of ownership of the vessel from the taxpayer to the customer in the Russian International Register of Ships has not been carried out, by the person who owns the ship after 45 calendar days from the date of such transfer of ownership.

The tax agent is obliged to calculate the corresponding amount of tax at the tax rate provided for in paragraph 3 of Article 164 of this Code, withhold it from the taxpayer and transfer it to the budget.
‹ Article 160 (Tax Code of the Russian Federation). The procedure for determining the tax base when importing goods into the customs territory of the Russian Federation Up Article 162 (Tax Code of the Russian Federation). Features of determining the tax base taking into account amounts associated with payments for goods (works, services) ›

Clause 5.1 of Article 161 of the Tax Code of the Russian Federation

When Russian carriers in railway transport on the territory of the Russian Federation carry out business activities in the interests of another person on the basis of agency agreements, commission agreements or agency agreements providing for the provision of services for the provision of railway rolling stock and (or) containers (except for the cases provided for in subclauses 2.1 and 2.7 of paragraph 1 of Article 164 of this Code), Russian railway carriers are recognized as tax agents. In this case, the tax base is determined by the tax agent as the cost of the specified services without including the amount of tax. (Clause introduced - Federal Law dated 03.08.2018 No. 302-FZ)

Clause 6, Article 161 of the Tax Code of the Russian Federation

If, within forty-five calendar days from the date of transfer of ownership of the vessel from the taxpayer to the customer, the registration of the vessel in the Russian International Register of Ships is not carried out, the tax base is determined by the tax agent as the cost at which this vessel was sold to the customer, taking into account tax .

In this case, the tax agent is the person who owns the vessel after forty-five calendar days from the date of such transfer of ownership.

The tax agent is obliged to calculate the appropriate amount of tax at the tax rate provided for in paragraph 3 of Article 164 of this Code and transfer it to the budget.

(Clause introduced - Federal Law dated December 20, 2005 No. 168-FZ; as amended by Federal Law dated November 7, 2011 No. 305-FZ)

Comments on the article

Analysis of the rules of paragraph 1 of Art. 161 leads to a number of important conclusions:

they apply only to cases of sale of goods (work, services): they also apply to cases of taxation of VAT on the import of goods (work, services) into the customs territory of the Russian Federation, as well as goods (work, services) for one’s own needs (see the differences between them there is no detailed commentary on Articles 146, 150, 159 of the Tax Code;
the place of sale (mentioned in Article 161) is determined according to the rules of Art. 147 NK (see commentary to them);
Taxpayers - foreign persons (mentioned in Article 161) are:
they should be applied taking into account the rules of paragraph 2 of Art. 144 of the Tax Code (that foreign organizations have the right (but not the obligation!) to register with the tax authority at the location of their representative offices in the Russian Federation (upon a written application from a foreign organization, see the detailed commentary on this to Article 144 of the Tax Code) In the event that a foreign organization has not registered for tax purposes at the location of its representative office in the Russian Federation, it must be guided by the rules of Article 161;
any foreign persons who have not registered for tax purposes with the Russian tax authorities are subject to the rules of paragraph 1 of Art. 161;
in accordance with them, when selling goods (work, services) on the territory of the Russian Federation by foreign entities, the tax base is determined:

foreign organizations that have the status of a legal entity under the laws of the relevant state;
any foreign companies, corporate entities (including those that are not legal entities), possessing civil legal capacity, created in accordance with the legislation of a foreign state;
international organizations and associations;
branches and representative offices of foreign and international organizations established outside the Russian Federation;
foreign individuals, incl. and persons with dual citizenship, stateless persons permanently residing outside the Russian Federation (Article NK). We are also talking about foreign citizens carrying out individual entrepreneurial activities;
as the amount of income from the sale of these goods (works, services) (in this case, income should be determined based on the rules of Art., Tax Code).

Due to the fact that the chapter of the Tax Code on the tax on profit (income) of organizations has not yet been adopted, prior to its adoption it is necessary to proceed from the norms of the current Law on profit tax (on what is recognized as income of an organization), this is directly provided for in Art. Law No. 118). The indicated income is accepted taking into account VAT (i.e., including the amount of this tax in income);

separately when performing each operation (if there are several of them or if different goods (work, services) are sold for the sale of goods (work, services). In this case, it is necessary to be guided by all the rules of Chapter 21 of the Tax Code (in particular, the rules of Article 154 of the Tax Code, see commentary ).

Applying the rules of paragraph 2 of Art. 161, you need to pay attention to the following:

they must be applied taking into account the rules of Art. NK that:
rules clause 2 art. 161 significantly clarify the general rules on tax agents established in Art. 24 NK. It is provided, in particular, that tax agents:

Tax agents are persons who, in accordance with the Tax Code, are entrusted with the responsibility for calculating and withholding taxes from the taxpayer;
tax agents are required to inform the tax authority at the place of their tax registration in writing within 1 month about the impossibility of withholding tax and the amount of tax debt;
tax agents transfer withheld taxes in the manner established for taxpayers;
tax agents are required to submit to the tax authority at the place of their registration the documents necessary to monitor the correctness of calculation, withholding and transfer of taxes;
for failure to fulfill or improper performance of his duties, the tax agent is liable in accordance with the law (in particular, under Article 123 of the Tax Code);

a) persons are recognized as tax agents (i.e., both Russian legal entities and foreign organizations registered for tax purposes in the Russian Federation in accordance with Articles 86, 143, 144 of the Tax Code, and foreign citizens, including those engaged in business activities, and Russian individual entrepreneurs) registered for tax purposes in the territory of the Russian Federation;

b) tax agents are also recognized as persons who purchased goods (work, services) (most often through paid contracts, for example, purchase and sale, barter, paid services, etc.), although sometimes this also happens on a gratuitous basis (for example, under a gift agreement) on the territory of the Russian Federation of goods (works, services) from foreign persons;

c) are obliged to calculate, withhold from the taxpayer (unfortunately, in this case, too, an inaccuracy has crept into the Tax Code: the fact is that, in accordance with the rules of Article 144 of the Tax Code, only foreign organizations that have registered for tax purposes at the location of their representative offices in the Russian Federation, are VAT payers, but the latter themselves must fulfill the duties of a VAT payer. It is necessary to eliminate this contradiction between the norms of Article 144 and Article 161 of the Tax Code) and pay (most often by transfer, and in the cases specified in Art., Tax Code, by depositing taxes in cash) to the budget the corresponding amount of VAT;

d) tax agents must fulfill these duties regardless of whether they themselves fulfill the duties of a VAT taxpayer (it is quite possible that, in accordance with the rules of Article 145 of the Tax Code (see commentary), they are exempt from performing such duties or other duties specified in the norms Chapter 21 of the Tax Code, for example, in Articles 144 - 157 of the Tax Code, see detailed commentary on them).

Specifics of the rules of paragraph 3 of Art. 161 is that:

they apply only to the extent that services are sold (and not goods or results of work performed);
they cover cases of such operations as leasing (of course, it is not entirely legal to speak, from the point of view of the norms of Chapter 34 of the Civil Code, about “services for leasing” (see more about this in the book: Guev A.N. Article-by-article commentary to Part 2 of the Civil Code of the Russian Federation (ed. 3). pp. 196 - 269; 394 - 397); in connection with such a contradiction between the norms of the Civil Code and Article 161 of the Tax Code, until it is eliminated by the legislator, the norms of Article 161 of the Tax Code ( Article 2 of the Civil Code, Article 2 of the Tax Code), because in this case they have (only for tax purposes!) priority):

a) federal property. This is carried out by bodies of the Ministry of Property and other federal executive bodies vested with the authority to dispose (including by leasing) such property (including real estate);

b) property of constituent entities of the Russian Federation. This is carried out by property management bodies of the constituent entities of the Russian Federation, other authorized executive authorities of the constituent entities of the Russian Federation;

c) municipal property. It is leased by the relevant local governments;

they ordered that the tax base be determined as the amount of rent (it is established based on the terms of the lease agreement, and if such an amount is not established in the agreement, then the amount of rent must be determined based on the norms of Articles 424, 614 of the Civil Code and Art. Tax Code) with the inclusion This amount also includes VAT amounts. In this case, the tax base must be determined separately for each leased property;
They provided that the tax agents in this case would be the tenants (i.e., organizations and individual entrepreneurs). They are responsible for calculating, withholding (from amounts to be transferred to the lessor) and paying the corresponding amount of VAT to the budget.

See also commentary to Art. 154 and art. 163, 164 NK.

For judicial practice, see: Bulletin of the Supreme Arbitration Court. 2000. N 7. P. 7; N 8. P. 6.

Clause 7, Article 161 of the Tax Code of the Russian Federation

For the purposes of this article, organizations that are foreign organizers of the XXII Olympic Winter Games and are not recognized as tax agents purchasing goods (work, services), property rights on the territory of the Russian Federation for the purposes of organizing and holding the XXII Olympic Winter Games and the XI Paralympic Winter Games of 2014 in the city of Sochi. and the XI Paralympic Winter Games 2014 in the city of Sochi in accordance with Article 3 of the Federal Law of December 1, 2007 No. 310-FZ “On the organization and holding of the XXII Olympic Winter Games and the XI Paralympic Winter Games 2014 in the city of Sochi, the development of the city of Sochi as a mountain climatic resort and amendments to certain legislative acts of the Russian Federation", foreign marketing partners of the International Olympic Committee, including official broadcasting companies, in accordance with Article 3.1 of the said Federal Law, and branches, representative offices in the Russian Federation of foreign organizations that are marketing partners International Olympic Committee, including official broadcasters, in accordance with Article 3.1 of the said Federal Law. (The clause was introduced by Federal Law No. 216-FZ of July 23, 2013, the provisions of the clause apply until January 1, 2022)