Article 39 of the Tax Code of the Russian Federation. Sales of goods, works or services

Article 39 of the Tax Code of the Russian Federation. Sales of goods, works or services (current version)

The commented article is devoted to the question of which operations are recognized as implementation and which are not.

The provisions formulated in this article, as follows from their content, represent a general definition of the concept of sales of goods, works or services for tax purposes. In relation to each tax, the corresponding chapter of the second part of the Tax Code of the Russian Federation establishes its own concept of implementation.

For example, as a general rule, only a reimbursable transaction is recognized as a sale (clause 1 of Article 39 of the Tax Code of the Russian Federation). However, for the purposes of Chapter 21 of the Tax Code of the Russian Federation, which regulates VAT, the transfer of ownership of goods, results of work performed, and the provision of services free of charge are also recognized as the sale of goods (work, services) (subclause 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation).

But for profit tax purposes the situation is resolved differently. Since the gratuitous transfer of property (work, services) or property rights is not mentioned in Article 249 of the Tax Code of the Russian Federation, for the purposes of Chapter 25 of the Tax Code of the Russian Federation it is not recognized as a sale.

A similar position is set out in the letter of the Ministry of Finance of Russia dated September 28, 2012 N 03-03-06/1/510.

The Resolution of the Federal Antimonopoly Service of the Moscow District dated August 13, 2009 N KA-A40/7549-09 states that only in cases provided for by the Tax Code of the Russian Federation, the transfer of ownership of goods, the results of work performed by one person for another person, the provision of services by one person to another person for free of charge are recognized as sales.

An example is the norm of paragraph 1 of part 1 of Article 146 of the Tax Code of the Russian Federation. The provisions of Chapter 25 of the Tax Code of the Russian Federation do not provide for this rule, and therefore the gratuitous provision of services is not recognized as sales in the sense of Article 39 of the Tax Code of the Russian Federation, since the taxpayer does not have income taken into account when calculating profit and recognized as an object of taxation in the sense of Article 247 of the Tax Code of the Russian Federation. For a taxpayer, the provision of property for gratuitous use does not lead to the formation of income, since for these transactions it arises from the borrowing organization.

In the letter of the Ministry of Finance of Russia dated 04/06/2012 N 03-11-06/2/53 it is noted that the execution by the parties of a paid agreement is recognized as the sale of goods (works, services).

Previously, a similar conclusion was made in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 21, 2010 N 5812/10: the exchange of goods, which entailed the transfer of ownership of goods for a fee, is recognized as the sale of goods on the basis of Article 39 of the Tax Code of the Russian Federation.

As follows from the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2010 N 10659/10, making payments for services rendered by transferring the ownership of goods in kind to the plant, along with payment in cash, is recognized as the sale of goods within the meaning of paragraph 1 of Article 39 of the Tax Code of the Russian Federation.

According to the Ministry of Finance of Russia, set out in letter No. 03-03-06/1/32 dated January 28, 2011, the operation of selling a share in the authorized capital of a company transferred to the organization is recognized as the realization of property rights, and is not the receipt of a contribution to the authorized capital of the company.

In a letter dated 05/12/2012 N 03-03-06/1/242, the financial department explained that the transfer by an organization on a compensation basis (for compensation) of ownership of real estate is recognized as a sale, and the amount of compensation is recognized as income from the sale.

If there is no transfer of ownership, the amount of compensation is subject to accounting as part of non-operating income.

The letter of the Ministry of Finance of Russia dated 04/06/2012 N 03-11-06/2/51 states that, based on the provisions of Article 39 of the Tax Code of the Russian Federation, the transfer of fixed assets when changing ownership on the basis of a reorganization of a legal entity in the form of separation from the legal entity of one or of several legal entities is not recognized as the sale of goods (works, services).

In paragraph 9 of the Review of the practice of consideration by courts of cases related to the application of Chapter 23 of the Tax Code of the Russian Federation, approved by the Presidium of the Supreme Court of the Russian Federation on October 21, 2015, it is stated that since during the execution of an exchange agreement there is a paid transfer of ownership, this operation is in accordance with paragraph 1 of Article 39 of the Tax Code of the Russian Federation for tax purposes is recognized as the sale of property.

Comment source:

“ARTICLE-BY-ARTICLE COMMENTARY TO PART ONE OF THE TAX CODE OF THE RUSSIAN FEDERATION” (UPDATE)

Yu.M. Lermontov, 2016

Clause 3, Article 39 of the Tax Code of the Russian Federation

3. The following are not recognized as sales of goods, works or services:

1) carrying out operations related to the circulation of Russian or foreign currency (except for numismatic purposes);

2) transfer of fixed assets, intangible assets and (or) other property of the organization to its legal successor(s) during the reorganization of this organization;

3) transfer of fixed assets, intangible assets and (or) other property to non-profit organizations for the implementation of the main statutory activities not related to business activities;

(Clause 3 introduced by Federal Law dated 07/09/1999 N 154-FZ)

4) transfer of property, if such transfer is of an investment nature (in particular, contributions to the authorized (share) capital of business companies and partnerships, contributions under a simple partnership agreement (agreement on joint activities), an investment partnership agreement, share contributions to mutual funds of cooperatives) ;

(as amended by Federal Laws dated July 9, 1999 N 154-FZ, dated November 28, 2011 N 336-FZ)

4.1) transfer of property and (or) property rights under a concession agreement in accordance with the legislation of the Russian Federation;

(Clause 4.1 introduced by Federal Law dated June 30, 2008 N 108-FZ)

5) transfer of property within the limits of the initial contribution to a participant in a business company or partnership (his legal successor or heir) upon exit (disposal) from the business company or partnership, as well as when distributing the property of a liquidated business company or partnership between its participants;

(as amended by Federal Law dated July 9, 1999 N 154-FZ)

6) transfer of property within the limits of the initial contribution to a participant in a simple partnership agreement (joint activity agreement), investment partnership agreement or his legal successor in the event of the separation of his share from the property that is in common ownership of the parties to the agreement, or the division of such property;

(as amended by Federal Laws dated July 9, 1999 N 154-FZ, dated November 28, 2011 N 336-FZ)

7) transfer of residential premises to individuals in houses of the state or municipal housing stock during privatization;

(as amended by Federal Law dated July 9, 1999 N 154-FZ)

seizure of property by confiscation, inheritance of property, as well as the conversion into the property of other persons of ownerless and abandoned things, ownerless animals, finds, treasure in accordance with the norms of the Civil Code of the Russian Federation;

(as amended by Federal Law dated July 9, 1999 N 154-FZ)

8.1) became invalid as of January 1, 2022. — Federal Law of July 30, 2010 N 242-FZ;

8.2) transfer of property by the nominal owner to its actual owner, if such property and its nominal owner are indicated in a special declaration submitted in accordance with the Federal Law “On the voluntary declaration by individuals of assets and accounts (deposits) in banks and on amendments to certain legislative acts Russian Federation";

(Clause 8.2 introduced by Federal Law dated 06/08/2015 N 150-FZ)

9) other operations in cases provided for by this Code.

2) transfer, free of charge, of residential buildings, kindergartens, clubs, sanatoriums and other objects of social, cultural and housing and communal services, as well as roads, electrical networks, substations, gas networks, water intake structures and other similar objects to government bodies and bodies local government (or, by decision of these bodies, specialized organizations that use or operate these facilities for their intended purpose);

3) transfer of property of state and municipal enterprises purchased through privatization;

4) performance of work (provision of services) by bodies included in the system of state authorities and local self-government bodies, within the framework of the exercise of the exclusive powers assigned to them in a certain field of activity in the event that the obligation to perform the specified work (provision of services) is established by the legislation of the Russian Federation, legislation of the constituent entities of the Russian Federation, acts of local government bodies;

(as amended by Federal Law dated May 29, 2002 N 57-FZ)

4.1) performance of work (provision of services) by state institutions, as well as budgetary and autonomous institutions within the framework of a state (municipal) assignment, the source of financial support for which is a subsidy from the corresponding budget of the budgetary system of the Russian Federation;

(Clause 4.1 introduced by Federal Law dated July 18, 2011 N 239-FZ)

4.2) provision of services for granting the right of passage of vehicles on public toll roads of federal significance (toll sections of such highways), carried out in accordance with the trust management agreement for highways, the founder of which is the Russian Federation, with the exception of services for which payment is made for the provision remains at the disposal of the concessionaire in accordance with the concession agreement;

(Clause 4.2 introduced by Federal Law dated November 28, 2011 N 338-FZ)

5) transfer on a gratuitous basis, provision of services for the transfer for gratuitous use of fixed assets to state authorities and management bodies and local self-government bodies, as well as state and municipal institutions, state and municipal unitary enterprises;

(Clause 5 as amended by Federal Law dated July 19, 2011 N 245-FZ)

6) operations for the sale of land plots (shares in them);

(Clause 6 introduced by Federal Law of August 20, 2004 N 109-FZ)

7) transfer of the organization’s property rights to its legal successor(s);

(Clause 7 introduced by Federal Law dated July 22, 2005 N 118-FZ)

transfer of funds or real estate for the formation or replenishment of the endowment capital of a non-profit organization in the manner established by Federal Law of December 30, 2006 N 275-FZ “On the procedure for the formation and use of endowment capital of non-profit organizations”;

(Clause 8 as amended by Federal Law dated November 21, 2011 N 328-FZ)

8.1) transfer of real estate in the event of dissolution of the endowment capital of a non-profit organization, cancellation of a donation, or in another case, if the return of such property transferred to replenish the endowment capital of a non-profit organization is provided for by the donation agreement and (or) Federal Law of December 30, 2006 N 275- Federal Law “On the procedure for the formation and use of endowment capital of non-profit organizations.” The norm of this subparagraph is applied when such property is transferred by a non-profit organization - the owner of endowment capital to the donor, his heirs (successors) or another non-profit organization in accordance with Federal Law of December 30, 2006 N 275-FZ "On the procedure for the formation and use of endowment capital of non-profit organizations" ;

(clause 8.1 introduced by Federal Law dated November 21, 2011 N 328-FZ)

9) became invalid as of January 1, 2022. — Federal Law of December 1, 2007 N 310-FZ;

9.1) - 9.2) are no longer in force as of January 1, 2022. — Federal Law of July 23, 2013 N 216-FZ;

9.3) transfer of ownership, free of charge, to educational and scientific non-profit organizations for the implementation of statutory activities of 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;

(Clause 9.3 introduced by Federal Law dated December 29, 2015 N 396-FZ)

10) provision of services for the transfer for free use to non-profit organizations for the implementation of statutory activities of 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;

(Clause 10 introduced by Federal Law dated November 25, 2009 N 281-FZ)

11) performance of work (provision of services) as part of additional measures aimed at reducing tension in the labor market of the constituent entities of the Russian Federation, implemented in accordance with decisions of the Government of the Russian Federation;

(Clause 11 introduced by Federal Law dated 04/05/2010 N 41-FZ)

12) operations for the sale (transfer) on the territory of the Russian Federation of state or municipal property that is not assigned to state enterprises and institutions and constitutes 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 and constituting the municipal treasury of the corresponding urban, rural settlement or other municipal entity, purchased in the manner established by Federal Law of July 22, 2008 N 159-FZ “On the peculiarities of the alienation of real estate property that is state-owned by constituent entities of the Russian Federation or municipally owned and leased by small and medium-sized businesses, and on amendments to certain legislative acts of the Russian Federation";

(Clause 12 introduced by Federal Law dated December 28, 2010 N 395-FZ)

13) related to the implementation of activities provided for by the Federal Law “On the preparation and holding in the Russian Federation of the 2022 FIFA World Cup, the 2022 FIFA Confederations Cup and amendments to certain legislative acts of the Russian Federation”, operations for the sale of goods (works, services) ) and property rights of the Organizing Committee "Russia-2018", subsidiaries of the Organizing Committee "Russia-2018", the Russian Football Union, producers of FIFA media information and suppliers of goods (works, services) of FIFA, defined by the specified Federal Law and being Russian organizations;

(Clause 13 introduced by Federal Law dated June 7, 2013 N 108-FZ; as amended by Federal Law dated November 30, 2016 N 404-FZ)

14) sale by an autonomous non-profit organization created in accordance with the Federal Law “On the protection of the interests of individuals who have deposits in banks and separate structural divisions of banks registered and (or) operating in the territory of the Republic of Crimea and in the territory of the federal city of Sevastopol”, property and property rights and the provision by this organization of services to represent the interests of investors;

(Clause 14 introduced by Federal Law dated April 20, 2014 N 78-FZ)

15) operations for the sale of property and (or) property rights of debtors recognized as insolvent (bankrupt) in accordance with the legislation of the Russian Federation.

(Clause 15 introduced by Federal Law dated November 24, 2014 N 366-FZ)