Losses in heat supply networks and VAT. Compensation for losses in the form of the cost of heat energy losses. income tax

ARBITRATION COURT OF THE SVERDLOVSK REGION

620075 Yekaterinburg, st. Shartashskaya, 4,

www.ekaterinburg.arbitr.ru e-mail: [email protected]

In the name of the Russian Federation

SOLUTION

The Arbitration Court of the Sverdlovsk Region, composed of Judge E.V. Bushuyeva, while maintaining the minutes of the court session by Assistant Judge M.A. Merinova, considered case No. A60-8786 / 2016 on the application

Nizhny Tagil municipal unitary enterprise "Gorenergo" (TIN 6623053107)

to the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region (TIN 6623000850)

on the annulment of the decision,

when participating in a court session:

from the applicant: T.V. Ulitina, representative under power of attorney No. b / n dated 08/06/2015; S.P. Golovkov, lawyer at the written request of T.V. Ulitina in the order of substitution of 03.28.2016

on behalf of the interested party: I.B. Belevich, representative by power of attorney dated 22.09.2015 No. 07-19/16794, I.V. Emelyanova, representative by power of attorney dated 04.12.2015 No. 07-19/21932, E.I. Gordienko, representative by power of attorney dated September 28, 2015 No. 07-19/17142.

Procedural rights and obligations are clarified. No challenge to the composition of the court was announced. No applications or applications were received.

Nizhny Tagil Municipal Unitary Enterprise Gorenergo (hereinafter referred to as the applicant, NT MUP Gorenergo) applied to the Arbitration Court of the Sverdlovsk Region with an application to the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region (hereinafter referred to as the person concerned, tax authority) to invalidate the decision dated 08.10.2015 No. 18803/15 on the refusal to partially reimburse the value added tax in the amount of 11511310 rubles. 00 kopecks, the corresponding part of the penalty and the fine.

The applicant clarified the stated requirements in accordance with the article of the Arbitration Procedure Code of the Russian Federation and asks to invalidate the decisions of 08.10.2015 No. 18803/15 on the refusal to partially reimburse the value added tax in the amount of 11511310 rubles. 00 kopecks, the corresponding part of the penalty and fine, the decision of 08.10.2015 No. 18802/15 on the refusal to hold liable for committing a tax offense in part of the refusal to refund value added tax in the amount of 11,511,310 rubles. 00 kopecks, the corresponding part of the penalty and the fine.

The interested person has submitted a review, asks to refuse to satisfy the stated requirements.

Having considered the case file, the arbitral tribunal

SET UP:

The interested party conducted a desk tax audit of the amended tax declaration for value added tax (hereinafter referred to as VAT) for the 4th quarter of 2014, submitted by the applicant on 13.05.2015.

In the revised tax return for the 4th quarter of 2014, the total amount of VAT claimed for reimbursement amounted to 16,189,321 rubles. 00 kop.

In the course of a desk tax audit, the interested person checked the validity of the declared tax deductions for VAT.

Based on the results of a desk tax audit by the tax authority, the amount of tax claimed for reimbursement was partially confirmed, namely, in the amount of 4,678,011 rubles. (decision on the partial refund of the amount of VAT claimed for reimbursement dated 24.08.2015 No. 18127/15).

The audit established the unlawful presentation by the applicant for VAT refund for the 4th quarter of 2014 in the amount of 11,511,310 rubles.

In the submitted tax return, the taxpayer declared the tax base in the amount of 322386836 rubles, VAT was calculated in the amount of 58029630 rubles.

In the course of a desk tax audit, the tax base for the sale of goods (works, services) was established in the amount of 386338556 rubles, VAT was calculated for payment to the budget in the amount of 69540940 rubles.

Thus, the interested person found that the applicant underestimated the tax base for the sale of goods (works, services) in the amount of 63951720 rubles, incomplete payment of VAT amounted to 11511310 rubles.

The results of the audit were formalized by the act of tax audit dated August 27, 2015 No. 29191/15.

Based on the results of the audit, the interested person issued a decision dated 08.10.2015 No. 18803/15 on the refusal to partially reimburse the value added tax in the amount of 11511310 rubles, a decision on refusal to hold liable for committing a tax offense dated 08.10.2015 No. 18802/15, which established the unlawful presentation for reimbursement from the budget of value added tax for the 4th quarter of 2014 in the amount of 11,511,320 rubles. as a result of unlawful actions of the taxpayer, expressed in the underestimation of the tax base.

The basis for these decisions was the conclusions of the interested person that the applicant unreasonably included in the VAT deductions the economic unjustified costs of technological losses in excess of the norm, resulting from the transfer to end consumers of heat energy purchased earlier from the supplier. This thermal energy was not presented to the buyers in full and was not used for profit, that is, it was not used for activities subject to VAT.

The applicant, not agreeing with the said decisions, appealed against them to the Federal Tax Service Administration for the Sverdlovsk Region.

By the decision of the Office of the Federal Tax Service of Russia for the Sverdlovsk Region dated November 30, 2015 No. 1409/15, the decisions of the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region dated October 08, 2015 No. 18802/15, October 08, 2015 No. 18803/15 were left unchanged.

Believing that the decisions of 08.10.2015 No. 18802/15, 08.10.2015 No. 18803/15 do not comply with the provisions of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation, the Code), violate the rights and interests of the applicant, the latter applied to the Arbitration Court of the Sverdlovsk Region.

Having examined the materials of the case, the court recognizes the application as subject to satisfaction on the following grounds.

In this case, there is a transfer on a reimbursable basis of ownership of heat energy purchased in order to compensate for losses, as a necessary component of material costs for the company to carry out activities for the transmission of heat energy, which is an object of VAT taxation in accordance with the article of the Tax Code, therefore, the taxpayer reasonably exercised the right to deduct VAT.

Since heat transmission services are transactions subject to value added tax, and the purchase of heat energy to compensate for excess losses in networks is directly related to this activity and is carried out by virtue of a direct indication of the law, the grid organization has the right to deduct VAT presented by the energy supplier.

These conclusions are consistent with the legal position set out in the ruling of the Supreme Court of the Russian Federation dated July 29, 2015 in case No. 303-KG15-1752.

At the same time, the court notes that the decision of the Seventeenth Arbitration Court of Appeal dated 06.05.2016 No. 17-AP-3896/2016-AK established similar factual circumstances and satisfied the requirements of NT MUP Gorenergo to invalidate the decision of the person concerned.

The reference of the interested person to clause 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33 “On certain issues arising from arbitration courts when considering cases related to the collection of value added tax” is not accepted by the court, since its provisions do not apply to disputed relationships.

Thus, the contested decisions are unlawful, as contrary to substantive law and violating the rights of the taxpayer.

Based on the foregoing, the stated requirements are subject to satisfaction in full.

In accordance with Art. of the Arbitration Procedure Code of the Russian Federation, court costs for the payment of the state fee are subject to recovery from the person concerned in favor of the applicant.

Guided by articles, -, Section III. Proceedings in the Arbitration Court of First Instance in Cases Arising from Administrative and Other Public Legal Relations > Article 201. The decision of the arbitration court in the case of contesting non-normative legal acts, decisions and actions (inaction) of bodies exercising public powers, officials" target="_blank"> 201 Arbitration Procedure Code of the Russian Federation , court of Arbitration

I DECIDED:

1. Satisfy the stated requirements.

2. To invalidate the decision of the Interdistrict Inspectorate of the Federal Tax Service No. 16 for Sverdlovsk of October 8, 2015 No. 18803/15, the decision of the Interdistrict Inspectorate of the Federal Tax Service No. 16 for Sverdlovsk of October 8, 2015 No. offenses regarding refusal to refund value added tax in the amount of 11511310 RUB. 00 kopecks, corresponding penalties and fines.

Oblige the Interdistrict Inspectorate of the Federal Tax Service No. 16 for Sverdlovsk to eliminate the violations of the rights and legitimate interests of the Nizhny Tagil Municipal Unitary Enterprise Gorenergo (TIN 6623053107).

3. In order to allocate court costs, collect from the Interdistrict Inspectorate of the Federal Tax Service No. 16 for the Sverdlovsk Region (TIN 6623000850) in favor of the Nizhny Tagil Municipal Unitary Enterprise Gorenergo (TIN 6623053107) the costs of paying the state fee in the amount of 6,000 rubles. 00 kop.

4. The decision in the present case shall enter into force upon the expiration of one month from the date of its adoption, unless an appeal is filed. If an appeal is filed, the decision, unless it is canceled or amended, shall enter into force from the date of adoption of the decision of the arbitration court of the appellate instance.

5. The decision may be appealed on appeal to the Seventeenth Arbitration Court of Appeal within one month from the date of the decision (making it in full).

An appeal is filed with the arbitration court of the appellate instance through the arbitration court that made the decision. An appeal may also be filed by filling out a form posted on the official website of the arbitration court on the Internet http://ekaterinburg.arbitr.ru.

In the event of an appeal against the decision on appeal, information on the time, place and results of the consideration of the case can be obtained on the website of the Seventeenth Arbitration Court of Appeal http://17aas.arbitr.ru.

Judge E.V. Bushuyeva

Court:

Plaintiffs:

Respondents:

Answer: In our opinion, the grid organization has the right to deduct the VAT presented by the electricity supplier when purchasing electricity in order to compensate for technological losses during its transmission through electric networks.

Rationale: The object of taxation for VAT, among other things, is the sale of goods (works, services) on the territory of the Russian Federation, including the sale of collateral and the transfer of goods (results of work performed, the provision of services) under an agreement on the provision of compensation or innovation, as well as the transfer of property rights (clause 1 clause 1 article 146 of the Tax Code of the Russian Federation).

The taxpayer has the right to reduce the total amount of tax calculated in accordance with Art. 166 of the Tax Code of the Russian Federation, to the established Art. 171 of the Tax Code of the Russian Federation tax deductions (clause 1 of article 171 of the Tax Code of the Russian Federation).

In this case, deductions, in particular, are subject to the amounts of tax presented to the taxpayer upon the acquisition of goods (works, services) in the territory of the Russian Federation, in respect of goods (works, services) acquired for the implementation of operations recognized as objects of taxation in accordance with the Tax Code of the Russian Federation, for except for the goods provided for in paragraph 2 of Art. 170 of the Tax Code of the Russian Federation (clause 2 of article 171 of the Tax Code of the Russian Federation).

These tax deductions are made on the basis of invoices issued by sellers when the taxpayer purchases goods (works, services) (clause 1, article 172 of the Tax Code of the Russian Federation).

In accordance with paragraph 3 of Art. 32 of the Federal Law of March 26, 2003 N 35-FZ "On the Electric Power Industry", the amount of electrical energy losses not taken into account in the prices for electrical energy is paid by the grid organizations in whose networks they occurred, in the manner established by the rules of the wholesale and (or) retail markets. At the same time, grid organizations are obliged to conclude, in accordance with the specified rules, contracts for the purchase and sale of electrical energy in order to compensate for losses within the amount not taken into account in the prices for electrical energy.

According to paragraph 4 of the Basic Provisions for the Functioning of Retail Electricity Markets, approved by Decree of the Government of the Russian Federation of 04.05.2012 N 442 "On the functioning of retail electric energy markets, full and (or) partial restriction of the mode of consumption of electric energy", grid organizations that purchase electric energy ( power) in the retail markets for their own (economic) needs and in order to compensate for the loss of electrical energy in the power grid facilities they own or otherwise legally own, act as consumers.

According to the explanations of the Federal Tax Service of Russia in the Letter dated 03.10.2014 N GD-4-3 / [email protected], since electricity transmission services are transactions subject to VAT, and the purchase of electricity to compensate for excess losses in networks is directly related to this activity and is carried out by virtue of a direct indication of the law, the grid organization has the right to deduct VAT presented by the electricity supplier.

Arbitration courts adhere to a similar position. Thus, in the Decree of the Federal Antimonopoly Service of the West Siberian District dated July 17, 2007 N F04-4766 / 2007 (36332-A46-25), it is noted that the use of electricity in technological processes is inevitably associated with its losses in the process of consumption. Thus, payment for losses arising from the transmission of electricity for production needs was a necessary payment for the purchase of energy spent for technological purposes. The costs of paying for electricity losses were economically justified, in connection with which the company reasonably included VAT in tax deductions.

A similar position is indicated in the Resolutions of the Federal Antimonopoly Service of the North Caucasus District dated March 13, 2014 N A32-34138 / 2012, the Federal Antimonopoly Service of the Ural District dated December 8, 2010 N F09-10415 / 10-C2, dated January 24, 2008 N F09-11482 / 07-C2.

At the same time, the Supreme Arbitration Court of the Russian Federation takes the opposite position. Thus, in the Ruling of the Supreme Arbitration Court of the Russian Federation dated April 24, 2014 N VAC-996/14, the court came to the conclusion that the electric grid organization unlawfully deducted VAT attributable to the payment of actual losses of electric energy in electric networks during its transportation. Despite the fact that grid organizations pay both the cost of the supplied electric energy and their actual losses arising in the network facilities they own, by virtue of clause 2 of Art. 171 of the Tax Code of the Russian Federation, VAT can be deducted only in the event of subsequent resale of the purchased goods or in relation to goods purchased for transactions subject to VAT. In the absence of further sale of a part of the purchased electricity in the form of its losses in value terms, there is no object of value added taxation, therefore, acceptance for VAT deduction is impossible.

Nevertheless, in our opinion, the grid organization has the right to deduct the VAT presented by the electricity supplier when purchasing electricity to compensate for technological losses during its transmission through electric networks.

Is a grid organization entitled to deduct VAT amounts paid on the purchase of electricity in order to compensate for technological losses that occur during its transmission through electric networks?

Hope asks:

The apartment building has an autonomous heating system - a boiler room. It belongs to our organization. In the specified house there are non-residential premises, which also belong to us on the right of ownership.
The organization does not have the status of a heat supply organization, and we do not sell heat energy. We entered into an agreement with a house management company, under the terms of which this company compensates us for the costs associated with providing the building (common property and residential premises) with thermal energy. Compensation is determined in a fixed amount.
Do we understand correctly that it is possible not to impose VAT on the amounts of compensation received from the management company? After all, if we did not have a contractual relationship with the management company, then the amounts recovered by the court from the residents of the house for the heat consumed, as unjust enrichment, would not be subject to VAT.

According to sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation, the tax base for VAT increases by amounts received for goods (works, services) sold, in the form of financial assistance, to replenish special-purpose funds, by increasing income or otherwise related to payment for goods (works, services) sold. Thus, it does not matter how the relationship between the parties is documented. For VAT purposes, the main thing is that there should be a fact of sale of goods (works, services) and payment should be associated with this sale.

It follows from the terms of the concluded contract that the organization receives compensation for the costs associated with providing thermal energy to the entire building. That is, residents of an apartment building consume thermal energy produced in a boiler organization. For the purposes of taxation, a service is recognized as an activity, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity (clause 5, article 38 of the Tax Code of the Russian Federation). Consequently, the organization provides tenants with a service for the heat supply of their apartments.

The provision of services by one person to another person on a reimbursable or non-reimbursable basis is considered a sale (clause 1, article 39 of the Tax Code of the Russian Federation). In the situation under consideration, the building heat supply service is paid. After all, for the generation of energy consumed by residents, the company receives compensation. Thus, the organization actually sells thermal energy to residents and is a heat supply organization for them (clause 11, article 2 of the Federal Law of July 27, 2010 No. 190-FZ “On Heat Supply”). As stated in the resolution of the Arbitration Court of the Volga-Vyatka District dated October 27, 2015 No. F01-3656/2015, in order to recognize an organization as a heat supply company, it must have a produced resource for sale to its consumers, as well as legal possession of the necessary equipment.

The fact that heat energy is sold not under a heat supply agreement and not at regulated prices does not matter for tax purposes. In accordance with paragraph 3 of Art. 2 of the Civil Code of the Russian Federation, civil law does not apply to tax relations.

It should be noted that in the absence of a heat supply agreement and the recovery through the court of the amounts of unjust enrichment in the form of thermal energy consumed by residents, these amounts are subject to VAT. Thus, the Arbitration Court of the North-Western District, in its decision of February 18, 2016 in case No. А56-18113/2015, considered the situation when the enterprise carried out non-contractual consumption of thermal energy. The heat supplier company filed a lawsuit to recover unjust enrichment from the enterprise in the form of the cost of non-contractual consumption of heat energy, including VAT. The court pointed out that the consumption of thermal energy is considered non-contractual without the conclusion of a heat supply contract in accordance with the established procedure (clause 29, article 2 of the Federal Law of July 27, 2010 No. 190-FZ). According to paragraph 3 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 17, 1998 No. 30 “Overview of the practice of resolving disputes related to the energy supply agreement”, the absence of contractual relations does not relieve the consumer from the obligation to reimburse the cost of the heat supplied to him.

Since the enterprise received thermal energy, it is obliged, in accordance with the norms of the Tax Code of the Russian Federation, to pay VAT to the energy supplier as part of the purchase price. The fact that the cost of consumed heat energy in the absence of a concluded heat supply contract is recovered in the manner of unjust enrichment does not relieve the supplier company from the obligation to present the corresponding amount of VAT in addition to the cost of non-contractual consumption. In this case, non-contractual consumption of thermal energy is recognized as a VATable transaction in accordance with paragraph 1 of Art. 146 of the Tax Code of the Russian Federation. Therefore, the supplier company reasonably issued invoices for payment of the thermal energy actually consumed by the enterprise, including VAT.

Similar conclusions are contained in the decision of the Arbitration Court of the North-Western District dated November 24, 2015 in case No. A26-447 / 2015 in relation to non-contractual consumption of electricity (Decision of the Supreme Court of the Russian Federation dated March 23, 2016 No. 307-KG16-1324 refused to transfer the case to the Judicial Board on economic disputes).

And in the case considered by the Arbitration Court of the Moscow District in its decision No. F05-9021/2015 dated 07.09.2015, the court found it lawful to charge VAT on the amount of unjust enrichment for the period of illegal use of property. He pointed out that unjust enrichment in the present case constituted rent for the use of equipment, and for tax purposes, a transaction for the sale of services subject to VAT.

So, since the amount of compensation received by the company under an agreement with the management company is related to the payment for the thermal energy supplied to residents, it is based on subpara. 2 p. 1 art. 162 of the Tax Code of the Russian Federation is subject to VAT.

Claimed for the recovery of losses in the form of the cost of heat losses. As follows from the case file, a heat supply agreement was concluded between the heat supply organization and the consumer, to which the heat supply organization (hereinafter referred to as the plaintiff) undertook to supply the consumer (hereinafter referred to as the defendant) through the connected network of the transporting enterprise on the border of the balance sheet ownership of thermal energy in hot water, and the defendant - in a timely manner pay for it and fulfill other obligations stipulated by the contract. The boundary of the division of responsibility for the maintenance of networks is established by the parties in the annex to the contract - in the act of delimiting the balance sheet ownership of heating networks and the operational responsibility of the parties. According to the named act, the delivery point is a thermal camera, and the network section from this camera to the defendant's objects is in its operation. In clause 5.1 of the agreement, the parties provided that the amount of received thermal energy and consumed heat carrier is determined at the boundaries of the balance sheet property established by the appendix to the agreement. Losses of thermal energy in the section of the heating network from the interface to the metering station are attributed to the defendant, while the amount of losses is determined in accordance with the appendix to the contract.

Satisfying the claims, the lower courts established: the amount of losses is the cost of thermal energy losses in the network section from the thermal chamber to the defendant's facilities. Given that this section of the network was in the operation of the defendant, the obligation to pay for these losses by the courts was rightfully assigned to him. The defendant's arguments boil down to his lack of a statutory obligation to compensate for losses that should be taken into account in the tariff. Meanwhile, the defendant assumed such an obligation voluntarily. The courts, rejecting this objection of the defendant, also found that the plaintiff's tariff did not include the cost of services for the transmission of heat energy, as well as the cost of losses in the disputed section of the network. The higher authority confirmed that the courts correctly concluded that there were no grounds to believe that the disputed section of the network was ownerless and, as a result, there were no grounds for exempting the defendant from paying for the heat energy lost in his network.

From the above example, it is seen that it is necessary to distinguish between the balance affiliation of heating networks and operational responsibility for the maintenance and service of networks. The balance affiliation of certain heat supply systems means that the owner has the right of ownership to these objects or other property rights (for example, the right of economic management, the right of operational management or the right to lease). In turn, operational responsibility arises only on the basis of an agreement in the form of an obligation to maintain and service heating networks, heating points and other structures in a workable, technically sound condition. And, as a result, in practice, cases are not uncommon when, in court, it is necessary to resolve disagreements that arise between the parties when concluding agreements regulating relations for the supply of consumers with heat. The following example can serve as an illustration.

Announced the settlement of disagreements that arose during the conclusion of a contract for the provision of services for the transmission of thermal energy. The parties under the agreement are the heat supply organization (hereinafter referred to as the plaintiff) and the heat network organization as the owner of heat networks on the basis of a property lease agreement (hereinafter referred to as the defendant).

The plaintiff, turning to, proposed clause 2.1.6 of the contract to be stated as follows: "The actual losses of thermal energy in the pipelines of the defendant are determined by the plaintiff as the difference between the volume of thermal energy supplied to the heating network and the volume of thermal energy consumed by the connected power receiving devices of consumers. Before carrying out by the defendant an energy audit of heat networks and agreeing its results with the plaintiff in the relevant part, the actual losses in the heat networks of the defendant are assumed to be 43.5% of the total actual losses (actual losses on the plaintiff's steam pipeline and in the defendant's intra-quarter networks)".

The first instance adopted clause 2.1.6 of the contract as amended by the defendant, which "actual heat losses - actual heat losses from the surface of the insulation of heating network pipelines and losses with actual leakage of the coolant from the pipelines of the defendant's heating networks for the billing period are determined by the plaintiff in agreement with the defendant by calculation in accordance with applicable law." The appellate and cassation instances agreed with the conclusion of the court. Rejecting the wording of the plaintiff on the named point, the courts proceeded from the fact that the actual losses cannot be determined by the method proposed by the plaintiff, since the final consumers of thermal energy, which are multi-apartment residential buildings, do not have common house meters. The volume of heat losses proposed by the plaintiff (43.5% of the total volume of heat losses in the totality of networks to end consumers) was considered by the courts to be unreasonable and overstated.

The supervisory authority concluded that the decisions taken in the case do not contradict the norms of the legislation regulating relations in the field of heat energy transmission, in particular subparagraph 5 of paragraph 4 of Art. 17 of the Law on heat supply. The plaintiff does not dispute that the disputed item determines the amount of not normative losses taken into account when approving tariffs, but excess losses, the volume or principle of determining which must be confirmed by evidence. Since such evidence was not presented to the courts of the first and appellate instances, paragraph 2.1.6 of the agreement was rightfully adopted as amended by the defendant.

Analysis and generalization of disputes related to the recovery of losses in the form of the cost of thermal energy losses indicates the need to establish mandatory rules governing the procedure for covering (reimbursing) losses arising in the process of energy transmission to consumers. In this regard, a comparison with the retail electricity markets is indicative. Today, relations for the determination and distribution of losses in electrical networks in the retail electricity markets are regulated by the Rules for Non-Discriminatory Access to Electricity Transmission Services, approved. Decree of the Government of the Russian Federation of December 27, 2004 N 861, Orders of the Federal Tariff Service of Russia of July 31, 2007 N 138-e / 6, of August 6, 2004 N 20-e / 2 "On approval of the Guidelines for the calculation of regulated tariffs and prices for electrical (thermal) energy in the retail (consumer) market".

Starting from January 2008, electric energy consumers located on the territory of the corresponding subject of the Federation and belonging to the same group, regardless of the departmental affiliation of networks, pay for electric energy transmission services at the same tariffs, which are subject to calculation by the boiler method. In each subject of the Federation, the regulatory body establishes a "single boiler tariff" for electric power transmission services, in accordance with which consumers pay with the grid organization to which they are connected.

The following features of the "boiler principle" of tariff setting in the retail electricity markets can be distinguished:

• - the revenue of grid organizations does not depend on the amount of electricity transmitted through the grid. In other words, the approved tariff is intended to compensate the network organization for the costs of maintaining electrical networks in working condition and their operation in accordance with the safety requirement;
• - only the standard of technological losses within the approved tariff is subject to compensation. In accordance with paragraph 4.5.4 of the Regulations on the Ministry of Energy of the Russian Federation, approved. By Decree of the Government of the Russian Federation of May 28, 2008 N 400, the Ministry of Energy of Russia is empowered to approve the standards for technological losses of electricity and implements them through the provision of an appropriate public service.

It should be taken into account that normative technological losses, in contrast to actual losses, are inevitable and, accordingly, do not depend on the proper maintenance of electrical networks.

Excess losses of electrical energy (the amount exceeding the actual losses over the standard adopted when setting the tariff) constitute the losses of the grid organization that allowed these excesses. It is easy to see that such an approach encourages the grid organization to properly maintain power grid facilities.

Quite often there are cases when, in order to ensure the process of energy transmission, it is necessary to conclude several contracts for the provision of energy transmission services, since sections of the connected network belong to different network organizations and other owners. Under such circumstances, the grid organization to which the consumers are connected, as a "boiler holder", is obliged to conclude contracts for the provision of energy transmission services with all its consumers with the obligation to regulate relations with all other grid organizations and other owners of networks. In order for each grid organization (as well as other owners of networks) to receive the necessary economically justified gross proceeds due to it, the regulatory body, along with the "single boiler tariff", approves an individual mutual settlement tariff for each pair of grid organizations, according to which the grid organization - the "boiler holder" must transfer another economically justified revenue for energy transmission services through its networks. In other words, the network organization - the "boiler holder" is obliged to distribute the payment received from the consumer for the transmission of electricity between all network organizations participating in the process of its transmission. The calculation of both the "single boiler tariff" intended for calculating consumers with a grid organization, and individual tariffs governing mutual settlements between grid organizations and other owners, is carried out in accordance with the rules approved by the Order of the FTS of Russia on August 6, 2004 N 20-e / 2. 23/01/2014 19:39 23/01/2014 18:19

__________________

O.A. butchers,
tax lawyer, Ph.D.

Each branch of production has characteristic features that are also manifested in the field of tax legal relations. As the analysis of arbitration practice shows, one of the most difficult issues is related to the calculation and payment of VAT by electric power companies.

1. Problems of determining the tax base for VAT

1.1. Is it necessary to include in the VAT tax base the amount of the tariff imbalance in the regulated sector of the federal wholesale electricity (capacity) market

A generalization of judicial practice shows that one of the most common disputes is the inclusion of tariff imbalances in the regulated sector of the federal (all-Russian) wholesale electricity (capacity) market (FOREM) into the VAT tax base.

In particular, the tax authorities draw conclusions about the underestimation of the tax base by the amount of the tariff imbalance arising in connection with the supply of electricity to buyers at lower prices compared to the prices set by the state for electricity suppliers [see. in the resolutions of the Federal Antimonopoly Service of the West Siberian District dated April 2, 2008 N F04-1655 / 2008 (1912-A27-14; FAS of the Ural District dated February 26, 2008 N F09-632 / 08-C2].

However, when making decisions on tax disputes, the courts proceed from the fact that the taxpayer is obliged to calculate VAT at the established rate from the amount of electricity (capacity) that is reflected in the summary act of accounting.

Electrical energy is a specific commodity. Suppliers supply electricity not to a specific end customer, but to the grid of the Unified Energy System of Russia (UES of Russia). Buyers receive electricity not from a specific supplier, but directly from the networks of the UES of Russia.

Thus, at the time the generating company draws up a summary act of metering the energy (capacity) supplied to the grid of the UES of Russia, in the absence of an invoice notification from the wholesale market operator, it is impossible to establish the fact of the shipment of electricity to a specific end consumer.

By virtue of paragraph 13 of Art. 40 of the Tax Code of the Russian Federation (TC RF), when selling goods (works, services) at state regulated prices (tariffs) established in accordance with the legislation of the Russian Federation, the above prices (tariffs) are accepted for taxation purposes.

Based on Art. 1 of the Federal Law of 04.14.1995 N 41-FZ "On State Regulation of Tariffs for Electricity and Heat in the Russian Federation" FOREM - the sphere of electricity and power circulation within the framework of the UES of Russia within the boundaries of the single economic space of the Russian Federation with the participation of large producers and large electricity buyers who have received the status of wholesale market entities and act on the basis of the wholesale market rules.

So, in accordance with clauses 6 and 7 of the Instruction on the procedure for calculating the cost balance of the federal (all-Russian) wholesale electricity (capacity) market (FOREM) when setting tariffs for electricity (capacity) supplied with FOREM, approved by the Decree of the FEC of Russia dated January 21 .2000 N 4/6, if the cost balance of the wholesale market is in deficit, tariffs for consumers may be revised; in the event that it is impossible to ensure, in the current period of regulation, the deficit-free value balance of the wholesale market, the FEC of Russia decides on the procedure for accounting for this shortage of funds when regulating tariffs in future periods. Under such conditions, the moment of determining the tax base for VAT on this amount will be the tax period in which it will be taken into account when setting tariffs.

A value imbalance in the regulated FOREM sector occurs when, in certain regulatory periods, the total cost of electricity supply by all electricity (capacity) suppliers in the regulated FOREM sector, calculated at the individual tariffs of suppliers, exceeds the total cost of electricity purchases by all buyers, calculated at the corresponding tariffs of buyers.

In view of the foregoing, in the resolutions of the Federal Antimonopoly Service of the North-Western District dated March 18, 2008 N A13-737 / 2007, dated March 3, 2008 N A42-1074 / 2007; FAS of the Volga-Vyatka District dated 01.10.2007 N A29-6791 / 2006a; FAS of the West Siberian District of 04/02/2008 N F04-1656 / 2008 (1913-A27-14); Federal Antimonopoly Service of the Urals District dated 18.02.2008 N F09-379/08-S2, dated 12.02.2008 N F09-238/08-S2, dated 10.01.2008 N F09-10866/07-S2 the courts draw conclusions that the tax authorities have no grounds for the refusal of the organization to reduce the tax base for VAT by the amount of the tariff imbalance.

The electricity supplier is obliged to be guided for tax purposes by the state regulated price at which the actual sale of electricity to a particular consumer is made. For tax purposes, the amount of a negative value imbalance cannot be recognized as revenue, since it does not meet the criteria established for taxable revenue: it is not related to the sale of goods (works, services) and there is no possibility of obtaining it. This legal position is given in the resolutions of the Federal Antimonopoly Service of the North Caucasus District dated March 12, 2008 N F08-1018 / 08-370A, dated February 19, 2008 N F08-502 / 08-167A.

1.2. Should the tax base for VAT include the amounts of grants and subventions from the budget to cover losses from the use of state regulated prices

In a number of cases, tax authorities require that subsidies received by an organization from the budget and associated with partial financing by a local government of the cost of utilities (including electricity) consumed by the population be included in the VAT tax base. Similar claims of the tax authorities are reflected in the resolutions of the Federal Antimonopoly Service of the Urals District dated 07.06.2006 N Ф09-4706/06-С2; FAS of the West Siberian District of December 25, 2006 N F04-7755 / 2006 (28590-A03-14), dated April 25, 2006 N F04-1543 / 2006 (21806-A67-29).

At the same time, the tax authorities believe that enterprises do not provide utility services to the population, but pay VAT to the producers of these services at the expense of funds received from consumers of utility services, as well as at the expense of amounts received from the budget in the form of subsidies.

In such situations, taxpayers enter into contracts for the provision of public services with resource-supplying organizations and with organizations providing housing and maintenance services. In the future, taxpayers sell these services to the population at state regulated prices.

When resolving this category of disputes, the courts are guided by the following. According to paragraph 2 of Art. 154 of the Tax Code of the Russian Federation (as amended before January 1, 2008) when selling goods (works, services), taking into account subsidies provided by budgets of various levels in connection with the use by the taxpayer of state regulated prices, or taking into account the benefits provided to individual consumers in accordance with federal legislation, the tax base is defined as the cost of goods (works, services) sold, calculated on the basis of their actual sales prices. This, in particular, is indicated in the resolutions of the Federal Antimonopoly Service of the Urals District of March 26, 2007 N F09-1891 / 07-C3, of January 15, 2007 N F09-11730 / 06-C2, of January 9, 2007 N F09-11475 / 06-C2 .

The above funds allocated to taxpayers from the budget to compensate for actually received losses associated with the use of state regulated prices for goods (works, services) are not included in the tax base for the purposes of calculating VAT, since the receipt of these funds is not associated with settlements for payment for goods sold (works, services).

Arbitration courts indicate that enterprises should not include in the VAT tax base the amount of subsidies received from the budget to cover losses (compensation of expenses).

For example, in the resolution of the Federal Antimonopoly Service of the North Caucasus District dated February 27, 2007 N F08-621 / 2007-267A, it is noted that the company reasonably did not include in the tax base for calculating VAT the funds received from the budget to compensate for losses from the electricity supply to the population, since from the point of view subparagraph 2 of paragraph 1 of Art. 162 of the Tax Code of the Russian Federation does not follow that these amounts can be included in the taxable base for this type of tax [such funds cannot be regarded as received for goods (works, services) sold in the form of financial assistance, to replenish special-purpose funds, to increase income, or otherwise related to payment for goods (works, services) sold].

A similar approach to solving the issue under consideration can be traced in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 08.02.2005 N 11708/04; determination of the Supreme Arbitration Court of the Russian Federation of 22.08.2008 N 2082/08; resolutions of the Federal Antimonopoly Service of the Moscow District dated March 15, 2007 N KA-A40 / 546-07; FAS of the North-Western District dated March 20, 2008 N A05-5719 / 2007; FAS of the Volga-Vyatka District dated April 16, 2007 N A38-1906-17 / 201-2006; FAS of the East Siberian District dated 21.02.2008 N A33-34293/05-Ф02-7283/06, dated 13.02.2008 N А33-7744/07-Ф02-332/08, dated 10.01.2008 N А33-14544/06- F02-9589/07, No. A33-5205/06-F02-8936/07 of November 29, 2007; Federal Antimonopoly Service of the Urals District dated 09.10.2007 N F09-8251/07-S2, dated 16.08.2007 N F09-6433/07-S2.

A similar approach is applied to organizations that sell goods (works, services) at preferential rates and receive subventions for the purchase of fuel in this regard (determination of the Supreme Arbitration Court of the Russian Federation of December 14, 2007 N 15928/07, resolution of the FAS of the Far Eastern District of August 3, 2007 N F03 -A24/07-2/2387).

Readers of the journal should pay attention to the fact that the Federal Law of November 29, 2007 N 284-FZ "On Amendments to Part Two of the Tax Code of the Russian Federation" outlined the second and third paragraphs of paragraph 2 of Art. 154 of the Tax Code of the Russian Federation in the following edition: "When selling goods (works, services), taking into account subsidies provided by the budgets of the budget system of the Russian Federation in connection with the use by the taxpayer of state regulated prices, or taking into account the benefits provided to individual consumers in accordance with the law, the tax base is determined as the cost of goods (works) sold , services), calculated on the basis of the actual prices of their implementation.

The amounts of subsidies provided by the budgets of the budgetary system of the Russian Federation in connection with the use by the taxpayer of state regulated prices, or benefits provided to individual consumers in accordance with the law, are not taken into account when determining the tax base.

With the adoption of the above amendments to the Tax Code of the Russian Federation, the number of litigations on the analyzed problem, in our opinion, should be reduced.

1.3. Is it necessary to include in the tax base for VAT the amount of increased payment for exceeding the contractual values ​​of energy consumption

Arbitration courts emphasize that VAT is subject to the proceeds received by the organization from consumers in payment for electricity consumed in excess of the amounts specified in the contract (increased payment).

In particular, in one of the disputes, the court found it lawful to hold the taxpayer liable for non-payment of VAT, which arose in connection with the exclusion from the tax base of the amounts of revenue received from consumers in payment for electricity consumed in excess of the amounts specified in the contract (increased fee).

In the course of counter audits, the tax authority established that this tax was accepted from energy consumers for deduction in full, and the company did not make recalculations with energy buyers and return tax amounts to them.

These conclusions are made in the resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District of December 21, 2006 N A43-14347 / 2005-11-498, of December 7, 2006 N A43-14347 / 2005-11-498, of March 14, 2006 N A43-11947 / 2005 -36-443.

1.4. Is it necessary to include in the tax base for VAT the amount of fines and penalties for exceeding the limits of electricity consumption

The tax authorities sometimes conclude that the enterprise, in pursuance of paragraph 2 of Art. 153 of the Tax Code of the Russian Federation should include in the taxable base for VAT the amount of revenue received from the sale of electricity in excess of the contractual amount and which includes sanctions for exceeding the limits of electricity consumption.

Meanwhile, the legislation on taxes and fees does not contain provisions on the inclusion in the VAT taxable base of the amounts of accrued sanctions paid for non-performance or improper performance of contracts.

Penalties in civil law relations are not the sale of goods (works, services) in the sense given to this concept by Art. 38 of the Tax Code of the Russian Federation, that is, they are not subject to VAT, listed in Art. 146 of this Code.

Disputed amounts of money are considered a fine for non-performance or improper performance of contracts for the supply of electricity for industrial and non-industrial consumers. Under such circumstances, the courts come to the conclusion that the tax authority has no grounds for accruing disputed amounts of VAT to enterprises.

Article 162 of the Tax Code of the Russian Federation does not contain provisions on increasing the tax base for VAT by the amount of fines and penalties. Interest (penalty) is paid in excess of the price of the goods and is not related to settlements for the sale of goods (works, services). Thus, in one of the disputes, the court indicated that the disputed amount was received by Khabarovskenergo OJSC in pursuance of court decisions on the recovery of interest (penalties) in favor of the company for late payment of electricity received by counterparties (Decree of the Federal Antimonopoly Service of the Far Eastern District dated April 12, 2006 N F03-A73 /06-2/671).

Similar conclusions were made in the resolutions of the Federal Antimonopoly Service of the Urals District dated March 6, 2008 N F09-1104 / 08-C2, dated March 19, 2007 N F09-1687 / 07-C2; Federal Antimonopoly Service of the Volga District dated January 27, 2006 N A06-2024U / 4-21/05.

2. Difficult situations related to the exercise of the right to deduct VAT

2.1. Problems of VAT refunds by enterprises receiving subsidies from the budget to cover losses from the use of state regulated prices

In a number of cases, power industry enterprises receive funds from the budget to cover losses associated with the sale of works and services by them at state regulated prices or with the use of benefits provided by law to individual consumers.

The tax authorities believe that since the payment of VAT in such cases is made at the expense of funds received from the budget in the form of subsidies, the enterprise does not bear the real costs of paying VAT, and therefore it has no right to a refund of this tax. Such claims were the subject of judicial review in the decisions of the Federal Antimonopoly Service of the Urals District dated March 4, 2008 N F09-1006 / 08-C2; FAS of the East Siberian District dated September 27, 2007 N A33-7488 / 06-F02-6909 / 07.

Meanwhile, the courts decide this issue differently, referring to Art. 176 of the Tax Code of the Russian Federation, according to which, if at the end of the tax period the amount of tax deductions exceeds the total amount of tax calculated on transactions recognized as an object of taxation, then the resulting difference is subject to compensation (offset, refund) to the taxpayer.

The Tax Code of the Russian Federation does not establish any restrictions on the above rights of organizations selling goods (works, services) at regulated prices and receiving subsidies in connection with this. In addition, the courts point out that there is no evidence of the allocation of the above subsidies directly for the reimbursement of VAT.

These conclusions are made in the resolutions of the Federal Antimonopoly Service of the Moscow District dated 08.05.2007 N KA-A40 / 3318-07; FAS of the East Siberian District dated 16.01.2008 N A33-7811/07-F02-9870/07, dated 10.01.2008 N A33-14544/06-F02-9589/07, dated 10.24.2007 N A33-14657/06- F02-8172/07, dated September 19, 2007 N A33-7428/06-F02-6484/07, dated September 18, 2007 N A33-6773/06-F02-6418/07; Federal Antimonopoly Service of the Volga District dated February 14, 2008 N A49-3457 / 07; FAS of the Ural District dated 05/23/2007 N F09-3762 / 07-C2.

2.2. Is the organization entitled to receive a deduction of the amount of VAT attributable to technological losses

Tax authorities often deny organizations the right to deduct VAT, since a prerequisite for accepting VAT deductions on purchased goods (electricity) is their use for transactions recognized as subject to VAT. According to the tax authorities, the economically unjustified costs of technological losses included in the cost of electricity were not used in transactions subject to VAT. A similar dispute was the subject of litigation in the decision of the Federal Antimonopoly Service of the West Siberian District dated September 27, 2006 N F04-6119 / 2006 (26612-A27-15).

However, the courts note that the organizations lawfully, in compliance with the requirements of Art. 171 and 172 of the Tax Code of the Russian Federation were presented with tax deductions for VAT attributable to technological losses. The discrepancy between the amount of technological losses of electric and thermal energy, provided for when setting tariffs, and the actual value of the technological losses of the organization does not serve as a basis for restoring the disputed amount of VAT accepted by the taxpayer for deduction and attributable to the difference between the amount of actually incurred and the amount of established technological losses of electric and thermal energy . This, in particular, is indicated in the resolution of the FAS of the Far Eastern District of May 11, 2007 N F03-A51 / 07-2 / 974.

In another situation, which became the subject of litigation in the decision of the Federal Antimonopoly Service of the West Siberian District dated July 17, 2007 N F04-4766 / 2007 (36332-A46-25), it was indicated that all the electricity received by the company was used for technological purposes in the production process in accordance with the terms of the concluded power supply contract. The use of electricity in technological processes is inevitably associated with its losses in the process of consumption. Thus, payment for losses arising from the transmission of electricity for production needs was a necessary payment for the purchase of energy spent for technological purposes. The costs of paying for electricity losses were economically justified, in connection with which the company reasonably included VAT in tax deductions.

2.3. How to confirm the right to deduct VAT from the amount of compensation for electricity losses

Sometimes the tax authorities prohibit the deductibility of VAT paid on the purchase of electricity in order to compensate for technological losses that occur during its transmission through electric networks.

In such situations, the tax authorities believe that the organization does not have the right to apply the VAT deduction, since the goods (electricity) were not actually purchased and not sold, since the losses of electricity were actually paid for, which cannot be used in the future for transactions subject to VAT; at the same time, the organization did not provide actual services for the transmission of electricity.

Meanwhile, arbitration courts take a different approach, noting the following. According to paragraph 3 of Art. 32 of the Federal Law of March 26, 2003 N 35-FZ "On the Electric Power Industry", the amount of electrical energy losses not taken into account in the prices for electrical energy is paid by the grid organizations in whose networks they occurred, in the manner established by the rules of the wholesale and (or) retail markets. At the same time, grid organizations are obliged to conclude, in accordance with the specified rules, contracts for the purchase and sale of electrical energy in order to compensate for losses within the amount not taken into account in the prices for electrical energy.

Thus, in the resolution of the Federal Antimonopoly Service of the Urals District dated January 24, 2008 N F09-11482 / 07-C2, it was noted that the taxpayer was supplied with electricity as compensation for technological consumption (losses) at the established tariff. Therefore, the court rejected the tax authority's arguments that the taxpayer did not have a mandatory contract for the sale of electricity, that the company's expenses for the purchase of non-existent goods were unlawful, and that they did not provide electricity transmission services.

In addition, the absence of a regulation on the norms of electricity losses approved by the competent authority at the time being checked did not in itself indicate that the taxpayer had overestimated VAT tax deductions.

Since the taxpayer has met all the conditions for the application of tax deductions, established by Art. 171 and 172 of the Tax Code of the Russian Federation, the court concluded that the tax authority had no grounds for not accepting VAT deductions.

A similar legal position is given in the resolutions of the Federal Antimonopoly Service of the Volga-Vyatka District of August 18, 2006 N A17-4770 / 5-2005, the Federal Antimonopoly Service of the Central District of January 20, 2006 N A14-6288 / 2005211 / 34.

3. Analysis of other tax disputes in the field of electric power industry

3.1. Problems of confirming the status of an energy supplying organization and the legal nature of operations for the sale of electricity

In practice, taxpayers enter into contracts for the supply and consumption of electricity, according to which they are actually sub-subscribers, since the energy supplier is a subscriber of the energy supply organization.

The tax authorities refuse to refund VAT, pointing out that the transaction for the transfer of electricity from the supplier to the taxpayer is not subject to VAT, since the supplier is not an energy supply organization and, accordingly, invoices for electricity are not issued by a non-energy supply organization.

Meanwhile, the courts do not agree with these arguments of the tax authorities and indicate the following. According to Art. 1 of the Federal Law of 14.04.1995 N 41-FZ, an energy supply organization is an economic entity that sells produced or purchased electrical and (or) thermal energy to consumers.

Based on Art. 545 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation), a subscriber can transfer energy received by him from an energy supply organization through an attached network to another person (sub-subscriber) only with the consent of the energy supply organization. In this case, the subscriber acts in the above case in relation to the sub-subscriber as an energy supply organization and, accordingly, an agreement for the transmission of electricity is concluded between the subscriber and the sub-subscriber. Therefore, the energy supplier, as an economic entity that sells purchased electrical energy, is an energy supply organization.

Electricity, being an object of civil rights, refers to movable property, in respect of which, in accordance with paragraph 1 of Art. 539 of the Civil Code of the Russian Federation, an energy supply contract can be concluded.

In this regard, the courts invalidate the arguments of the tax authorities that transactions for the sale of electricity to organizations are not transactions for the sale of goods for VAT purposes. Therefore, the organization has the right to apply tax deductions (Decree of the FAS of the East Siberian District of October 18, 2007 N A19-3286 / 07-30-Ф02-7751 / 07).

3.2. Problems of confirming the fact of acceptance of electricity for accounting

In a number of cases, tax authorities refuse VAT refunds to enterprises, arguing that there is no evidence that energy resources have been taken into account. Such claims are contained, for example, in the resolutions of the FAS of the East Siberian District of October 9, 2007 N A33-6774 / 06-F02-6612 / 07, of September 18, 2007 N A33-6771 / 07-F02-6427 / 07.

However, the courts reject such arguments, noting the following. In accordance with the terms of the contracts concluded by the enterprise with resource-supplying organizations, it is envisaged to determine the volume of consumed resources based on the readings of metering devices.

Taking into account the peculiarities of the purchased goods and the specifics of the execution of energy supply contracts, the courts do not take into account the references of the tax authorities to the lack of documents from the taxpayer confirming the acceptance of the acquired resources for accounting.

These conclusions are made in the resolutions of the Federal Antimonopoly Service of the East Siberian District dated January 16, 2008 N A33-7811 / 07-F02-9870 / 07, dated November 29, 2007 N A33-5205 / 06-F02-8936 / 07.

3.3. Difficult issues of applying the 0% tax rate on electricity exports

Organizations supplying electricity for export face serious problems.

In some cases, the tax authorities believe that the services of customs brokers, as well as services for optimizing electrical regimes, are directly related to the sale of electricity for export and are subject to VAT at a rate of 0% on the basis of subparagraph 2 of paragraph 1 of Art. 164 of the Tax Code of the Russian Federation. Therefore, organizations are not entitled to claim reimbursement from the budget of VAT paid to counterparties at a rate of 18% as part of the price of these services in violation of Art. 3, 168 and 169 of the Tax Code of the Russian Federation.

At the same time, the courts point out that the list of those subject to subparagraph 2 of paragraph 1 of Art. 164 of the Tax Code of the Russian Federation of services is not exhaustive and is not limited only to services for the organization and implementation of the transportation process.

Thus, the export of goods, including electricity, outside the customs territory of the Russian Federation in the customs regime of export is impossible without the declaration procedure, which is directly related to the sale of goods for export and is a prerequisite for the legality of export.

At the same time, for tax purposes, it has no legal significance, before or after the physical export of a particular product, it is allowed or required to declare it according to customs rules. These conclusions are made in the resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 19, 2008 N 12371/07; Federal Antimonopoly Service of the Moscow District of May 30, 2007 N KA-A40 / 3073-07, of October 5, 2007 N KA-A40 / 10092-07-P, of October 17, 2006 N KA-A40 / 9790-06.

In a different situation, the tax authority challenged the validity of applying the 0% VAT rate on electricity supply transactions based on a contract with a branch of a Russian legal entity (and not with a foreign legal entity).

However, the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.10.2006 N 7057/06 states that when resolving the dispute, it was necessary to take into account the peculiarities of the legal regulation of economic relations between economic entities of the Russian Federation and the Republic of Kazakhstan, provided for in the Agreement of 09.10.2000 between the Government of the Russian Federation and the Government of the Republic of Kazakhstan on the principles of levying indirect taxes in mutual trade, which applies to economic entities (taxpayers) of states. The branch of the Russian company was a VAT payer in accordance with the legislation of the Republic of Kazakhstan, respectively, the transactions were recognized as export, subject to VAT at a rate of 0%.