Reasonable costs economically justified costs. We justify the costs
Marketing research is not included in it. The business case usually contains a detailed description of the technologies and equipment, as well as the reasons for their choice.
When compiling an economic justification, it is necessary to observe a certain. It starts with initial data, information about the market sector. It then describes existing business development opportunities, sources of raw materials, material resources for expanding the business, the amount of capital expenditure required to achieve the goal, the production plan, financial policy, and general information about the project.
Thus, the economic justification contains a description of the industry where the enterprise operates, the type of input products, and the price level for it. The financial part of this document includes the conditions for attracting borrowed funds, sources of their coverage. Calculations are given in tables that reflect the movement of cash flows.
When compiling an economic justification, it is necessary to study the current position of the enterprise, its place in the market, the technologies and equipment used. In addition, it is necessary to determine ways to increase the profitability of the company and develop the business, predict the level of profitability that can be achieved during the implementation of the project, study the necessary technical data, and analyze the level of staff training. It will also be necessary to draw up a project implementation plan, cost estimate and cash flow plan, as well as an overall economic assessment of the investment.
A feasibility study is a document that contains an analysis of the feasibility of creating a particular product or service. It allows investors to determine whether they should invest their own money in the proposed business project.
Instruction
Use the following structure when preparing a feasibility study: - initial data and conditions; - market features and company capacity; - material factors of production activities; - location of the company; - design documents; - information about the organization of the enterprise and overhead costs; - labor resources; - forecasting the timing of the implementation of this project; - financial and economic.
Write general data about the project, i.e. the general intent in the feasibility study. Specify the location and participants of the business project. Then make a brief description for the industry to which this project belongs. Next, analyze the supply and demand and evaluate the market capacity. After that, identify the main potential consumers of products (services), as well as the main competitors.
Write a rationale for the selected region for the project location from the standpoint of market conditions. Give the main parameters in the feasibility study: the type and range of products (services), the volume of services of the enterprise.
Indicate data on capital costs in the feasibility study. Provide an estimate of the capital (one-time) costs required to implement the business project in question. Calculate the amount of operating costs. To do this, refer to the feasibility study for an estimate of operating (annual) costs.
Make a production program in the feasibility study. Describe all types of products (services) that the company plans to produce as part of the analyzed project, indicating the volume of production activities and selling prices. Make a rationale for the main price indicators.
Indicate how the financing of the project is planned. To do this, draw up a scheme for financing a business project, which will contain a description of all sources of obtaining credit funds, their purpose and repayment terms.
Conduct an assessment of the commercial feasibility of implementing the created business plan. Make calculations of the main economic indicators based on the necessary initial data that are accepted for the economic analysis of the project. In turn, the calculation part of the feasibility study should contain the following calculation material: the company's cash flow table, balance sheet forecast.
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The justification stage of the project is very important. During it, you can identify and, if possible, correct those points that may lead to failure in the future. Pay special attention to starting early and you will achieve better results.
Instruction
Determine the goals and objectives of the project justification. You need to answer the main question: do you need a project. Based on how well you work out the idea and convey the benefits that a new business can bring, a decision will be made to accept or not accept the project.
Describe the essence of the project. Tell us exactly what is planned to be done and what goals are being pursued. Explain how the need for a new case arose and why this path was chosen.
Communicate to the reader or listener the main ideas and ways in which the result will be achieved. Convince him that the chosen methods are the most effective in this case.
Tell us about how many employees will be required for the implementation of your project, and what they need to be qualified. Give justifications that the labor composition should be exactly like this. Describe in detail the functions of each member of the team. If you already have candidates, please state their first and last names. In addition, committee members or your management should be aware of how participation in the project will affect the core work of these employees.
Establish a sequence of actions and announce the timing of the project. Clearly list the main stages of its implementation. Then elaborate on each stage. A logical relationship should be visible between the actions so that it is clear why one item follows the other. Speak real terms, if this is problematic, do not name only a possible date for the completion of the project, it is better to indicate the maximum term. Explain what factors can affect the time it takes to complete a task.
Give a calculation of the material resources that will be involved in the project. Show what each item of expenditure consists of. Reread everything before the presentation. Remember that if you make an inaccurate calculation or miss some important article, it can blur the whole impression of the rest of your rationale and lead to the abandonment of the project.
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Tip 4: How to write a feasibility study?
When creating a manufacturing company, an entrepreneur in many cases has to draw up not only a business plan, but also a feasibility study for the project. This document is especially often required when a company seeks to introduce new technologies and obtain funding to achieve its goals.
04.09.2013
Accounting for expenses when calculating income tax. How to prove the economic feasibility of costs
M.V. Egorova, FASPO judge
In practice, when calculating income tax, disputes regularly arise between the tax authority and organizations about the validity of expenses incurred by the organization. The tax authorities require documentary confirmation of all expenses that reduce the taxable base when calculating tax. Documentary confirmation of expenses means expenses confirmed by documents drawn up in accordance with the current legislation of the Russian Federation. In addition, the taxpayer must prove the reasonableness of the costs, that is, their economic justification. But due to various reasons, the taxpayer at the time of the audit does not always have primary documents confirming the expenses. And their economic justification in some cases is not so obvious, which usually works into the hands of the tax authorities, who immediately recognize the costs as unreasonable. Hence the endless lawsuits of the organization to invalidate such decisions of the tax authorities. When reducing the taxable base for income tax, it is important for a taxpayer to understand in what cases it is possible to defend the economic feasibility of their costs, from what moment the acquired fixed assets subject to state registration can be included in depreciable property, and according to what rules it is necessary to calculate expenses in the absence of documents confirming the costs.
The tax registers of the reorganized legal entity are not proof of the costs incurred
The economic feasibility of the expenses incurred by the taxpayer is determined not by the actual receipt of income in a particular tax (reporting) period, but by the direction of such expenses for generating income. That is, the conditionality of economic activity, taking into account the content of the entrepreneurial goals and objectives of the organization (Article 252 of the Tax Code of the Russian Federation). The expenses of the organization are caused by economic, legal or other reasons, are associated with the receipt of income (or the possibility of obtaining it) or are due to the peculiarities of its activities. When assessing the validity of an expense, the tax authority takes into account exactly the intentions and goals of the organization’s activities, within the framework of which this expense was made, related to the receipt of income (profit), and not its result (decisions of the Federal Antimonopoly Service of the Volga District of December 13, 2012 in case No. A55- 15746/2012, of the Volga-Vyatka District of 08/07/2012 in case No. А29-5041/2011, of the East Siberian District of 03/19/2012 in case No. А58-2298/2011 to the Presidium of the Supreme Arbitration Court of the Russian Federation)).
The Constitutional Court of the Russian Federation pointed out that the tax legislation does not use the concept of economic expediency and does not regulate the procedure and conditions for conducting financial and economic activities. Therefore, the validity of expenses that reduce income received for tax purposes cannot be assessed in terms of their expediency, rationality, efficiency, or the result obtained. By virtue of the principle of freedom of economic activity, the taxpayer has the right to independently and solely evaluate its effectiveness and expediency, and the burden of proving the unreasonableness of the taxpayer's expenses rests with the tax authorities (determination of the Constitutional Court of the Russian Federation dated 04.06.2007 No. 366-O-P).
The production orientation of expenses for profit tax purposes is also taken into account when depreciating property.
It follows from the provisions of the Tax Code of the Russian Federation that fixed assets for which the taxpayer calculates depreciation must be taken into account as such, put into operation and used for production purposes (Articles 253, 256-259). This was also indicated by the Presidium of the Supreme Arbitration Court of the Russian Federation in its decision dated October 30, 2012 in case No. A27-6735/2011.
It should also be noted that in the said decision, the Supreme Arbitration Court of the Russian Federation developed an approach to determining the moment of inclusion of property subject to state registration in the corresponding depreciation group. The absence of state registration of the right to an object of fixed assets due to the fact that the taxpayer did not exercise the right to timely register it in ownership cannot be considered as a basis for depriving the taxpayer of the right to account for the costs associated with the creation and (or) acquisition of this object, through depreciation.
If an object of fixed assets is reflected as such in accounting with the determination of the initial cost, put into operation and used in production activities, then depriving the taxpayer of the right to accrue depreciation charges and their accounting as expenses when calculating income tax contradicts the provision of paragraph 4 of Art. 259 of the Tax Code of the Russian Federation.
Since 2013, in connection with the introduction of amendments to Article 258 of the Tax Code of the Russian Federation, the date of state registration does not affect the start of depreciation (subparagraph b) paragraph 5) of Art. 1 of the Federal Law of November 29, 2012 No. 206-FZ).
For income tax purposes, expenses must be documented. Documents confirming expenses are submitted by the taxpayer.
The procedure for documenting costs is established by Federal Law No. 129-FZ of November 21, 1996 "On Accounting" and implies the mandatory registration of all business transactions conducted by the organization with supporting documents that serve as primary accounting documents. On their basis, accounting and tax accounting in the organization should be maintained.
As the Supreme Arbitration Court pointed out when resolving one of the disputes - in the event that a loss is reflected in the tax return without the corresponding supporting primary documents on the basis of tax accounting registers and other analytical documents, the procedure established by paragraph 4 of Art. 283 of the Tax Code of the Russian Federation cannot be considered complied with (Decree of the Presidium dated July 24, 2012 in case No. A40-9620 / 11-140-41).
An important conclusion that follows from this resolution is related to the fact that the assignee has the right to transfer the amount of losses to the future only on the basis of primary accounting documents (contracts, acts, consignment notes) confirming the amount of losses. Tax registers, tax returns and deeds of transfer of a reorganized legal entity are not evidence of the costs incurred that generated losses.
Expenses must be confirmed by documents defined by law, from which their production orientation follows.
So, when considering one of the cases, the cassation board agreed with the conclusions of the court of first instance, indicating that the waybills submitted for verification, in order to justify transportation costs, do not confirm the costs of the taxpayer, their focus on making a profit. These documents were issued in violation of Art. 252 of the Tax Code of the Russian Federation. Namely, they did not contain information about the route of the car, and also contained general formulations, such as “in the Samara region”, “in Samara”, which do not disclose the content of the business transaction (decree of the Federal Antimonopoly Service of the Volga District dated 21.05.2013 in case No. A55- 23291/2012).
In case of loss of supporting documents, the tax authority calculates the tax using the calculation method
Quite often in judicial practice there are cases when the taxpayer cannot confirm his expenses due to circumstances beyond his control. For example, in case of loss of documents due to theft or fire.
Failure by the taxpayer to submit documents during a tax audit for a number of reasons is the basis for the inspection to apply the provisions of subpara. 7 p. 1 art. 31 of the Tax Code of the Russian Federation and determine the amount of the company's tax liabilities based on the characteristics of the activities of the taxpayer being audited and information obtained both from documents held by the tax authority, and by comparing such information with information about the activities of similar taxpayers.
The Presidium of the Supreme Arbitration Court of the Russian Federation, when considering one of the cases, indicated the following. Giving the tax authorities the right to calculate taxes by calculation is aimed both at realizing the goals and objectives of tax control, the implementation of which should not have arbitrary grounds, and at creating additional guarantees of the rights of taxpayers and ensuring a balance of public and private interests.
The calculation method is used by the tax authority both to determine income and to account for expenses for the purpose of determining the taxable base for income tax. According to the explanations of the Presidium, partial submission by taxpayers as part of an on-site tax audit of primary accounting and tax accounting documents is not a circumstance that exempts the tax authorities from applying the provisions of subpara. 7 p. 1 art. 31 of the Tax Code of the Russian Federation. Since the task of tax control is to objectively determine the amount of the tax liability of the taxpayer being checked (decision dated 07/19/2011 in case No. A55-5418 / 2010)
It should be noted that in practice it is sometimes difficult to distinguish between cases where the taxpayer did not document some of his expenses and when he submitted documents on expenses in part.
On this issue, the Presidium of the Supreme Arbitration Court of the Russian Federation stated the following. In cases where, due to objective reasons, the taxpayer was deprived of the opportunity to timely submit the relevant documents to the tax authority, but submits them to the court, the question of the legality of the additional tax assessment must be decided by the court based on all the evidence presented by the parties and included in the case file (decree of 19.07 .2011 in case No. A55-5418/2010).
Later, the Supreme Arbitration Court of the Russian Federation, pointing out the obligation of the tax authority to determine the actual amount of the taxpayer's tax liability, for the implementation of which the provisions of subpara. 7 p. 1 art. 31 of the Tax Code of the Russian Federation, extended the conclusions described in the above resolution to the situation when the taxpayer does not have primary documents and does not properly record business transactions (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 10, 2012 in case No. A55-5386 / 2011).
However, referring to the obligation of the tax authority to calculate the costs, in the situations described, by calculation, taxpayers must not forget that a reliable calculation of taxes when applying the calculation method is impossible for objective reasons. Taxes can be calculated reliably only with proper accounting of income and expenses. The application of the calculation method involves the calculation of taxes with varying degrees of probability.
WHEN DOCUMENTS ARE UNRELIABLE, THE TAXPAYER'S COSTS ARE DETERMINED AT MARKET PRICES
If the decision of the tax authority established the unreliability of the documents submitted by the taxpayer and contained assumptions about the intent to obtain unjustified tax benefits (or failure to exercise due diligence when choosing a counterparty), then the actual amount of the expected tax benefit and costs incurred should be determined based on market prices for similar transactions. A different legal approach entails a distortion of the real amount of tax liabilities for income tax.
At the same time, it is the taxpayer who is obliged to prove that the prices applied for the disputed transactions correspond to the market ones. In turn, the tax authority, in case of disagreement with the amount of expenses taken into account by the taxpayer when calculating income tax, is not deprived of the opportunity to refute the calculation presented by the taxpayer. But at the same time, the tax authority must justify the inconsistency of such prices with market prices and, as a result, the overstatement of the corresponding costs (decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 03.07.2012 in case No. A71-13079 / 2010-A17).
The Federal Tax Service, in pursuance of this resolution, published its recommendations, stating the following. If the audit does not prove the unreality of the completed business transactions for the acquisition and further use of goods (works, services), the actual amount of the expected tax benefit and the costs incurred by the taxpayer when calculating the tax shall be determined based on market prices applied for similar transactions. And in case of discrepancy between the size of the declared costs and the level of market prices, the tax authority reduces the amount of costs for disputed transactions, taken into account for the purposes of determining the tax base for income tax. The reduction is made in an amount exceeding the level of market prices applied for similar transactions established during the audit (Letter of the Federal Tax Service of Russia dated December 24, 2012 No. SA-4-7/22020@).
Speaking of expenses in order to determine the taxable base for income tax, one should not forget about the income with which they are associated.
An illustrative example of the connection between income and expenses can be the judicial practice on the issue of recognition of expenses of budgetary organizations incurred in the course of commercial activities.
Budgetary institutions that receive income from entrepreneurial and other income-generating activities are payers of corporate income tax and determine the tax base for the tax in the manner prescribed by Chapter 25 of the Tax Code of the Russian Federation.
Features of tax accounting by budgetary institutions were established before 01/01/2011 in Article 321.1 of the Tax Code of the Russian Federation. In accordance with its provisions, taxpayers - budgetary institutions financed from the budgets of all levels, state off-budget funds allocated according to the estimate of income and expenses of a budgetary institution, and receiving income from other sources, for tax purposes are required to keep separate records of income (expenses), received within the framework of target financing and at the expense of other sources.
For the purposes of Chapter 25 of the Tax Code of the Russian Federation, other sources - income from commercial activities - are recognized as incomes of budgetary institutions received from legal entities and individuals in transactions for the sale of goods, works, services, property rights, and non-operating income.
Paragraph 1 of Art. 321. 1 of the Tax Code of the Russian Federation provided for the procedure for calculating the tax base for income tax in relation to income from commercial activities. And also a ban was established on the direction of the amount of excess income over expenses from this activity before the calculation of income tax to cover expenses to be carried out at the expense of earmarked funds allocated according to the estimate.
The above provisions and norms of Art. 41, 42 of the RF BC, did not allow to qualify the income received by the institution from the implementation of income-generating activities as means of targeted financing that are not taken into account when determining the tax base for income tax. Including in the case of spending these funds to finance the statutory activities of the institution. Such a conclusion is contained in paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 No. 98 "Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter 25 of the Tax Code of the Russian Federation."
Later, when considering one of the cases, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated the following. The fact that an institution transferred funds to the relevant budget and then received them as additional financing does not relieve it from the obligation to include income from commercial activities in the tax base for income tax and does not deprive it of the right to take into account the relevant costs when calculating tax (decree of 16.10 .2007 in case No. A34-5791/06).
In 2011 and 2012, the arbitration courts of the Volga District considered a series of cases on private security at the departments of internal affairs, which provides services for a fee to legal entities and individuals in accordance with concluded agreements for the protection of their property.
Agreeing with the position of the tax authority on the additional charge of income tax, the courts, guided by the norms of Art. 321.1 of the Tax Code of the Russian Federation and the above information letter came to the following conclusion. Funds received by private security units in accordance with agreements on the protection of property cannot be qualified as funds for targeted financing that are not included in income for tax purposes on the basis of subpara. 14 p. 1 art. 251 of the Tax Code of the Russian Federation. Despite the fact that the revenues were transferred to the federal budget, and then the legal entity received them as funding.
However, considering the case А06-3221/2011 in the order of supervision and canceling the judicial acts of the lower courts of the Supreme Arbitration Court of the Russian Federation, I proceeded from the position set forth in the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 16.20.2007 No. 7657/07. Agreeing with the conclusion of the courts on the need to include funds received as payment for services rendered in taxable income, the Presidium considered that the taxpayer has the right to take into account the expenses incurred in the implementation of this activity when calculating income tax. In the opinion of the Supreme Arbitration Court of the Russian Federation, the inspection should have determined the ratio of income from the provision of security services in the total amount of funding received by the department and taking into account the provisions provided for in par. 3 paragraph 1 and paragraph 4 of Art. 321.1 of the Tax Code of the Russian Federation, as well as the principle of proportional distribution of costs, enshrined in par. 4 p. 1 art. 272 and paragraph 3 of Art. 321.1 of the Tax Code of the Russian Federation, determine the tax base for income tax. As previously stated, prior to January 1, 2011 Ch. 25 of the Tax Code of the Russian Federation contained Art. 321.1 of the Tax Code of the Russian Federation, which established the features of tax accounting by budgetary institutions. As of that date, this article is no longer valid.
Instead of this norm, Federal Law No. 239-FZ of July 18, 2011 (hereinafter referred to as Law No. 239-FZ) enacted a new article of Art. 331.1 of the Tax Code of the Russian Federation, which applies to legal relations that arose from January 1, 2011.
The new rule also retains the principle of proportional distribution of costs. Thus, in accordance with the norms of Article 331.1 of the Tax Code of the Russian Federation, taxpayers - budgetary institutions, until July 1, 2012 must distribute expenses incurred from income from the provision of paid services and income received as part of targeted financing in proportion to the share of income from the provision of paid services in the total the sum of all income. This procedure takes place if the allocated budget allocations provide for financial support for the costs of paying for utilities, communication services, transportation costs for servicing administrative and managerial personnel, and expenses for all types of repair of fixed assets.
The Tax Code establishes that for the purposes of taxation of profits, the company has the right to reduce the income received by the amount of expenses incurred. At the same time, reasonable and documented costs are recognized as expenses. Justified costs are understood as economically justified costs, the assessment of which is expressed in monetary terms. Expenses are recognized as any costs, provided that they are made for the implementation of activities aimed at generating income.
The concept of economic justification of expenses is not disclosed by the Tax Code. According to the financial department, the economic feasibility of the expenses incurred is determined not by the actual receipt of income, but by the focus on making a profit (letter of the Ministry of Finance of Russia dated October 27, 2005 No. 03-03-04 / 4/69). Thus, the acceptance of expenses for tax purposes is not excluded in the event of a loss.
In addition, in a letter dated 08.12.2006 No. 03-03-04 / 1 / 821, the Ministry of Finance of Russia clarified that chapter 25 of the Tax Code “Corporate Income Tax” does not make the procedure for recognizing expenses dependent on whether the organization had income or not . Therefore, the company takes into account expenses for the purposes of taxation of profits both in the period of receipt of income and during their absence, provided that the activities carried out are generally aimed at generating income.
However, the financial department does not always support taxpayers. The Ministry of Finance believes that in some cases, if a company has spent certain amounts and has not received a profit, it cannot reduce the tax cost. Thus, specialists of the financial department in a letter dated 01.21.2004 No. 04-02-05 / 3/1 explained that if the costs of participating in the competition (tender) for concluding an agreement that was lost did not lead to income, then it does not appear it is possible to recognize these expenses for the purpose of taxing the profit of the organization. However, in a letter dated October 31, 2005 No. 03-03-02/121, the financiers expressed a different point of view. The costs associated with participation in tenders that are lost can be recognized for income tax purposes if they are incurred in connection with the fulfillment of the requirements of the organizers of the tender, and are not returned to the company in case of loss. A similar opinion is contained in the letter of the Ministry of Finance of Russia dated November 7, 2005 No. 03-11-04/2/109.
If a company enters into an agreement with a recruitment agency for the recruitment of personnel and, as a result, does not hire anyone, then the cost of paying for such services cannot be taken into account when taxing profits. The Ministry of Finance of Russia, in a letter dated 06/01/2006 No. 03-03-04 / 1/497, claims that despite the fact that the costs of the services of recruitment agencies are related to other costs associated with production and sales, but at the same time, the company did not actually recruit workers , then these costs cannot be considered as economically justified. Thus, the costs associated with the payment of services for the selection of candidates who did not fit the organization should not be taken into account for income tax purposes.
In addition, if the firm provides training and scholarships to applicants, then, since the students are not employees of the organization, the cost of such payments cannot be taken into account as part of labor costs. However, if students are accepted into the staff of the organization upon graduation, these expenses may reduce the taxable base on profits. At the same time, according to financiers, there are no grounds for accepting expenses for paying scholarships to students who are not employed by the company (letters of the Ministry of Finance of Russia dated February 13, 2007 No. 03-03-06 / 1/77, dated November 30, 2006 No. 03- 03-04/2/252).
If the employer sends his employees on a business trip, which for some reason did not take place, he cannot include in the costs the amounts spent on obtaining visas. This position was expressed by the financial department in a letter dated 06.05.2006 No. 03-03-04/2/134. The financiers explained that, given the requirement of paragraph 1 of Article 252 of the Tax Code, the costs attributable to travel expenses should be associated with the employee's business trip, which is of a production nature. Therefore, if the employee did not go on company business, then the costs of processing and issuing visas cannot be taken into account as expenses for income tax purposes.
...and arbitrators
There are court decisions that support the point of view of the regulatory authorities in their disputes with taxpayers. Thus, some arbitrators believe that if a firm, having incurred certain expenses, did not receive income, then this fact contradicts the economic purpose of a civil law transaction. Consequently, “unprofitable” costs cannot be taken into account when taxing profits (decisions of the Federal Antimonopoly Service of the Moscow District dated November 21, 2005, November 14, 2005 No. KA-A40 / 11239-05, the Federal Antimonopoly Service of the East Siberian District dated December 14, 2006 No. A33-20675 / 05-F02 -5626/06-C1).
The claims of the tax authorities are often related to the disproportion between the expenses incurred and the income received. There are court decisions in favor of the inspectors (decisions of the Federal Antimonopoly Service of the North-Western District of March 6, 2007 No. A56-2666 / 2006, the Federal Antimonopoly Service of the Moscow District of December 7, 2006, December 14, 2006 No. KA-A40 / 11985-06). There is also good case law on this issue. In the decision of the Federal Arbitration Court of the Urals District dated May 11, 2005 No. F09-1927 / 05-C1, the arbitrators indicated that the disproportionateness of the costs incurred does not indicate their economic unreasonableness, if such costs are not aimed at making a one-time profit, but at receiving it in the future. However, the decision of the court depends on each specific situation. Thus, in the resolutions of the Federal Antimonopoly Service of the Volga District dated November 22, 2006 No. A12-8962 / 06, dated May 25, 2005 No. A49-91 / 05-40A / 19, the judges sided with the inspectors, since the transactions made by the taxpayer resembled tax evasion schemes.
However, most arbitrators still lean towards the side of the taxpayers. The court decisions have repeatedly stated that the economic feasibility of the costs incurred by the company is determined not by the actual income received in a particular period, but by the direction of the expenses incurred to generate income (decisions of the Federal Antimonopoly Service of the Central District dated February 4, 2005 No. A09-4844 / 04-30, district dated 02.05.2006 No. A56-18791 / 2005). In addition, the judges noted that the economic feasibility also depends on the specifics of the enterprise. And the fact that the company has no profit is not a sufficient basis for recognizing expenses as unreasonable (Decree of the Federal Antimonopoly Service of the North-Western District of August 30, 2005 No. A56-2639 / 2005). Moreover, the costs can be recognized as economically justified, even if they did not bring a specific return, but in general are necessary for the development of the company (Resolution of the Federal Antimonopoly Service of the Volga District dated 06.12.2005 No. A55-2176 / 05-10).
In addition, on June 4, 2007, the Constitutional Court of the Russian Federation adopted two rulings - No. 320-O-P and 366-O-P, concerning which expenses should be recognized as economically justified. The reasonableness of tax deductible expenses should be assessed in light of the circumstances that indicate the firm's intention to earn income. Moreover, the judges emphasized that it is about intentions and goals, and not about the result. Civil law considers entrepreneurial activity as independent, carried out at one's own risk and aimed at making a profit. After all, even with the utmost discretion, one cannot be completely sure that this or that transaction will bring high incomes. Thus, the validity of obtaining benefits cannot be made dependent on the efficiency of capital use. The Tax Code does not use the concept of economic benefit and does not regulate the procedure for conducting financial and economic activities, and therefore, the validity of expenses cannot be assessed in terms of their expediency and rationality. In addition, Article 8 of the Constitution of the Russian Federation enshrined the principle of freedom of economic activity, that is, the taxpayer, carrying out his activity, independently evaluates its effectiveness and expediency. The norms of the Tax Code require the establishment of the objectivity of the expenses incurred by the company, while the tax authorities must prove their unreasonableness.
Thus, the Constitutional Court confirmed that economically justified expenses are expenses that are initially aimed at generating income. And if in the future the company does not receive the expected profit, this does not mean that it will not be able to take into account the expenses incurred for profit tax purposes.
Expert of the company "Garant" T.A. Sychev
The list of expenses that can be accepted for income tax purposes is open in the Tax Code. On the one hand, this means that the company can take into account almost all costs (except those directly specified in Article 270 of the Tax Code of the Russian Federation) in expenses. It is enough that they are economically justified, documented and produced for activities aimed at generating income (Article 252 of the Tax Code of the Russian Federation). But on the other hand, on the basis of this provision, the tax authorities arbitrarily exclude expenses from taxable profits. Moreover, both traditionally controversial costs (for example, for marketing services) and inefficient from their point of view (for example, when there is no profit on the transaction).
Obviously, it is beneficial for the company to take into account as many expenses as possible for the purpose of taxing profits and thereby reduce the tax payable. Therefore, in order to do this without losses, it is necessary to think over in advance the confirmation of the expediency of expenses.
When the costs are considered economically justified
As arbitration practice shows, the main claim of the tax authorities is the economic groundlessness of expenses. Therefore, if you stock up on arguments confirming that the costs are economically justified, and properly document them, the risk of disputes can be reduced.
The Tax Code understands justified expenses as economically justified expenses, the assessment of which is expressed in monetary terms (paragraph 3, paragraph 1, article 252 of the Tax Code of the Russian Federation). However, there is no definition of economic feasibility of costs in any current regulatory act, including the Tax Code. This is an evaluation category. Therefore, the evidence in each situation may be different.
Expert comment
Zoya Ivanova, tax consultant at Energy Consulting:
Compliance by the taxpayer with the conditions stipulated by Article 252 of the Tax Code of the Russian Federation is one of the most controversial issues that arise during tax audits. The absence of a definition of "economic justification" established by law and its evaluative nature imply a subjective approach in determining the reasonableness of expenses for each taxpayer.
At the same time, as arbitration practice confirms, each of the parties must itself prove the validity or unreasonability of expenses. Thus, the Federal Arbitration Court of the North-Western District indicated that the tax authorities themselves must show the negative consequences of the disputed tax expenses for the financial and economic activities of the company when substantiating the position on the impossibility of recognizing these expenses for the purposes of taxation of profits (Decree No. A56-22455 of 21.02.05 / 04).
However, the economic feasibility of the costs and their connection with the receipt of income must be proved by the payer himself, since it is he who forms the base for income tax. At the same time, he has the right to provide any evidence of the reasonableness (reasonableness, expediency, necessity) of expenses (decisions of the federal arbitration courts of the West Siberian Court of 12.01.06 No. F04-9464 / 2005 (18398-A45-15), North-West of 22.09.05 No. A13-16254/2004-15 districts).
official position
- It should be borne in mind that the decision of the arbitration court is not an act of legislation on taxes and fees in the sense of Article 1 of the Tax Code of the Russian Federation. Like all court decisions, the ruling is adopted in connection with the consideration of the specific circumstances of the case and cannot automatically be considered as a methodological basis for the application of tax legislation.
Expert comment
Vasily Nekrasov, Leading Specialist of the Consulting Department of the Audit Department of SV-Audit CJSC:
- Claims of the tax authorities should be defended on the basis of paragraph 6 of Article 108 of the Tax Code. It says that a person is considered innocent of committing a tax offense until his guilt is proven in the manner prescribed by federal law. The accused person is not required to prove his innocence. The duty to prove the circumstances that testify to a tax offense and the guilt of a person in its commission is assigned to the tax authorities. Irremovable doubts about the guilt of the person called to account shall be interpreted in favor of this person.
Let's consider the most difficult situations in which the tax authorities oppose the acceptance of expenses to reduce profits on the basis of their unreasonableness. And we will decide what the company needs to do in advance in order to avoid these situations, and how to defend themselves if it comes to a dispute.
"Benefit" is not the same as "profit"
One of the situations where the tax authorities are unwilling to recognize expenses is when they receive a loss instead of a profit. For example, when the rent is less than the depreciation on the leased property, when the cost of maintaining the shop exceeds the income from its lease.
The controllers justify their position by the fact that the main goal of the activities of commercial organizations is to make profit (Article 50 of the Civil Code of the Russian Federation). Therefore, according to the tax authorities, expenses within the framework of systematically unprofitable activities are not economically justified. That is, if the transaction costs exceed the income received, they cannot be recognized as economically feasible and taken into account for profit taxation.
Expert comment
- If the financial result of the transaction turned out to be a loss, this loss is recognized for tax purposes in accordance with the generally established procedure. Another thing is that the very fact of receiving a loss can be further assessed from the point of view of the justification of a transaction at a loss. We must not forget that, according to Article 2 of the Civil Code of the Russian Federation, entrepreneurial activity is aimed at systematically making a profit from the use of property, the sale of goods, the performance of work, and the provision of services.
However, the Tax Code does not make the economic justification of expenses dependent on the financial performance of the company. Therefore, expenses can be recognized even if a loss is incurred.
Cases when companies are forced to sell their products at a loss are not isolated. This is usually due to a decrease in the quality of the product or a drop in demand for it due to the appearance of a new product on the market. In this situation, it is most profitable to discount such products and sell them at a price that may even be lower than their actual cost.
These actions can be justified by the fact that by selling the goods at a reduced price, the company will receive an economic benefit. Indeed, in such a situation, she will be able to avoid larger financial losses associated with the inability to sell this product at all. Therefore, the timely application of markdowns will partially offset the possible loss. In addition, the company reduces the risk of additional losses due to an increase in inventory in the form of the cost of storing goods, renting warehouses.
In order to convince the tax authorities to recognize such expenses for profit taxation, the company must show that it received an economic benefit from this business operation. For example, prepare calculations that, as a result of leasing property, the company received additional cash resources in the form of rent, without diverting working capital for expenses on this property (depreciation).
In such situations, the courts are on the side of the companies. The courts do not link economic feasibility with the volume of revenue or the profitability of the work and consider that the company has the right to independently determine the existence of economic benefits from a particular business operation, since economic feasibility does not equal economic efficiency. The latter is a qualitative indicator that characterizes how well the company conducts business activities (decisions of the federal arbitration courts of the Volga-Vyatka dated 03.11.05 No. A82-8102 / 2004-37, Moscow dated 05.08.05 No. KA-A40 / 7235-05, Severo -Zapadny dated 31.01.05 No. A268325 / 04-23 districts). Receipt of a loss under the transaction is not a basis for recognizing expenses as economically unjustified (decree of the Federal Arbitration Court of the Moscow District of May 6, 2005 No. КА-А40/3465-05).
Expert comment
Vladimir Andreev, Deputy Director of the Tax and Accounting Consulting Department of PGP LLC:
- The Tax Code does not correlate the reasonableness of costs and their connection with activities aimed at generating income. Arbitration practice shows that the economic feasibility of expenses is determined not by the actual receipt of income in a particular tax (reporting) period, but by the focus of such expenses on generating income. Therefore, when assessing the reasonableness of costs, one should proceed from the extent to which they were directed to generating income.
Zoya Ivanova, tax consultant at Energy Consulting:
- According to Article 41 of the Tax Code of the Russian Federation, economic benefits in cash or in kind are recognized as income for tax purposes. Thus, expenditures should be aimed specifically at generating income, and not profit, which is defined as a positive difference between income and expenses. Therefore, even if there is a loss, the company's activities will still be aimed at generating income. And the costs incurred for the implementation of these activities can be recognized as reasonable.
Note that the tax authorities can challenge the economic feasibility of expenses on the grounds that their size significantly exceeds income. Of course, it is worth paying attention to the reasonableness of expenses. But at the same time, the courts point out that irrational costs may also be economically justified, since the tax authority is not entitled to assess the effectiveness of doing business (resolution of the Federal Arbitration Court of the Volga-Vyatka District of July 28, 2005 No. A28-3008 / 2005-76 / 15) .
Expert comment
Svetlana Gavrilova, Leading Legal Consultant of the Consulting Department of FinExpertiza LLC:
- Arbitration courts note that paragraph 1 of Article 252 of the Tax Code of the Russian Federation does not directly indicate what the ratio of costs and financial results should be in order to recognize the costs as economically justified. Article 40 of the Tax Code of the Russian Federation can serve as such a criterion in determining the economic justification of costs. The court may oblige the parties to confirm the proportionality of costs to the market price, for example, for identical services (and in their absence, homogeneous) in comparable economic conditions (Resolution of the Federal Arbitration Court of the Moscow District dated 07.07.04 No. A05-12199 / 03-10). At the same time, one of the criteria for assessing the economic feasibility of expenses is the existence of a real opportunity to obtain the same result at the lowest cost (Decree of the Federal Arbitration Court of the Volga-Vyatka District dated April 27, 2006 No. A29-6475 / 2005a).
Thus, the economic justification of expenses is not related to their economic efficiency, but can be related to economic expediency, reasonableness, and necessity. Also, the economic feasibility of expenses is determined by their focus on generating income, but is not excluded by a loss or excess of expenses over income in a certain tax period. And the criterion of economic justification can be article 40 of the Tax Code of the Russian Federation.
Expenses that are not aimed at generating income
The Tax Code does not establish an assessment of the economic efficiency of expenditures as a criterion for the formation of the tax base. Therefore, even if the expenses themselves are not directed directly to generating income, they can still be taken into account for tax purposes. The main condition is that they must correspond to the activities carried out.
Thus, the Tax Code does not require that non-operating expenses must be directed to generating income and material benefits. To account for them, it is sufficient that they are related to activities aimed at generating income (decree of the Federal Arbitration Court of the Central District dated 05.12.05 No. A48-3757 / 05-8).
Expert comment
Elena Popova, State Adviser of the Tax Service of the Russian Federation, 1st rank:
- According to article 252 of the Tax Code of the Russian Federation, the taxpayer reduces the income received by the amount of expenses incurred. Here, the Code does not single out what kind of income and what kind of expenses - non-operating or related to production and sales, and gives a general principle.
For example, a company, having received a loan from a bank, at the same time provided interest-free loans to its subsidiaries. At the same time, she reduced taxable income by the amount of interest on a bank loan. During the audit, the tax authorities ruled out the cost of paying bank interest as economically inexpedient. However, the court concluded that economic feasibility is determined not by the actual receipt of income in a particular tax period, but by the direction of such expenses for generating income. The focus on generating income was expressed in supporting the subsidiaries of this company, which were its suppliers of raw materials (resolution of the Federal Arbitration Court of the North-Western District dated February 7, 2005 No. A26-7069 / 04-212). Immediately, we note that the courts do not classify the activity of using a bank loan as a relationship that should be checked for their economic feasibility (Decree of the Federal Arbitration Court of the Volga-Vyatka District dated January 30, 06 No. A82-9347 / 2004-37).
Therefore, in order to justify the inclusion of, for example, interest on misuse of a loan, you can provide evidence of indirect benefits in all of your financial and economic activities. The tax authorities themselves emphasize that expenses can be considered economically justified even if they do not bring a specific return on their own, but are generally necessary to ensure activities aimed at generating income (letter of the Ministry of Taxes of Russia dated September 27, 04 No. 02-5-11 / 162) .
official position
Tatyana Severova, Leading Specialist of the Department of Taxation of Profit (Income) of Organizations of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia:
- Explanations regarding economically justified expenses were given in the now invalid Methodological Recommendations on the Application of Chapter 25 "Corporate Income Tax" of Part Two of the Tax Code of the Russian Federation *. In accordance with them, economically justified expenses should be understood as expenses due to the goals of obtaining income, satisfying the principle of rationality and due to the customs of business turnover. This definition remains relevant today.
Thus, in order to take into account certain expenses for the purposes of taxation of profits, the payer must clearly and unambiguously disclose and prove to the tax authority their validity. At the same time, it is recommended to fix the reasonableness of expenses in the internal documents of the organization (orders, instructions, job descriptions, etc.).
Expenses from the "risk group"
Now let's move on to the most popular expenses that tax authorities seek to exclude from the tax base in the first place. Even if a profit is made from a transaction or activity, tax authorities may question the very need for certain expenses. Therefore, when planning them, it is necessary to prepare an evidence base in advance to assess their economic feasibility.
For example, the increased attention of tax authorities is caused by contracts for the provision of services. Practice shows that controllers, as a rule, question the economic feasibility of legal, informational, consulting, and marketing research services**.
At the same time, if the company has employees with similar functions, the risk that the tax authorities will be against accounting for expenses for third-party consultants almost doubles (letter of the Ministry of Finance of Russia dated 03.07.06 No. 03-03-04 / 1/555). True, the courts in such situations are mainly on the side of the companies (decisions of the federal arbitration courts of the Volga-Vyatka of 08.08.05 No. A82-11632 / 2004-37, of the West Siberian of 18.07.05 No. F04-4616 / 2005 (13098-A27- 40), dated 15.03.06 No. Ф04-1847/2006 (20709-А67-40) districts). Therefore, when concluding a contract for the provision of services, it is desirable that the company does not have structural divisions or employees whose qualifications and functions would cast doubt on the justification of these costs. If this cannot be avoided, it is better to indicate in the contract with the contractor the list of services that are not included in the duties of a full-time employee.
The organization evaluates the degree of economic justification of expenses independently. None of the branches of law contains a definition of this term.
Previously, the interpretation of this concept was given by paragraph 5 of the Guidelines for the application of Chapter 25 of the Tax Code of the Russian Federation, approved by order of the Ministry of Taxes of Russia dated December 20, 2002 No. BG-3-02 / 729. It stated that "economically justified costs should be understood as costs due to the goals of generating income, satisfying the principle of rationality and due to the customs of business turnover." However, by order of the Federal Tax Service of Russia dated April 21, 2005 No. SAE-3-02 / 173, these recommendations were canceled.
Thus, at the moment the concept of "economic justification" is evaluative. An analysis of judicial practice allows us to identify the following criteria for the economic feasibility of expenses:
- the presence of a direct relationship between expenses and entrepreneurial activities (see, for example, the resolutions of the Federal Antimonopoly Service of the Moscow District dated May 30, 2013 No. A40-79395 / 12-90-422 and September 4, 2012 No. A40-9474 / 12-140-44 );
- the orientation of the costs incurred to generate income, which is determined by the result of all economic activities of the organization, and not by income in a particular tax period (determinations of the Supreme Arbitration Court of the Russian Federation dated January 19, 2009 No. 17071/08, the Constitutional Court of the Russian Federation dated June 4, 2007 No. 320- O-P, resolutions of the Federal Antimonopoly Service of the Moscow District of September 11, 2013 No. A40-115264 / 12-90-585, of the East Siberian District of February 25, 2013 No. A78-5170 / 201, of the Central District of September 24, 2012 No. А14-10351/2011);
- connection of expenses with the obligations of the organization, the terms of the contract or the provisions of the law (see, for example, the decisions of the Federal Antimonopoly Service of the Central District of April 9, 2013 No. A35-7128 / 2012, the North Caucasus District of July 25, 2012 No. A53-11418 / 2011 );
- compliance of prices with the market level (see, for example, the resolutions of the FAS of the East Siberian District of November 19, 2013 No. A33-16624 / 2012, the Volga-Vyatka District of March 18, 2011 No. A82-8294 / 2008).
The Federal Tax Service of Russia has proposed its own criteria for assessing the economic feasibility of expenses when calculating income tax. They are set out in the letter of the Federal Tax Service of Russia dated April 27, 2007 No. MM-6-02 / 356 for internal use, the provisions of which the tax inspectorates will use in their work.
First, when calculating income tax, any reasonable expenses can be recognized. And not only those that are directly named in Chapter 25 of the Tax Code of the Russian Federation. This is due to the fact that the list of expenses taken into account when calculating income tax is open (subclause 49, clause 1, article 264, subclause 20, clause 1, article 265 of the Tax Code of the Russian Federation).
Secondly, expenses are recognized as justified if they are related to activities aimed at generating income (letters of the Ministry of Finance of Russia dated September 5, 2012 No. 03-03-06 / 4/96, dated April 21, 2010 No. 03-03- 06/1/279). This focus does not mean that the organization must necessarily make a profit from the implementation of expenses. There may also be a loss. At the same time, unprofitability should be assessed not for a separate operation, but as a whole for a specific type of activity of the organization. For example, one-time sales of goods at prices below purchase prices do not indicate the absence of economic justification for the costs. If the organization trades at a loss on a systematic basis, in connection with which this type of activity is unprofitable, then the costs of acquiring goods may be recognized as economically unjustified.
The reasonableness of expenses that are not related to a specific type of activity should be assessed based on the economic effect of their commission. For example, when determining the reasonableness of expenses for managing an organization, the tax inspectorate will analyze whether the economic indicators of the organization have changed. If, after the conclusion of the introduction of external management, these indicators have deteriorated, then this will be the basis for checking the purpose of these expenditures.
Thirdly, expenses are unreasonable if they were made for the sole purpose of saving on income tax. That is, expenses that were not aimed at generating income, but at obtaining unjustified tax benefits in the form of savings on income tax, should not be taken into account when calculating income tax. The criteria for recognizing a tax benefit as unreasonable are defined in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 53.
Advice: in order to take into account expenses when taxing profits, the procedure for reflecting which is not prescribed in the legislation, the organization must clearly show their economic feasibility. Take care of this in advance. Fix the economic feasibility of certain expenses in the internal documents of the organization (orders, instructions, job descriptions of employees, etc.).
For example, purchase easy-to-remember telephone numbers for the organization by order of the head.
Situation: who must prove the economic feasibility of expenses when calculating income tax?
It is up to the tax office to prove that the expenses are not economically justified. This follows from part 5 of article 200 of the Arbitration Procedure Code of the Russian Federation. This point of view is confirmed by the letters of the Ministry of Finance of Russia dated April 10, 2013 No. 03-03-06 / 2 / 11897, dated October 9, 2012 No. 03-03-06 / 1 / 535, the rulings of the Constitutional Court of the Russian Federation dated January 25, 2012 No. 134-O-O, dated June 4, 2007 No. 320-O-P, dated June 4, 2007 No. 366-O-P, by resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 10, 2007 No. 2236/07, Plenum The Supreme Arbitration Court of the Russian Federation of October 12, 2006 No. 53, as well as the district arbitration practice (see, for example, the decisions of the FAS of the Far Eastern District of July 17, 2013 No. F03-2803 / 2013, the Volga-Vyatka District of August 7, 2012 No. A29-5041 / 2011, East Siberian District dated June 26, 2013 No. A19-18625 / 2012).
Situation: Are the indirect costs associated with the initial stage of the activity of the newly created organization recognized as economically justified? The preparatory costs were incurred in periods when the organization did not yet have income.
Yes, they do.
When calculating income tax, an organization has the right to take into account documented indirect costs that are associated with activities aimed at generating income, but incurred in those periods when the organization had no income yet.
Chapter 25 of the Tax Code of the Russian Federation is not based on the principle of matching income and expenses. Therefore, when calculating income tax, an organization has the right to take into account expenses incurred both in periods of receipt of income and in periods in which there was no income. The main condition is that the activity of the organization as a whole is aimed at generating income. Even if the income will be received in the future. Therefore, if an organization incurs costs, hoping to receive revenue with their help in the future, then such costs can be recognized as economically justified and taken into account when calculating income tax. A similar conclusion is contained in the letters of the Ministry of Finance of Russia dated April 21, 2010 No. 03-03-06 / 1/279, dated February 11, 2010 No. 03-03-06 / 1/66, the Federal Tax Service of Russia dated April 27, 2007 No. MM-6-02/356. Arbitration courts take the same position (see, for example, resolutions of the Federal Antimonopoly Service of the Moscow District of March 31, 2010 No. KA-A40 / 2740-10, of the Volga District of August 27, 2009 No. A57-3361 / 2009, of the North-Western District dated May 2, 2006 No. А56-18791/2005, Volga-Vyatka District dated June 9, 2006 No. А38-4713-12/257-2005(12/7-2006), Ural District dated August 9, 2005 No. F09-3333/05-S1).
The organization determines the list of direct and indirect costs independently (clause 1, article 318 of the Tax Code of the Russian Federation). Therefore, part of the costs associated with the initial stage of the activity of a newly created organization (for example, the cost of paying management personnel, renting and maintaining an office, communication services, etc.) can be taken into account when calculating income tax as part of indirect costs in the reporting period in which these costs were incurred (clause 2, article 318 of the Tax Code of the Russian Federation). Similar explanations are contained in the letter of the Federal Tax Service of Russia dated April 21, 2011 No. KE-4-3 / 6494.
If, following the results of the tax period, the expenses incurred have led to a loss, its amount can be transferred to the future (clause 1, article 283 of the Tax Code of the Russian Federation). The provisions of paragraph 1 of Article 283 of the Tax Code of the Russian Federation apply, among other things, to newly created organizations. Similar explanations are contained in the letters of the Ministry of Finance of Russia dated August 26, 2013 No. 03-03-06/1/34810, dated April 21, 2010 No. 03-03-06/1/279.
Situation: is it possible to take into account the costs of creating a separate subdivision (branch, representative office) when calculating income tax?
Yes, you can.
To do this, the costs associated with the creation of separate divisions (branches, representative offices) should be:
- economically justified;
- documented .
Recognize the costs of creating a separate subdivision according to the rules established by Chapter 25 of the Tax Code of the Russian Federation. So, for the premises and equipment purchased for the branch, charge depreciation. And if the premises are rented, then rental payments can be included in the expenses as the lessor issues acts on the provision of services (other documents) (subclause 3, clause 7, article 272 of the Tax Code of the Russian Federation). If an organization uses the cash method, rental services must not only be provided, but also paid for (clause 3, article 273 of the Tax Code of the Russian Federation).
At the same time, the costs associated with the opening of a separate subdivision can be taken into account when calculating income tax, regardless of when it begins to operate. For example, the premises for the branch have been rented since July, and it will start working only in September. In this case, the rent for July and August can be written off as an expense without waiting until September.
Similar clarifications are contained in the letters of the Ministry of Finance of Russia dated February 15, 2007 No. 03-03-06 / 2/26, dated April 24, 2006 No. 03-03-04 / 2/118, the Federal Tax Service of Russia for Moscow dated January 11 2012 No. 16-15/000705.
Situation: is it possible to take into account, when calculating income tax, expenses that did not lead to a positive result (receipt of income, conclusion of an agreement, victory in a competition (tender) for concluding a profitable contract)?
Yes, you can.
One of the conditions for the recognition of expenses when calculating income tax is their focus on generating income (clause 1, article 252 of the Tax Code of the Russian Federation). It is the direction, and not the condition for achieving a specific positive result. Thus, even if any expenses of the organization did not lead to the planned result (receipt of income, conclusion of a contract), they can still be taken into account. The main thing is that all other conditions for their recognition are met:
- costs are economically justified;
- expensesdocumented .
This is required by paragraph 1 of Article 252 of the Tax Code of the Russian Federation.
For example, if an organization hashospitality expenses , but as a result of the negotiations, an agreement was not signed, the amounts spent can be taken into account when calculating income tax (within the limits). This follows from the provisions of subparagraph 22 of paragraph 1 of article 264 of the Tax Code of the Russian Federation and is confirmed by the letter of the Ministry of Finance of Russia dated April 10, 2013 No. December 23, 2008 No. F09-8529 / 08-S2, dated June 17, 2004 No. F09-2441 / 04AK, of the North-Western District of November 21, 2005 No. A44-1354 / 2005-15, of the Volga District of 22 - March 29, 2005 No. A12-18384 / 04-C36).
With regard to expenses associated with participation in tenders or competitions, the position of the Russian Ministry of Finance is ambiguous. In some letters, the financial department opposes the reduction of taxable income due to the costs of participation in competitions (tenders) that did not give a positive result (letters of the Ministry of Finance of Russia dated July 24, 2006 No. 03-03-04 / 2/179, dated January 21, 2004 No. 04-02-05/3/1). These are competitions that are not related to the production activities of the organization (for example, a competition for an international award) and that do not bring any economic return. In both cases, the Russian Ministry of Finance believes that the costs of participating in such events are not justified.
However, subject to certain conditions, the Ministry of Finance of Russia agrees that the costs of participation in tenders can be written off as a reduction in taxable income (letters dated January 16, 2008 No. 03-03-06 / 1/7, dated October 31, 2005 No. 03 -03-02/121, dated November 7, 2005 No. 03-11-04/2/109). To do this, the costs incurred must:
- be a prerequisite for participation in the tender, as a result of which the organization may receive a contract;
- not be reimbursed to the organization at the end of the competition.
It should be noted that the Tax Code of the Russian Federation expressly provides for the inclusion in the calculation of income tax of certain costs that did not give a positive result, for example, certain types of R&D expenses (clause 2 of article 262 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated December 24, 2009 No. 03 -03-05/251).
Situation: is it possible to take into account the costs of paying for the services of recruitment agencies in the absence of a positive result when calculating income tax?
No you can not.
The costs of recruiting personnel, including the payment for the services of recruitment agencies, can be taken into account as part of other expenses only on one condition - the organization has actually recruited employees (subclause 8, clause 1, article 264 of the Tax Code of the Russian Federation). Otherwise, such costs cannot be considered as economically justified. Therefore, it is impossible to reduce taxable profit on them (clause 1, article 252 of the Tax Code of the Russian Federation). This position is held by the regulatory authorities (letters of the Ministry of Finance of Russia dated September 4, 2008 No. 03-03-06 / 1/504, dated June 1, 2006 No. 03-03-04 / 1/497 and the Federal Tax Service of Russia for Moscow dated March 22, 2005 No. 20-12/19398).
Advice: there are arguments that allow organizations to take into account the costs of recruiting personnel (including for paying for the services of recruitment agencies) when calculating income tax in the absence of a positive result. They are as follows.
Tax legislation does not contain direct restrictions on the recognition of expenses that have not yielded a positive result. In addition, expenses are recognized as economically justified if they are related to activities aimed at generating income (paragraph 4, clause 1, article 252 of the Tax Code of the Russian Federation). The Tax Code of the Russian Federation does not speak about efficiency (positive result of spending) (determination of the Constitutional Court of the Russian Federation dated June 4, 2007 No. 320-O-P). This is confirmed by the tax office. In Letter No. MM-6-02/356 dated April 27, 2007, the Federal Tax Service of Russia proposed its own criteria for assessing the economic feasibility of expenses when calculating income tax. This letter was developed by the tax authorities for internal use.
Therefore, when looking for personnel, the organization aims to benefit from the work of new employees. So, initially such expenses are aimed at generating income.
The legality of this point of view is also confirmed by judicial practice. In the decisions of the Federal Antimonopoly Service of the Moscow District dated November 9, 2007 No. KA-A40 / 10001-07 and the Volga District dated May 22, 2007 No. A55-29883 / 05-53, the judges indicated that recruitment costs relate to other expenses related to with production and sale (subclause 8, clause 1, article 264 of the Tax Code of the Russian Federation). At the same time, the Tax Code of the Russian Federation does not require as an additional condition for recognizing the costs of hiring candidates who were offered by a recruitment agency.
The validity of the costs of paying for recruitment services is determined not by the final result of such services, but by the very fact of their provision, that is, the actual activity of the contractor, aimed at finding, selecting and providing candidates to fill vacancies. If the organization did not consider it possible to employ the proposed candidate or if the employee was fired after hiring, then this is not a basis for recognizing such expenses as economically unjustified. Such conclusions are contained in the definition of the Supreme Arbitration Court of the Russian Federation of June 20, 2008 No. 7520/08, the decisions of the FAS of the Ural District of February 19, 2008 No. F09-477 / 08-C2, of the Moscow District of March 13, 2009 No. KA-A40 / 1354-09.
And in the resolutions of January 17, 2006 No. A74-2403 / 05-F02-6860 / 05-S1 and of January 11, 2006 No. A10-4653 / 05-F02-6684 / 05-S1, the FAS of the East Siberian District indicated that the assessment of the economic efficiency of the organization's expenses is not provided for by the tax legislation as a criterion for the formation of the tax base. Controversial expenses correspond to the activities of the organization, which already indicates their economic justification.
It is possible to reduce the risks during verification. For example, in an agreement with a recruitment agency, indicate that the organization will pay for the recruitment only after the candidate is enrolled in the state. Or indicate in the contract that the agency, in addition to recruitment services, provides information (provides information about available candidates) and consulting (for example, preliminary testing of applicants) services. After the services have been rendered, it will be reflected in the acceptance certificate and invoice that information (consulting) services have been provided. Take into account the costs of them when calculating income tax in full (subparagraphs 14, 15, paragraph 1, article 264 of the Tax Code of the Russian Federation).
Situation: is it possible to take into account, when calculating income tax, the costs associated with paying for services for the provision of personnel under an outsourcing agreement? The organization has departments with similar functions.
Yes, you can, if the involvement of additional staff is caused by objective reasons.
When calculating income tax, an organization has the right to take into account any economically justified expenses that are documented and related to activities aimed at generating income. This follows from the provisions of paragraph 1 of Article 252 of the Tax Code of the Russian Federation.
The costs of paying for services under outsourcing agreements can be recognized as economically justified if the involvement of additional personnel (including for the performance of functions assigned to the operating divisions of the organization) is due to objective reasons. For example, if due to a shortage of full-time employees, additional staff is attracted by an organization with a continuous production cycle. Such a conclusion can be drawn from the letters of the Ministry of Finance of Russia dated October 16, 2015 No. 03-03-06 / 59283, dated August 2, 2011 No. 03-03-06 / 1/444.
In other cases, the costs of paying for services under outsourcing agreements are recognized as economically justified only if the functions performed by the involved personnel do not duplicate the duties of the organization's regular divisions. This is stated in the letters of the Ministry of Finance of Russia dated April 5, 2007 No. 03-03-06 / 1/222, dated December 6, 2006 No. 03-03-04 / 2/257, dated May 31, 2004 No. 04- 02-05/3/42 and the Federal Tax Service of Russia dated October 20, 2006 No. 02-1-08/222. This position is shared by some arbitration courts (see, for example, the rulings of the Supreme Arbitration Court of the Russian Federation of October 4, 2010 No. VAS-13023/10, of August 21, 2007 No. 9765/07, the decisions of the FAS of the North Caucasus District of May 27, 2010 No. А53-16012/2009, Volga District dated October 4, 2012 No. А65-21503/2011, dated April 12, 2011 No. А55-14064/2009, Northwestern District dated May 21, 2007 No. А42- 5065/2006 and dated April 9, 2007 No. A05-5024 / 2006-12, of the East Siberian District dated December 27, 2006 No. A19-6451 / 06-33-F02-6879 / 06-S1 and dated May 31, 2006 No. А19-39593/05-51-Ф02-2541/06-С1, West Siberian District dated January 25, 2006 No. Ф04-3285/2005 (19082-А27-15)).
Advice: there are reasons to take into account the costs of paying for services under an outsourcing agreement, even if the organization has divisions with similar functions in its staff. They are as follows.
The legislation does not prohibit organizations from engaging personnel under an outsourcing agreement if there are full-time personnel (structural divisions) with similar functions.
In itself, the presence of full-time employees whose duties coincide with those for which additional staff is involved is not a reason to recognize such costs as economically unjustified. The Tax Code of the Russian Federation does not contain norms that would allow tax inspectorates to assess the economic feasibility of an organization's expenses. Assessment of the appropriateness of the costs of paying for certain services is in the exclusive competence of the organization. This position is set out in the ruling of the Constitutional Court of the Russian Federation dated June 4, 2007 No. 320-O-P.
If an organization documents the costs of attracting personnel under an outsourcing agreement, then it has the right to take them into account when calculating income tax. This conclusion is confirmed by arbitration practice (see, for example, the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 18, 2008 No. 14616/07, the rulings of the Supreme Arbitration Court of the Russian Federation of May 12, 2008 No. 5971/08, of January 30, 2008 No. 199/08 , resolutions of the Federal Antimonopoly Service of the West Siberian District dated January 21, 2008 No. F04-231 / 2008 (681-A27-40), dated September 17, 2007 No. F04-6333 / 2007 (38133-A27-15), dated March 12 2007 No. F04-1338 / 2007 (32306-A46-26) and dated June 13, 2007 No. F04-3766 / 2007 (35114-A27-40), Moscow District dated November 9, 2012 No. A40-14280 / 12-107-69, February 9, 2012 No. А40-131877/10-114-778, December 13, 2010 No. КА-А40/15170-10, July 15, 2009 No. КА-А40/6230 -09, dated May 5, 2009 No. КА-А40/3335-09, Volga District dated March 16, 2011 No. А65-10683/2010, dated April 27, 2007 No. А55-11750/06-3 and dated 16 March 2007 No. A57-10728 / 06-25, North-Western District dated December 7, 2007 No. A66-2645 / 2007, dated September 7, 2007 No. A05-10534 / 2006-26, dated July 19, 2007 No. A56-35010 / 2006, dated February 14, 2007 No. A66-16934 / 2005, Ural District dated December 23, 2011 No. Ф09-8273 / 11, dated December 13, 2006 No. Ф09-11058 / 06-С7 , dated April 12, 2006 No. Ф09-2615 / 06-С7 and the Central District dated June 23, 2006 No. А64-10456 / 05-13).
Situation: is it possible to take into account when calculating income tax the amounts that the organization transfers for charitable purposes (for example, to provide assistance to victims of man-made disasters, military operations, natural disasters, terrorist acts)?
No you can not.
All expenses of the organization, which are included in the calculation of taxable profit, must simultaneously be:
- economically justified;
- documented .
If at least one of these conditions is not met, the expenses are not recognized for tax purposes.
This procedure is provided for by paragraph 1 of Article 252 of the Tax Code of the Russian Federation.
It is obvious that spending on charitable purposes has nothing to do with income-generating activities. Therefore, it is unlawful to include them in the calculation of the tax base for income tax. A similar point of view is reflected in the letter of the Ministry of Finance of Russia dated October 11, 2007 No. 03-03-07 / 18. In addition, any charitable assistance involves the donation of money or material values. And expenses in the form of the value of property transferred free of charge and expenses associated with such a transfer cannot be taken into account when calculating income tax (clause 16, article 270 of the Tax Code of the Russian Federation).
In accounting, expenses related to charitable activities are recognized as other and reflected in account 91. This is stated in paragraph 11 of PBU 10/99. Thus, when providing charitable assistance, a constant difference will arise, with which it is necessary to calculate the permanent tax liability (clauses 4 and 7 of PBU 18/02).
An example of reflection in accounting and taxation of expenses for the provision of charitable assistance
According to the decision of the founders, LLC "Torgovaya firm "Germes"" transfers 100,000 rubles. to the settlement account opened to provide assistance to flood victims, and transfers a truck to the relief fund. The initial cost of the car is 1,180,000 rubles. (including VAT - 180,000 rubles), residual - 833,333 rubles, the amount of accrued depreciation - 166,667 rubles.
When transferring property for charitable purposes, the organization applies the VAT exemption provided for by subparagraph 12 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation. Therefore, the amount of VAT deductible when purchasing a car is subject to recovery. The amount of VAT to be recovered is 150,000 rubles.
The following entries were made in the accounting records of the organization:
Debit 91-2 Credit 76
- 100,000 rubles. - reflects the amount of charitable assistance to be transferred in favor of the victims;
Debit 76 Credit 51
- 100,000 rubles. - the amount of charitable assistance was transferred;
Debit 01 subaccount "Retirement of fixed assets" Credit 01
- 1,000,000 rubles - reflects the initial cost of the retired car;
Debit 02 Credit 01 sub-account "Retirement of fixed assets"
- 166,667 rubles. - reflected depreciation accrued for the period of operation of the car;
Debit 91-2 Credit 01 sub-account "Retirement of fixed assets"
- 833,333 rubles. - reflects the residual value of a fixed asset donated;
Debit 19 Credit 68 sub-account "VAT calculations"
- 150,000 rubles. - restored VAT, previously accepted for deduction;
Debit 91-2 Credit 19
- 150,000 rubles. - the recovered amount of VAT is written off.
Since charitable expenses do not reduce the taxable income of the organization, the Hermes accountant recorded a permanent tax liability in accounting:
Debit 99 subaccount "Permanent tax liabilities" Credit 68 subaccount "Calculations for income tax"
- 216,667 rubles. ((100,000 rubles + 833,333 rubles + 150,000 rubles) × 20%) - a permanent tax liability is reflected from the amount of charitable assistance that is not taken into account for income taxation.