Zero VAT rate for export. Confirmation of zero rate when exporting. Export how to confirm the zero rate.
According to Art. 164 of the Tax Code (Clause 1) when selling goods for export, the payer may calculate VAT at the rate of 0%. In order to use this right, an economic entity has to meet certain conditions - it is necessary to prove the fact of export of goods from the Russian Federation and provide documents on export operations. In Art. 165 of the Tax Code of the Russian Federation lists the list of such documents.
The calculation of VAT at the rate of 0% is of particular interest to the regulatory authorities, which is why taxpayers, by applying this tax rate, should be ready to prove the validity of their actions.
When non-justifying documents justifying the export in time (180 days from the date the goods are placed under the export regime), the product owner should calculate the tax at the commonly used tax rate, he also has to pay interest calculated from the date of shipment of the goods until the arrears are paid.
The list of documents include: contract; customs declaration; transport documents. However, even the submission of all necessary supporting documents will not relieve the exporter from possible problems, since errors and inaccuracies may be made during the execution of customs documents.
The plot of the case:
Ltd. in order to apply the VAT at the rate of 0%, the following documents were provided: a contract for the export of goods, waybills, goods declarations (hereinafter referred to as DT) with a customs stamp “release allowed”, transport and shipping documents.
The controlling body, considering that the documents of the Company do not contain information about customs on the export of goods (there is no stamp imprint “goods exported”), found that the sale of goods by DT was not confirmed by the payer.
The international waybills (CMR) do not contain data on the location of the goods under control, there are no signatures of the sender, recipient and carrier, data on arrival / departure for loading and unloading.
The deficiencies in filling out the documents revealed by the controlling body during the cameral inspection caused the refusal to return the VAT to the Company.
Considering the application of the LLC challenging the decision of the tax authority, the court of first instance did not agree with the position of the tax authority, which asserted that the documents, if they were not properly compiled, do not confirm the export of the goods.
The court assessed the submitted data of the customs, which confirmed the fact of export of goods from the Russian Federation (except for two diesel fuel) and the absence of violations of customs legislation.
Based on the provisions of the Instruction on the procedure for filling out the declaration (Decision of the Customs Union Commission dated 20.05.2010 N 257), according to which the “Release is permitted” stamp is affixed to DT, the court agreed with the applicant's arguments that the release is allowed in the submitted DT , the customs authorities of Russia do not make any other marks, and the Tax Code does not provide for any confirmation from the customs authorities.
However, the appellate court overturned the adopted judicial act, refused to satisfy the taxpayer.
Judicial act: Resolution of the Twelfth Arbitration Court of Appeal in the case of A06-8105 / 2018 of 24.05.2019
The findings of the court:
1. The court took into account the lack of confirmation of customs for two DTs on the export of goods. The absence of the goods “exported” customs stamps and international consignment notes of the customs, the mark of the goods under control, as well as the sign of the sender, recipient and carrier, of the arrival / departure data for loading and unloading indicates the non-delivery a package of documents confirming the right to a zero rate of VAT.
2. In order to substantiate the possibility of using a zero VAT rate, the payer is obliged not only to realize the sale of products for export, but also to provide duly executed documents accompanying the export of products, to reflect their conduct in the declaration.
Comments:
1) VAT at the rate of 0% can be calculated in case of sale of products (goods) for export, sale of works or services aimed at importing and exporting goods from the Russian Federation. To apply this rate, the payer should collect supporting documents (Art. 165 of the Tax Code of the Russian Federation); fill out a declaration, submit documents and a tax return.
2) In practice, VAT payers often deal precisely with the problem of documenting the justification of their right to apply a zero VAT rate when conducting a particular operation. Submission of the necessary documents that meet the requirements of Art. 165 of the Tax Code, only confirms the export of goods, but is not an indisputable basis for calculating the tax at a zero tax rate in order to refund it.
3) The most important factor for confirming VAT at the rate of 0% is the presence of a customs stamp on the customs declaration. Two types of impressions are possible: “Release allowed” - on placing goods under the export procedure; "Goods exported" - on the export of goods from the territory of the Russian Federation.
4) To realize the right to a zero rate, the waybill must have a stamp "Goods exported", indicating the export of goods outside of the Russian Federation, and not just the stamp "Export allowed". Failure to produce the “Goods exported” stamp on the CMR cannot be replaced with the content of other documents provided for in Article 165 of the Tax Code of the Russian Federation, in this situation there is a high probability of being refused tax refund.
5) The list of types of documents takes precedence, which makes it impossible for taxpayers to prove in other ways the fact of exporting goods (works, services) and their right to use a zero VAT rate.
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