Late invoicing - a problem or a bubble? When and what fine can be collected for late submission of documents or information to the tax office in favor of the taxpayer.

When preparing invoices by sellers, you can find various options for dating them, which are discussed below.

The invoice is dated by the date of actual shipment of goods, performance of work, provision of services.

According to Article 169 of the Tax Code of the Russian Federation, an invoice is a document that serves as the basis for accepting the presented amounts of tax for deduction or reimbursement from the buyer in the prescribed manner. Invoices drawn up and issued in violation of the procedure established by paragraphs 5 and 6 of this article cannot be the basis for accepting tax amounts presented to the buyer by the seller for deduction or reimbursement.

Based on Article 171 of the Tax Code of the Russian Federation, the taxpayer has the right to reduce the total amount of tax calculated in accordance with Article 166 of the Tax Code of the Russian Federation by the tax deductions established by this article. Tax amounts presented to the taxpayer upon acquisition of goods (work, services) on the territory of the Russian Federation in relation to goods (work, services) purchased to carry out transactions recognized as objects of taxation are subject to deductions.

Such tax deductions are made on the basis of invoices issued by sellers when the taxpayer purchases goods (works, services). Subject to deductions, unless otherwise established by Article 172 of the Tax Code of the Russian Federation, are only tax amounts presented to the taxpayer after the specified goods (works, services) have been registered, taking into account the features provided for in this article and in the presence of relevant primary documents.

Thus, the taxpayer has the right to tax deductions subject to three conditions:

· goods, works, services must be accepted for accounting;

· the specified goods (works, services) are used in activities subject to VAT;

· We have an invoice for purchased goods, works, and services.

If all the above conditions are met, VAT can be deducted during the tax period.

If the invoice date coincides with the shipment date, then this option is the most preferable for both the seller and the buyer, since both primary documents (invoices, certificates of work performed) and invoices have the same number, which does not cause disagreements when reconciliation between counterparties, and there are also no claims from the tax authorities. This is ideal. However, in practice this ideal state of affairs is often not observed.

When maintaining a purchase book, in column 2 you should indicate “the date and number of the supplier’s invoice.” Clause 8 of the Maintenance Rules requires that invoices received from sellers be registered in the purchase ledger in chronological order as purchased goods (work performed, services rendered) are registered. Moreover, neither the date of issuance of the invoice by the seller, nor, especially, the date of its receipt by the buyer, based on the text of paragraph 8 of the Rules, are involved in determining the order of registration of invoices in the purchase book. Although for the buyer these dates are the basis for making an entry in the purchase book.

Often, with a significant document flow of an enterprise, situations often arise when an invoice arrives at the enterprise far beyond the deadline established by law for its preparation to the buyer. The culprit for the delay may also be the supplier, who did not consider it necessary to bring the issued invoice to the buyer, especially for periodic services, sometimes this can also happen due to the fault of the post office, and what is most offensive is that the delay of such invoices necessary for the accountant to deduct is carried out by themselves company employees who forget to deliver documents to the accounting department on time. The result is that the required chronological order of recording invoices as they are accepted cannot be maintained.

The invoice is dated later than the date of service

In accordance with paragraph 3 of Article 168 of the Tax Code of the Russian Federation, invoices are issued no later than five days from the date of shipment of goods, provision of services or performance of work. The term “issuance” means the preparation of an invoice by the supplier, and the date of the invoice should not exceed five days from the date of shipment of the goods or provision of the service. For example, the shipment of goods occurred on May 25, 2006, therefore, the invoice must be dated no later than May 30, 2006. With regard to services, paragraph 3 of Article 168 of the Tax Code of the Russian Federation says the following: “when selling services, invoices are issued no later than five days, counting from the date of provision.” Thus, if a property lease agreement is concluded with monthly rental payments, then the date of provision of the service will be the last day of each month. The lessor, following the norms of tax legislation, has the right to issue an invoice on the fifth day of the next month. Please note that this procedure for preparing invoices is disadvantageous for the tenant, since he will be able to submit VAT for deduction not in the month the service is provided, but only in the next month, when the mandatory condition for submitting VAT for deduction regarding the presence of an invoice is met. To avoid such undesirable consequences for the tenant, it can be recommended that when concluding contracts, indicate what date the landlord should date the invoice and within what time frame it should be issued to the tenant.

It must be taken into account that if the seller nevertheless insists on such an option for drawing up invoices, then it is not possible to change his point of view, only rely on his consciousness, since he acts in accordance with the law. But what to do with invoices that can be drawn up on a date later than 5 days from the date of completion of work or provision of services?

The invoice was drawn up later than 5 days from the date of completion of work or provision of services

In this case, as in the previous version, the right to deduction will arise in the month of presentation of the invoice. And if the supplier is located in another city, there is a high probability that the invoice will arrive significantly late. The taxpayer will be able to submit VAT on such an invoice for deduction when it arrives at the organization. To confirm the date of receipt, you must register the invoice by stamping incoming correspondence in accordance with the rules of document flow. There are cases when tax authorities tried to challenge such a procedure for deducting VAT, but the courts do not support them in this (resolution of the Federal Antimonopoly Service of the Moscow District dated June 7, 2004 in case No. KA-A41/4545-04). The position of the tax authorities was that since the disputed invoice was dated in February, the organization had no right to claim it for deduction in March, despite the fact that the organization actually paid a large amount of tax to the budget. But the court rejected this position, citing the fact that in the absence of an invoice, “even if the taxpayer complies with other conditions (payment of VAT, capitalization) with which the law associates this right, there are no grounds for claiming VAT amounts for deduction.”

It should be noted that such cases are quite rare. If such disagreements arise, taxpayers may be advised to provide the inspectors with explanations from the financial department. For example, letter No. 03-03-11/107 of the Ministry of Finance of Russia dated June 23, 2004 provides the following explanations: “the right to deduct the paid amounts of value added tax arises for the taxpayer if the three above conditions coincide. In connection with the above, for paid information services, invoices for which were received late, the deduction of value added tax is made in the tax period in which the invoice data were actually received.”

Thus, when registering invoices in the purchase book according to the date of their actual receipt by the accounting department from the supplier, it is advisable for each fact of discrepancy between this date and the date of provision of services, shipment of goods, performance of work for more than five “permitted by law” days, to have a supporting document , for example, an envelope with a stamp indicating the date of receipt at the organization's post office. In the event that it is impossible to prove that an invoice arrived at the enterprise on a later date through no fault of the buyer, then be guided by the principle of caution, recognizing what happened as a distortion that arose in the previous tax period, and accept the requirements established by Article 54 of the Tax Code of the Russian Federation for making corrections in accounting and filing updated tax returns.

The invoice was issued earlier than the date of service

This situation may occur when the buyer has made an advance payment and asks the seller to draw up documents. If the seller meets the buyer halfway, then he provides a disservice to his client, since in this case one of the necessary conditions for the deduction is not met - the service has not yet been provided, therefore, VAT cannot be claimed for deduction in the current tax period, and only after registration. During an audit, tax authorities may notice such a discrepancy, which will cause additional penalties and sanctions.

The most interesting thing is that the buyer cannot force the seller to issue an invoice properly, and even more so cannot force him to take all measures to timely deliver the invoice to the buyer. Receiving an invoice is a headache for the buyer. These conclusions can be drawn from the current legislation.

Paragraph 3 of Article 169 of the Tax Code of the Russian Federation obliges the seller to draw up an invoice and keep logs of received and issued invoices when performing transactions recognized as an object of taxation. Moreover, as can be seen from the text, the invoice is drawn up in one copy. The Rules of Maintenance, which are approved by Government Decree, require two copies to be made. Although subparagraph 8 of paragraph 1 of Article 6 of the Tax Code of the Russian Federation states that those normative acts that change the content of the concepts defined therein or use them in a meaning different from the meaning established therein do not comply with it.

Thus, in accordance with the Tax Code of the Russian Federation, the seller can draw up an invoice and take it into account in his journal; for some reason, the Tax Code does not prescribe it, nor does it set deadlines for this. Moreover, the Tax Code does not oblige the seller to keep the invoice. Subclause 8 of clause 1 of Article 23 of the Tax Code of the Russian Federation obliges to preserve for four years documents necessary for the calculation and payment of taxes, but the invoice does not apply to those of the seller, since according to the definition of an invoice, which is given in paragraph 1 of Article 169 of the Tax Code Russian Federation, an invoice is a document that serves as the basis for deducting VAT from the buyer. Therefore, it is he who must store such documents to confirm deductions in the event of a tax audit. For the absence of invoices on which VAT was claimed for deduction, the tax authorities can only fine the buyer under Article 120 of the Tax Code of the Russian Federation for a gross violation of accounting rules.

Consequently, the seller bears no responsibility for failure to present the invoice to the buyer on time. In order to avoid difficulties in obtaining invoices in practice, the contract should include a clause on the mandatory preparation of the invoice within the period specified in the contract and sanctions for late submission by the seller, thereby making it possible to discipline the seller.

The position of the Ministry of Finance is based on the fact that invoices are the basis for accepting tax amounts for deduction when the requirements established by paragraphs 5, 5.1 and 6 of Article 169 of the Tax Code of the Russian Federation are met. Clause 5 lists the required document details, one of which is the date of the invoice. Thus, according to the Ministry of Finance, failure to complete the date of the invoice is a failure to comply with these requirements. Consequently, it leads to refusal to deduct VAT. The buyer has no choice but to write off VAT as a loss. The seller, who issued an invoice late, does not bear any responsibility for this: penalties are not specified anywhere for violating the deadline for issuing the document, and, in addition, the tax office will request an invoice from the seller only in the event of counter checks.

“When working with paper invoices, taxpayers were not afraid to act contrary to the position of the Ministry of Finance. Indeed, in the paper version, the dates of compilation and issuance do not differ, and you can always date the document with the desired date. With the advent of electronic invoices, accountants became wary. In an electronic document, the date of issue is strictly recorded by the operator, regardless of the participants in the document flow, in the technological documents that the tax office requests along with the electronic invoice, and it is impossible to change it. This means that the taxpayer will have to enter into direct confrontation with officials,” says Tamara Mokeeva, an expert in the system for exchanging electronic legally significant documents Diadoc.

Changes in the Tax Code

In fact, issuing an invoice five days late since 2010 does not have any negative consequences for the buyer in terms of loss of the right to deduction. This follows from a direct reading of the current edition of the Tax Code (clause 3 of Article 168, clause 2 of Article 169) in accordance with the changes made to clause 2 of Art. 169 of the Tax Code by federal law dated December 17, 2009 No. 318-FZ, namely: “errors in invoices and adjustment invoices that do not prevent the tax authorities from identifying the seller, buyer of goods (work, services), property rights, when conducting a tax audit, the name of goods (works, services), property rights, their value, as well as the tax rate and the amount of tax presented to the buyer, are not grounds for refusal to accept tax amounts for deduction.” The invoice date is not one of these errors.

According to the Tax Code, failure to comply with the requirements for an invoice and an adjustment invoice not provided for in paragraphs 5, 5.2 and 6 of Art. 169 of the Tax Code of the Russian Federation cannot be a basis for refusing to accept for deduction the amounts of tax presented by the seller (clause 2 of Article 169 of the Tax Code of the Russian Federation). But any discrepancies with these points can be corrected: for each case, either an adjustment or a corrected invoice can be drawn up.

Subjective opinion

“The letters from the Ministry of Finance are primarily explanatory comments, but in no way legal or by-laws. To be guided by the opinion of officials in this matter or by one’s own considerations is a personal matter for each taxpayer. Moreover, the letter of the Ministry of Finance dated 08/26/2010 No. 03−07−11/370 is outdated: it has no relation to the current edition of the Tax Code, since the text of the letter contains a direct reference to the edition of the code valid until 01/01/2010,” explains Tamara Mokeeva.

Finally, in the same letter, the Ministry of Finance itself notifies that “the opinion provided is of an informational and explanatory nature and does not prevent one from being guided by the norms of legislation on taxes and fees in an understanding that differs from the interpretation set out in this letter.”

In favor of the taxpayer

Arbitration court practice today also usually develops in favor of the taxpayer. If the tax office still sees a violation of the Tax Code regulations and denies the deduction, then the court most often thinks otherwise. For example, case No. F09-10201/07-S2 was indicative. The Federal Arbitration Court of the Ural District indicated that, according to the text of Art. 168 of the Tax Code, the rules contained therein regarding settlement and primary accounting documents apply to documents emanating from the seller. Therefore, violation by counterparties of these rules is not grounds for refusal to accept for deduction the tax paid on the basis of such invoices. In the decision of the Federal Antimonopoly Service of the Moscow District dated December 23, 2011 in case No. A40-142945/10-118-831, the court also noted that “according to Art. 169 of the Tax Code of the Russian Federation, violation of the provisions provided for in paragraph 3 of Art. 168 of the Tax Code of the Russian Federation does not provide for a five-day period as a basis for refusal to apply tax deductions.”

When resolving such tax disputes, arbitration courts are guided primarily by a direct reading of the Tax and Civil Codes. And in paragraph 3 of Art. 168 of the Tax Code of the Russian Federation only says that the seller must draw up an invoice within five days. That is, this norm regulates the actions of the seller. It doesn't mean anything else.

Azza Gysin

When working with paper invoices, taxpayers were not afraid to act contrary to the position of the Ministry of Finance. With the advent of electronic invoices, accountants became wary.

One of the biggest problems that Russian (and before that Soviet) accountants have been trying to solve for decades is the timely receipt of primary accounting documents both from employees of their organization and from partners. The tax authorities recently issued a letter clarifying this issue.

Why are documents delayed?

Each fact of economic life is subject to registration with a primary accounting document (Part 1, Article 9 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting”, hereinafter referred to as Law No. 402-FZ). Without going into details of the preparation of primary documents, we will only note that their seven mandatory details include “Date of document preparation” and “Content of the fact of economic life” (Part 2 of Article 9 of Law No. 402-FZ).

The primary accounting document must be drawn up when a fact of economic life is committed, that is, on the same day, or even hour, when the operation was completed (Part 3 of Article 9 of Law No. 402-FZ). In some situations, for example when transferring material assets, this is possible. The seller handed over the goods to the buyer, and he immediately signed a pre-executed document, which was missing only his signature and date. In this case, the date of drawing up the document and the actual date of the transaction will coincide.

But when this document gets into the accounting departments of the seller and the buyer, this is already a matter of executive discipline. In theory, he should be there the same day. In practice, it is considered a good result when primary accounting documents are received by the accounting department within a week or two after the end of the reporting month. Well, readers themselves can tell a lot about duration records.

In some other cases, the signing of a primary document requires checks, approvals, decisions, and the document will be signed much later than the fact of economic life took place. An example of this could be performing work, providing a number of services, etc.

In particular, when formalizing the transfer of the result of construction and installation work, the customer and the contractor still use (which, in our opinion, is quite justified) an act of acceptance of work performed (form No. KS-2) and a certificate of the cost of work performed and expenses (form No. KS-3), the forms of which were approved by Decree of the State Statistics Committee of Russia dated November 11, 1999 No. 100.

In the act in form No. KS-2, in the header of the document there are indicators “Date of compilation” and “Reporting period”. And it is quite possible that a document was drawn up after the end of the reporting period (for example, the reporting period is October, and the document was drawn up in early November). Exactly the same situation will happen with the certificate in form No. KS-3. The reporting period and the date of compilation will not necessarily coincide. Moreover, they can be signed by the customer much later, as well as transferred to the accounting departments of the customer and the contractor.

A similar situation arises when providing some services. Acts on services actually rendered may not be signed on the same day (or, if the services are long, on the last day of the reporting period), but significantly later. Although the act itself, signed in December, will indicate that these services were provided during the period, say, from October 15 to November 30 of the current year.

Expenses in one period, documents in another

For many years, accountants have been deciding for themselves whether they have the right to include as expenses work (or services) performed in one reporting period if the primary document was drawn up in the next. That is, what is more important: the date of drawing up the primary document or the period of implementation of the fact of economic life?

We are of the opinion that the date of implementation of the fact of economic life (indicated in the document) prevails over the date of drawing up the document. Although neither from the text of Law No. 402-FZ, nor from the text of the previously in force Federal Law of November 21, 1996 No. 129-FZ “On Accounting” such an unambiguous conclusion can be drawn.

However, this position was supported by the Federal Tax Service of Russia. In the letter dated 07/02/2015 No. GD-4-3/11546@ “On recognizing the date of expenses for the purposes of taxing the profits of organizations,” the tax department quite logically comes to the conclusion that expenses are recognized in the reporting (tax) period in which they arise based on the terms of the transaction.

Further, the letter states that in case of long-term or repeated performance of work (provision of services), the customer has the right to recognize them as expenses of the reporting (tax) period in which they were actually performed (rendered). The fact that the primary document was drawn up in the next reporting (tax) period does not contradict the current tax legislation.

Thus, when recording a transaction (a fact of economic life), you should first take into account the actual date of its completion, and secondly, the date of the primary document that confirms this fact. The same principle, in our opinion, can, or rather, should be applied in accounting.

This immediately removes the problem of what to do with December bills for the Internet, utilities, rent, etc., which arrived in mid-January and are dated January. We calmly include payment for them as expenses for December.

But what to do when the act or invoice for last year arrives not only in January - early February, but also in March-April, or even in May? Any accountant can tell many stories about how gentlemen managers keep documents for months, naively not realizing that they urgently need to be handed over to the accounting department or presented to a counterparty.

But here, in our opinion, you should use the same algorithm that requires the Ministry of Finance of Russia to use when correcting errors identified before the date of signing the statements (clause 6 of the Accounting Regulations “Correcting Errors in Accounting and Reporting” (PBU 22/2010) , approved by order of the Ministry of Finance of Russia dated June 28, 2010 No. 63n, hereinafter referred to as PBU 22/2010).

That is, documents received before the actual submission of the income tax return and financial statements are reflected as December expenses. Moreover, both in accounting registers and for profit tax purposes.

If the documents arrived after the declaration and financial statements were submitted, then we have the right to reflect them in the current year, but not in correspondence with expense accounts, but as other (non-operating in tax accounting) expenses, that is, in correspondence with the account 91.

However, the organization is not required to submit an updated declaration.

In case of late receipt of a document for last year, one can debate for a long time how to interpret this situation. For example, recognize it as information that was not available to the organization at the time of reflection (non-reflection) of such facts of economic activity. That is, it will not be an error, but expenses of previous years identified in the reporting year (clause 3 of PBU 22/2010). Then, in the analytics for account 91 (subaccount “Other expenses”), we reflect these amounts precisely as “Expenditures of previous years identified in the reporting year.”

In the income tax return for the first quarter (or even half a year, depending on how late the document arrived), this amount must be reflected in line 301 “Losses of previous tax periods identified in the current reporting (tax) period” of Appendix No. 2 to sheet 02. Accordingly, it will be included in line 030 “Non-operating expenses” of sheet 02. This is if the document arrived late through no fault of the employees of their own organization.

If the mistake of your own employees is visible to the naked eye (they forgot to contact you in time; they took it on time, but lost it, and only now found it; they didn’t know that it had to be sent to the accounting department, etc.), then there will be dishonest actions of officials (p 3 PBU 22/2010), that is error .

It is unlikely that it will be recognized as significant, so no retrospective restatement of the financial statements will be required.

The same account 91 (sub-account “Other expenses”) will be used in the accounting registers, but in the analytics for it, apparently, it will be necessary to indicate “Correction of errors of previous years.”

In the income tax return from 2015, precisely to correct such errors of previous years (expenses not accepted in a timely manner), line 400 was introduced in Appendix No. 2 to sheet 02 “Adjustment of the tax base for identified errors (distortions) related to previous tax periods that led to to excessive payment of tax”, broken down for the three previous years (on lines 401, 402, 403).

Value added tax presented by counterparties is accepted for deduction in the manner established by clause 1.1 of Art. 172 of the Tax Code of the Russian Federation. But it is necessary to take into account the period of receipt of transfer documents and invoices.

Let’s say that an act for services from last year, but dated January, as well as an invoice, were received by the organization before the deadline established for submitting the VAT return for the fourth quarter (that is, before January 25).

Organization has the right (but not the obligation) reflect this invoice in the purchase book for the fourth quarter of the past year and accept it for deduction in the same period (paragraph 2, clause 1.1, article 172 of the Tax Code of the Russian Federation).

If the documents arrived later, the right to choose also remains. You can accept this VAT for deduction in the first quarter of the current year (or later, within three years) or submit an updated declaration for the fourth quarter.

And please note that expenses can be taken into account and recognized as expenses before the value added tax charged on them is accepted for deduction.

The opposite situation, in which VAT is deducted earlier than costs, is directly prohibited by current legislation (clause 1 of Article 172 of the Tax Code of the Russian Federation).

To complete the work, the contractor is given a certain period of time, which is fixed in the contract and is an important condition of the transaction.

In case of violation of this deadline, the customer has the right to demand certain compensation for this - a penalty (penalty).

It is worth finding out in more detail in what cases this right arises and what the customer needs to do to receive this compensation.

In accordance with Art. 27 Federal Law “On the Protection of Consumer Rights” (hereinafter referred to as the Law), the contractor must complete the work on time:

• established by the rules for the implementation of its individual types;
• defined in the contract (can be either more or less than the first).

In Art. 28 of the Law defines the rights that the customer receives in case of violation of the established duration of work:

• appointment of a new term;
• entrusting work to third parties and reimbursement of expenses for this at the expense of the contractor;
• reduction in payment;
• reimbursement of money paid for work;
• withdrawal from the contract.

If you have extended the deadline for completing the work, then the penalty is collected only if the repeated deadline is violated

Along with the exercise of any of these rights, the consumer can also demand that the guilty party pay a penalty for late payment. However, in the event of an extension of the contract, it will be possible to receive a penalty only in the event of a repeated violation of the terms by the counterparty.

The customer also has the right to a penalty if he turns to the contractor for the exercise of one of these rights, and the latter violates the deadline established for this.

Its duration is 10 days, so after its completion the consumer has the right to receive compensation for each subsequent day.

Amount and terms of payment of the penalty

To correctly calculate the amount of the penalty, you need to determine several points:

• in what units of time is the period calculated - in days or hours;
• from what moment does this period begin (from the moment the contract is signed, after the object is transferred to the contractor, from a certain calendar date, etc.);
• at what point the work was finally completed;
• how much is the cost of completing the work (in the absence of this indicator, the cost of the entire order is taken into account in the calculations).

After determining these indicators, the total number of days of delay is calculated.

It is worth considering that the calculation takes place not in working days, but in calendar days, that is, all weekends and holidays are also subject to payment by the guilty party.

As for the amount of the penalty, its minimum amount is 3% of the cost of the work (order price) and is charged:

• for each day (if the period is defined in such a time unit);
• for every hour of delay.

However, the parties can establish a larger amount of the penalty by fixing this value in the contract. But it is worth considering that clause 5 of Art. 28 of the Law also establishes the maximum amount of compensation - it should not exceed the cost of performing the work or the total price of the order, if the first value is not specified in the contract.

The minimum amount of the penalty is 3%, and the maximum should not exceed the amount of work performed

If the document indicates a penalty in a smaller amount, a minimum of 3% will still be required to be paid.

In addition to the amount of the penalty, the timing of its payment is no less important. It is not defined by law, so in this case you need to turn to civil law.

For example, in accordance with Art. 314, if the deadline for fulfilling obligations is not established in the contract or legislative acts, it is 7 days from the date of presentation of the requirements to the contractor. If this deadline is violated, the customer has the right to go to court.

Algorithm for collecting penalties

If the contractor violates the established deadlines, the customer must perform the following sequence of actions:

1. Contacting the contractor with a written complaint. It lists the requirements:
   • provided for in Art. 28 of the Law (one to choose from);
   • on payment of a penalty (its amount is also indicated).

   The contractor is given 10 days to consider this claim and fulfill the requirements specified in it. After their completion, the penalty begins to accrue again, and the customer receives the right to go to court or Rospotrebnadzor.

2. Filing a complaint with Rospotrebnadzor. This body will consider the appeal and, within the prescribed period, will check the work of the contractor.
3. Filing a claim in court. A claim may be filed in a court located at:
   • residence of either party;
   • performance of work or provision of services;
   • location of the company or individual entrepreneur who is the performer under the contract for the performance of work.

Along with the claim, documents must be submitted confirming the guilt of the second party: a contract for the provision of services, a second copy of the written claim (or a receipt for its sending by mail), etc.

If a positive court decision is made, the contractor will have to reimburse the customer for all expenses and also pay a penalty.

Receiving a penalty for late completion of work is the legal right of every customer. He receives this opportunity if the contractor does not deliver the completed work within the deadline established by the contract or specific rules for its implementation.

In this case, the minimum amount of delay is 3% of the cost of the work or the price of the order and is accrued in this amount daily (hourly), and the maximum is 100%. If the performer refuses to pay, this compensation can be obtained in court.

LLC on OSNO. The seller of goods does not provide the buyer with invoices (adjustment invoices) or submits them untimely, or provides invoices (adjustment invoices) that do not comply with the requirements of the law (Article 169 of the Tax Code of the Russian Federation). What risks does the buyer face? What liability can the seller be held liable in this case?

As a general rule, the buyer has the right to deduct VAT only on the basis of a correctly drawn up invoice. Consequently, if the supplier has not provided the buyer with an invoice, then the buyer cannot take advantage of the VAT deduction for this supply. Also, the buyer does not have the right to accept VAT as a deduction on an invoice issued in violation of the deadlines (later than 5 days from the date of provision of the service). Otherwise (if VAT is accepted for deduction on an invoice submitted late), the buyer will have to defend his position in court. If the seller does not issue invoices, he faces a fine of 10,000 rubles. If such a violation is discovered over several tax periods, the fine will increase to RUB 30,000. If failure to issue invoices led to an understatement of the VAT tax base, then the fine will be 20 percent of the amount of unpaid tax, but not less than 40,000 rubles. At the same time, untimely issuance of invoices by the seller can also be equated to non-issuance of invoices.

Rationale

Is it possible to deduct VAT if the seller issued an invoice late, that is, later than five days from the date of shipment? The contract does not provide for prepayment

No you can not.

The invoice must be issued within five calendar days from the date of shipment of goods, performance of work, provision of services. This is the requirement of Article 168 of the Tax Code of the Russian Federation. If an invoice is issued later than this period, it will not comply with the established requirements for the date of its issuance. This means that you cannot exercise the right to apply a deduction for it. This procedure follows from the provisions of paragraph 2 and subparagraph 1 of paragraph 5 of Article 169 of the Tax Code of the Russian Federation. A similar position is stated in letters of the Ministry of Finance of Russia dated August 26, 2010 No. 03-07-11/370, dated June 30, 2008 No. 03-07-08/159.

The chief accountant advises: you can apply a tax deduction for invoices issued late. This will most likely cause disputes with tax inspectors. However, there are arguments that will help you defend your right in court. They are as follows.

Tax legislation does not establish a relationship between the right to deduct VAT and compliance with the deadlines for issuing invoices. Therefore, tax deductions for invoices issued late are legal. The buyer or customer can use this right when receiving an invoice and fulfilling other necessary conditions for the deduction (clause 1 of Article 169, Tax Code of the Russian Federation).

Arbitration courts share this point of view. For example, in the definitions of the Supreme Arbitration Court of the Russian Federation dated December 17, 2009 No. VAS-16581/09, dated September 25, 2009 No. VAS-11696/09, dated February 24, 2009 No. VAS-1782/09, dated June 3, 2008 No. 6314/08, resolutions of the Federal Antimonopoly Service of the North Caucasus District dated August 24, 2009, No. A53-19676/2008-C5-23, Volga District dated August 18, 2009, No. A55-15142/2008, dated May 19, 2009. No. A55-12068/2008, dated February 19, 2009 No. A65-6288/2008, dated September 18, 2008 No. A06-618/08, East Siberian District dated October 28, 2008 No. A19-13680/07- 24-F02-5268/08, West Siberian District dated September 15, 2008 No. F04-4718/2008(11569-A45-26), dated January 23, 2008 No. F04-457/2008(1067-A46-14 ), Moscow District dated February 10, 2009 No. KA-A40/12874-08, dated October 31, 2008 No. KA-A40/10352-08, dated September 4, 2008 No. KA-A41/8100-08.

What liability does an organization face if it issues an invoice not after five calendar days, but later?

Tax legislation does not provide for liability for failure to comply with deadlines for issuing invoices (letter of the Ministry of Finance of Russia dated February 17, 2009 No. 03-07-11/41). An organization can be fined only for the absence of invoices ().

However, if the deadlines are violated at the junction of tax periods, then inspectors will still be able to fine the organization. For example, if an invoice should have been issued at the end of the current tax period, and the organization issued it at the beginning of the next one. During an inspection, inspectors may interpret such a violation as a lack of invoices. For this, the organization faces a fine of 10,000 rubles. If a violation is discovered over several tax periods, the fine will increase to RUB 30,000. If failure to issue invoices led to an understatement of the VAT tax base, then the fine will be 20 percent of the amount of unpaid tax, but not less than 40,000 rubles. Such penalties are established by the Tax Code of the Russian Federation.

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