From January 1, 2015, transactions for the sale of property and (or) property rights of debtors recognized in accordance with the law Russian Federation insolvent (bankrupt) will not be recognized as objects of taxation by value added tax; the relevant amendments were made to the Tax Code of the Russian Federation by Federal Law No. 366-FZ dated November 24, 2014.

Actually, why suddenly about taxes.

This decision is the next stage in an attempt to resolve the conflict between the interests of the budget (understood formally) and the interests of secured and bankruptcy creditors.

Briefly, the relevant stages can be traced by changing Art. 161 of the Tax Code of the Russian Federation in a historical perspective, as well as by the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 21, 2011 No. 439/11, as well as by the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of January 25, 2013 No. 11.

The final decision of the Supreme Arbitration Court of the Russian Federation before the change in the Tax Code of the Russian Federation was the following (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated January 25, 2013 No. 11): VAT from the sale of the debtor's property is taken into account in the corresponding tax period and is paid at the end of it as the current payment of the fourth priority; the buyer does not withhold the amount of VAT. In the event that the collateral was sold, then 80 (or 70) percent of all proceeds with VAT are considered to the secured creditor (i.e. from 118, and not from 100) (Article 138 of the Bankruptcy Law).

Now here's a new twist: there will be no VAT at all.

From a tactical point of view, this is, of course, a boon for bankruptcy creditors. True, I would venture to suggest that the final prices for the acquisition of debtors' property will decrease by about the same 18 percent; after all, earlier the buyer of the relevant property set the specified 18 percent for himself as a deduction (i.e., together with the property, a kind of “ accounts receivable"). In other words, in the strategic plan for bankruptcy creditors, nothing may change: the mass will receive as much as it could have received before (without the position of the Supreme Arbitration Court of the Russian Federation in Resolution No. 11).

Moreover, taking into account the position in the aforementioned resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation, the interests of secured creditors may now even suffer: after all, they previously received their part from the amount of proceeds with VAT, i.e. from 118. Now, if buyers pay 100 (a different amount, but less due to the absence of “input” VAT), then the secured creditor will receive 80 (70). If earlier the problem of VAT on the sale of the subject of pledge was actually “shifted” to unsecured bankruptcy creditors (after all, 18 had to be paid as current after the end of the tax period, including from the funds of the bankruptcy estate, which is not the subject of pledge), now this will not happen.

Considering all of the above, we can draw the following conclusion: in itself, the change in the wording of the Tax Code of the Russian Federation neither improves nor worsens the position of ordinary bankruptcy creditors; but such a change, taking into account the interpretation of the previous wording of paragraph 4.1 of Art. 161 of the Tax Code of the Russian Federation in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 11 worsens the position of secured creditors and equalizes (improves) the position of ordinary bankruptcy creditors.

What to do with VAT and income tax if an organization declared bankrupt sold property during bankruptcy proceedings?

VAT - to pay or not?

Until November 24, 2014, in the previous version of the Tax Code of the Russian Federation, clause 4.1 of Article 161 provided for the obligation of a bankrupt debtor to calculate and pay VAT on the sale of property and (or) property rights.

At present, pursuant to sub. 15 p. 2 art. 146 of the Tax Code of the Russian Federation are not recognized as an object for the purposes of VAT taxation of operations for the sale of property and (or) property rights of debtors recognized in accordance with the legislation of the Russian Federation as insolvent (bankrupt). According to paragraph 3 of Article 38 of the Code, any property sold or intended for sale is recognized as a commodity for tax purposes.

Thus, if the debtor organization is declared bankrupt, the income from the sale of its property is not subject to VAT.

This position was clarified by the Ministry of Finance (letter of September 30, 2015 N 03-07-14 / 55736), the Federal Tax Service (letter of August 17, 2016 N SD-4-3 / [email protected]) and is confirmed by judicial practice.

income tax

Chapter 25 of the Tax Code "Income Tax" does not contain special requirements for the calculation and payment of income tax when selling the property of an organization declared bankrupt.

For corporate income tax, the tax period is a calendar year. Reporting period- quarter, half year, 9 months.

Repayment of creditor claims in this case is not an expense, since accounting policy is based on the movement of goods, not on the movement of money.

The Federal Law "On Bankruptcy" establishes certain consequences and the order of satisfaction of creditors' claims in the framework of bankruptcy proceedings. In particular, the claims of creditors for current payments are paid out of turn at the expense of the bankruptcy estate, mainly to creditors whose claims arose before the application for declaring the debtor bankrupt was accepted.

For other current payments, claims are satisfied in the fifth order. This also applies to mandatory payments that arose after the date of acceptance of the application for declaring the debtor bankrupt. When resolving the issue of qualifying debt on mandatory payments as current or register, one should proceed from the end of the tax (reporting) period, as a result of which the debt was formed ("Review of judicial practice, approved by the Presidium of the Supreme Court of the Russian Federation on December 20, 2016).

By virtue of paragraph 1 of Art. 38, paragraph 1 of Art. 44 of the Tax Code of the Russian Federation, the obligation to calculate and pay tax arises for the taxpayer if he has an object of taxation and tax base. This means that the occurrence of the obligation to pay tax is determined by the presence of the object of taxation and the tax base, and not by the onset of the last day of the period during which the tax must be calculated and paid.

The end of the tax period after the court accepts an application for declaring the debtor bankrupt entails the qualification of the claim for payment of tax calculated at the end of the tax period as a current one. Thus, in this case, the tax authority has the right to satisfy its claims in the current payment regime.

If the tax authority presented a claim for the payment of income tax from the sale of property of a bankrupt organization in the process of bankruptcy proceedings, it must be satisfied in accordance with Article 134 of the Federal Law "On Bankruptcy" - out of turn at the expense of the bankruptcy estate.

The claim cannot arise earlier than the deadline established for the payment of tax (Article 69 of the Tax Code of the Russian Federation). But what if the organization received income from the sale of property, and the arbitration court terminated bankruptcy proceedings and liquidated the organization before the expiration of the period when the tax authority had the right to file a claim for payment of income tax?

The Federal Tax Service believes that upon completion of bankruptcy proceedings before the expiration of the tax period, the bankruptcy trustee of the debtor, knowing in advance that in connection with the sale of property an obligation to pay tax arose, is obliged, in accordance with paragraph 4 of Article 55 of the Tax Code of the Russian Federation, to apply in advance to the tax authority with application to change the tax period. He must calculate and pay tax amounts for the time from the day the tax period begins to the day the liquidation is completed, while acting to the detriment of the interests of other creditors.

In fact, this position was supported by the Supreme Court of the Russian Federation (determination of the Supreme Court of the Russian Federation of May 12, 2017 N 305-ES17-1599), the case on the claim of the Federal Tax Service was sent for a new consideration, the first hearing in the Moscow Arbitration Court was scheduled for August 31, 2017.

Thus, if an organization declared bankrupt by an arbitration court sold property in the course of bankruptcy proceedings:

• income received is not subject to VAT;
• income tax must be paid out of turn at the expense of the bankruptcy estate, and an attempt to complete bankruptcy proceedings before the end of the tax period, without paying income tax, seems quite risky.

Accordingly, the system of payment of mandatory payments in various bankruptcy procedures is also changing. Therefore, the question of the order and sequence of their payment does not lose its relevance. Article 2 federal law dated October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)” (hereinafter referred to as the Bankruptcy Law): mandatory payments are taxes, fees and other mandatory contributions paid to the budget of the corresponding level budget system of the Russian Federation and (or) state off-budget funds in the manner and on the terms determined by the legislation of the Russian Federation, including fines, penalties and other sanctions for non-fulfillment or improper fulfillment of the obligation to pay taxes, fees and other assessed contributions to the budget of the corresponding level of the budgetary system of the Russian Federation and (or) state off-budget funds, as well as administrative fines and fines established by criminal law. Currently, in Russia, the vast majority of bankruptcy cases are considered in accordance with the new version of the Bankruptcy Law (as amended by Federal Law No.

The Supreme Arbitration Court of the Russian Federation streamlined the queue of current payments in bankruptcy cases

But practice shows that the more money is directed to repay current payments, the less registered creditors will get. Therefore, in bankruptcy proceedings, it is important to ensure that current payments are used only for their intended purpose, and not for the illegal enrichment of certain persons. When sending a request for a current payment, it is worth indicating the date of the obligation. The leitmotif of Resolution No. 36 is the observance of the order of current payments and the distribution of responsibility for its violation.

Debt on taxes in case of bankruptcy of the debtor

There are also interest and penalties for personal income tax. Will the debt on taxes, penalties and fines be considered current or should it be included in the register of creditors' claims, as it arose before the application was filed with the arbitration court? For the purpose of applying bankruptcy law, taxes, fines, and penalties are recognized as obligatory payments that relate to current payments, provided that they arose after the date of acceptance of the application for declaring the debtor bankrupt (Art.

The company is initially periodically and then consistently unable to meet creditor claims, including mandatory payments. Market economy for centuries it has been developing a system of diagnostics, control and certain protection of companies from collapse (the bankruptcy system). Such an inevitable, in fact, economic procedure, reflecting the state of the national state economy of the country, is the most urgent problem for different states.

Legal assistance in the field of taxation

In this regard, the tax legislation of Russia is quite complex. Instability, inconsistency, the presence of numerous gaps, ambiguities and uncertainties in the legislation on taxes and fees, sometimes different legal positions of tax (financial) and judiciary on controversial issues of taxation, unfortunately, no one is surprised. Turning to a lawyer, a specialist in the field of tax legislation, will allow you to avoid many difficulties and problems in the formation of your tax obligations, both for organizations in the process of doing business, and for citizens, and in case of disagreement with tax authorities regarding the fulfillment of the tax obligation, the participation of a lawyer in tax process will provide competent protection of the rights and legitimate interests of the taxpayer in a tax dispute in a court of general jurisdiction or in an arbitration court. Tax disputes often arise due to different interpretations by taxpayers and tax authorities of the current norms of tax legislation.

Order of payments in bankruptcy

If the applicant did not have time to submit an application in time, his requirements may not be satisfied. Concepts The formation of a system of control and protection of organizations from financial collapse began in 1992 by decree of the President of Russia. Currently valid normative act is Federal Law No. 127 of October 26, 2002. This law determines the procedure for conducting the bankruptcy procedure and the order of payment of debts to creditors. Usually, the bankruptcy process is initiated by creditors after unsuccessful attempts by the organization to repay the debt. If a company has large debts and is not able to cope with them on its own, then bankruptcy for them acts as a kind of protective reaction.

The insolvency process is handled by the arbitration manager.

The payment of VAT in case of bankruptcy of an enterprise caused controversy for many years. The new rules for VAT in bankruptcy since 2019 are still unknown to many, so it is important to figure out who and in what cases should pay VAT?

Previously, when selling the property of a bankrupt company tax agents the bodies involved in the sale were recognized, then the buyers of the property. Let's figure out what is the situation with VAT in case of bankruptcy today.

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constantly occurring in judicial practice questions and disputes regarding value added tax when selling the bankrupt's property led to the urgent need to clearly define the procedure for paying VAT. Higher Court of Arbitration Russia has established special rules for the distribution of property of a bankrupt company.

Today, value added tax on the sale of property of the debtor company is paid by the debtor itself and refers to. The amount received from is transferred in full to the creditor company, excluding value added taxes, and the tax itself is included in the company's debts.

A bankrupt enterprise will have to pay VAT after the claims of all creditors are satisfied. The buyer at the same time transfers the full cost to the debtor company or, if an auction is held, to their organizer.

VAT payers can also be included. When conducting individual loses the status of an entrepreneur before the start and start, that is, he cannot pay VAT. For this reason, the sale of the property of a bankrupt individual entrepreneur is not subject to value added tax.

In some cases, the organization may not pay VAT. For example, if implemented securities or land. These categories of property of a bankrupt organization are not subject to value added tax.

Payment order

The fundamental provision regarding the payment of VAT is the fact that if a bankrupt is not a VAT payer, then the tax is simply not charged on this property, and does not pass to any other legal entities. The same applies to organizations that sell types of property that are not subject to VAT under the law, or those that have special mode taxation.

Organizations conducting the competitive sale of the bankrupt’s property, organizing auctions, as well as buyers, do not become tax agents in this situation.

If the organization must pay VAT, then they start paying it after all credit debts closed. The property remaining with the organization is sold in the same way as used to pay off debts, and the funds received are transferred to pay VAT, including for this transaction.

The priority for paying debts in the liquidation of a bankrupt enterprise provides for priority payments and secondary obligations, as well as payments that are made out of turn

Priority payments include the claims of creditors, to whom the company is liable in the framework of damage to life and health.

Since they are most often not found, payments occur in the following sequence:

However, all these methods can be used only if the amount of proceeds from the sale of property does not exceed 60 million, and in the second case 2 million rubles.

No payments

The Law "On Value Added Tax" establishes four mandatory components for calculating VAT:

• object of taxation;
• tax base;
• subject of taxation;
• bid.

The absence of at least one of these factors is considered a circumstance for non-calculation of VAT. When selling the property of a bankrupt company, there is a rate, base and object of taxation. Therefore, the absence of a subject of taxation may be a circumstance for canceling payments.

If we analyze legislative framework, it can be concluded that the face economic activity which is closed is not subject to taxation. Therefore, if entity already declared bankrupt, it is not required to pay VAT.

But does this statement apply to cases where the bankruptcy process has not yet been closed? Indeed, in some cases, after the bankruptcy process, the restoration of economic activity is also carried out.

The answer to this question can be found in the law "On Entrepreneurship". According to its wording, the legal entity in respect of which the procedure is open is not a subject of entrepreneurial activity.

Let's ask ourselves a difficult question: is the debtor at the stage of bankruptcy proceedings a taxpayer? The formal answer will be positive, since the special part of the Tax Code does not contain rules that would exclude organizations declared bankrupt from the number of taxpayers. And the Bankruptcy Law itself, operating with such a category as current mandatory payments (payments, the obligation to pay which arises after the initiation of a bankruptcy case and are satisfied before settling with registered creditors), does not exclude from them the requirement to pay taxes calculated for the periods of bankruptcy production.

Is it correct?

The absence of these rules means that a debtor who is unable to pay off creditors continues to be recognized as a subject economic activity capable of generating income that is a source for paying tax. Although it is obvious that this is not the case.

In bankruptcy proceedings, in most cases, debtors entrepreneurial activity not conducted. We are already dealing not with the subject of economic activity, but with the bankruptcy estate, with the debtor's property and with the clerk of this property - the bankruptcy trustee, whose task is to take measures aimed at forming a mass by identifying the debtor's assets, challenging transactions, bringing the persons controlling the debtor to subsidiary liability, and selling assets at the highest possible price.

Taxation of the debtor's property in bankruptcy proceedings with property taxes (property tax, land tax), accounting for transactions on the sale of property for the calculation of income tax, as well as for determining the amount of VAT to be restored and paid to the budget, if earlier, when acquiring the relevant assets, the VAT paid to the seller was declared by the debtor as tax deduction, means the taxation of the bankruptcy estate, its reduction by the amount of current tax liabilities contrary to the interests of bankruptcy creditors.

income tax will arise because the property can be sold at a price higher than the residual value on the balance sheet and taxable income will be generated. Of course, given income will be reduced by the current loss from the realization of the rights of claims to debtors, other property (if the price of its sale turned out to be lower than the residual), by the loss formed when writing off debts that are not real for collection, etc. At the same time, situations may be different, and despite these provisions, the final financial results may turn out to be positive. Of course, it is necessary to make one more reservation that the current income generated in the period of bankruptcy proceedings can be repaid for the losses of previous years. But such repayment is possible with documentary evidence of financial and economic transactions for the period of loss formation (which is often difficult to do in bankruptcy proceedings due to improper fulfillment of the obligation to transfer documents accounting insolvency practitioner) and such repayment may not lead to a decrease in income tax by more than 50 percent. As a result, a positive financial result from the sale of the debtor's property in bankruptcy proceedings is subject to income tax. Is it correct? I don't think.

The taxation of the bankruptcy estate means, in our opinion, a violation of such basic principles of taxation, enshrined in Article 3 of the Tax Code, as the economic feasibility of taxation and the actual ability of the taxpayer to pay.

We see the implementation of these principles in the provisions of Article 217 of the Tax Code for bankrupt citizens, for whom income from the sale of property is not recognized as taxable. For organizations, the Tax Code does not provide for a similar solution.