For several years, our service provider issued us invoices with errors in the details, namely, the legal address and checkpoint were indicated incorrectly. I sent a letter to the supplier with a request to make corrections to invoices for a certain period. We were refused. Does the supplier have any liability for refusing our request to correct invoices?
No, the law does not provide for such liability for the supplier. The most effective way to force a supplier to provide properly executed documents on time is to link its obligation to provide them with the buyer’s obligation to pay for services. Such a condition can be fixed in an additional agreement to the current service agreement.
The rationale for this position is given below in the materials of the Glavbukh System
1. Article: How to organize your work in order to receive documents from contractors on time and not recalculate taxes
Ekaterina Savina, expert at Glavbukh magazine
Tip one: write in the contract how you will exchange documents with the counterparty
Suppose you have a counterparty with whom you have been working for a long time, but you often receive documents from them late. Another situation: you are just about to enter into a long-term contract with a partner and assume that you will have to frequently exchange papers with him.
In such cases, we recommend establishing special conditions either in a new contract or in an additional agreement to the existing one. Namely, write down in what ways you and your partner will exchange papers, at whose expense the transfer will take place.*
Let's say the counterparty is in the same city as you. Then establish that the partner will have to deliver the documents by courier, and indicate within what time frame. Or perhaps you will send your representative for the papers. In this case, also do not forget about the deadlines.
What if the partner is in another city? Write down in the contract a condition that the parties will exchange documents by express mail. And since its services are more expensive than regular mail, specify in the agreement at whose expense the documents will be sent.
Of course, this is only possible if the counterparty agrees to include such a condition in the contract. That is, when both parties to the contract want to restore order in the document flow.
Another piece of advice for when you exchange a large number of documents with a counterparty. It would be useful to stipulate in the contract that at the end of the month the parties send each other a list of documents received for signature and sent.*
This way you can control which documents you have not yet received from your partner. We have provided a sample agreement with a clause on the exchange of documents below.
Tip three: send a letter to the director of the counterparty requesting original documents
A conversation with the counterparty's accounting department does not always yield results. If there are still no documents, then it makes sense to write a letter addressed to the director of the partner (we have provided a sample below).
In the letter, demand that documents be provided as soon as possible. And explain to the counterparty what your company is risking due to the fact that he delays the documents.
Such a letter will also help if you reflected transactions based on scanned copies, and tax inspectors came to check you. Only here you should hurry up and, if possible, send the letter immediately electronically or by fax.
To quickly receive original documents from your counterparty, ask the director of your company for help. A letter on his behalf or a phone call can speed up the receipt of the necessary initial form and invoices.
But before sending the director to the partners, conduct a briefing. Explain to your boss why the originals are needed and what tax risks your company will face without the counterparty’s documents.
It happens when you can’t wait for documents from the seller, it’s easier to fill out the initial form and invoices yourself instead. And then just give him the documents to sign.
Important detail
In exceptional cases, you can fill out the document for the supplier and give it to him to sign.*
Yes, the buyer is not prohibited from filling out the primary form. Therefore, you can safely do this for the supplier (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ). Yes, you can also issue an invoice. Just fill in the details of the seller and the shipper where necessary.
It is clear that you should use this advice only in extreme cases. And even then when we are talking about two or three documents, and not about a large volume of papers. Naturally, you won’t be able to regularly fill out primary documents and invoices instead of your counterparty.
The main thing to remember
1 It is better to immediately write down in the contract with the counterparty the terms on how and within what time frame you will exchange documents with him.
2 Recognizing expenses based only on scanned copies of the primary document is dangerous. In any case, request original documents from suppliers.
2. Article: Supplier disciplined by payment clause
Alexandra Biryukova, partner, head of tax practice, legal company Pen&Paper
“A supply agreement has been concluded. I would like to oblige the counterparty to provide properly executed documents for the goods (waybill, invoice) on time, i.e. Include a clause in the contract that provides for the supplier's liability. What’s the best way to write this?..”
Anna Petrova, Saint Petersburg
Anna, the fact is that the supplier is obliged to provide properly executed documents by virtue of regulations and without additional instructions in the contract.
Thus, an invoice must be provided no later than five days from the date of shipment of the goods (Clause 3 of Article 168 of the Tax Code of the Russian Federation). The delivery note is a supporting document confirming the transfer of ownership of the goods, and is the basis for its write-off from the supplier and registration by the buyer. Late delivery of invoices and delivery notes or their improper execution may result in adverse civil and tax consequences for both the buyer and the supplier.
Note that you can provide in the contract for the supplier’s liability for failure to provide (untimely provision) of documents in the form of a penalty, for example, with the following clause: “The supplier is obliged to provide the buyer with a properly executed invoice and delivery note on the day the goods are transferred. If the specified period is violated, a penalty is charged in the amount of one percent of the cost of the goods for each day of delay.”
But a more effective way to force the supplier to provide documents on time is to link his obligation to provide them with the buyer’s obligation to pay for the goods. For example: “The buyer pays the remaining cost within three days from the moment the supplier transfers the goods and duly executed documents for the goods (invoice, delivery note).” Thus, until the supplier provides the accompanying documents, you have the right not to pay for the delivered goods.*
Sincerely,
Maria Machaikina, expert of the BSS "System Glavbukh".
Answer approved by Alexander Rodionov,
Deputy Head of the BSS Hotline "System Glavbukh".
At first glance, resolving the problem is not difficult. To do this, it is enough to include in the contract with the supplier (or contractor) a condition according to which the latter is obliged to issue an invoice issued in accordance with the requirements established by law. And for failure to comply with the instructions in the same contract, sanctions should be provided, for example, the accrual of penalties, the amount of which will be equal to the amount of the “lost” VAT.
It is really easy to set such conditions. But will they “work” if, due to the partner’s violations, the tax authorities actually deny the company a VAT credit? Alas, there is no clear answer to this question. The problem is that the obligation to expose and the recovery of damages are, so to speak, in different “legal fields”. The first concept is from the field of public law relations, i.e. those in which one of the parties is the state, and the second is from the field of private law. Therefore, by stipulating the above condition in the contract, business partners, i.e. subjects of private law, try to regulate public law relations. It is from this “place” that disagreements between lawyers, tax authorities and judges begin.
note
If the supplier does not issue an invoice, but the taxpayer still has time to claim a refund, the latter has the right to file a claim with the arbitration court and oblige the business partner to do this as soon as possible. The Supreme Arbitration Court announced this back in 2004 (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 30, 2004 No. 101/04). However, it should be remembered that such a dispute will be resolved positively only if the corresponding obligation of the counterparty was enshrined in the contract.
Some experts believe that the amount of VAT transferred to the budget cannot be considered a “civil” loss. Because a subject of private law cannot require the counterparty to comply with the rules of another area of law. Accordingly, there cannot be “civil compensation” on the basis of Article 15 of the Civil Code of the Russian Federation. For example, in one of the decisions, the arbitration judges directly stated that such “...the plaintiff’s demand arises from tax legal relations, since the issues of applying tax deductions are the subject of tax law and are not regulated by civil law...” (resolution of the Federal Antimonopoly Service of the Ural District dated April 27, 2010 No. A07-14206/2009; similar practice - decisions of the Federal Antimonopoly Service of the Volga-Vyatka District dated September 24, 2008 No. A11-11888/2007-K1-9/605-40 and dated June 9, 2008 No. A17-4226 /13-2007, FAS of the East Siberian District dated September 26, 2006 No. A19-9546/06-16-F02-4769/06-S2, FAS of the Far Eastern District dated January 24, 2005 No. F03-A51/04-1 /3254; FAS Moscow District dated November 19, 2009 No. KG-A40/11937-09, FAS Ural District dated April 27, 2010 No. Ф09-2837/10-С2; as well as the resolution of the Sixteenth Arbitration Court of Appeal dated December 29, 2008 No. 16AP-2481/08, etc.).
Opinion of judges, tax authorities and lawyers
Other judges, tax specialists and lawyers believe that in such a situation there is a kind of transfer of public law concepts into the sphere of private law by consolidating the former. Accordingly, if the transaction partner does not issue an invoice, this can be qualified as a violation of the obligation enshrined in private law -legal agreement, and calmly go to court. Therefore, Articles 15 and 309 of the Civil Code of the Russian Federation should be used here. There are currently indeed cases of recovery of damages from a partner in the form of an amount (although very few - for example, decisions of the Federal Antimonopoly Service of the Volga District dated August 26, 2009 No. A65-25888/2008, the Seventeenth Arbitration Court of Appeal dated December 14, 2010 No. 17AP -11862/2010-GK in case No. A50-12478/20104, Eighth Arbitration Court of Appeal dated February 14, 2013 in case No. A75-6948/2012, Ninth Arbitration Court of Appeal dated October 10, 2013 No. 09AP-32624/2013 -GK in case No. A40-95423/2012 and dated January 16, 2012 No. 09AP-32926/2011-AK in case No. A40-48916/11-11-403). Moreover, in the “arsenal” of decisions of the arbitrators there is a resolution of the Supreme Arbitration Court (PP of the Supreme Arbitration Court of the Russian Federation dated April 9, 2009 No. 16318/08 in case No. A40-37607/07-51-379), from which it is clear that the servants of Themis considered the issue of refusal to refund VAT overpaid to the seller by the buyer due to an erroneous tax rate, unjust enrichment of the seller, i.e. from the point of view of civil law. And despite the fact that in that dispute it was not about losses, it is quite possible to use it as an additional, albeit indirect, argument. However, it should be remembered that if a company decides to go to arbitration to recover from a partner an amount equal to the uncollected VAT deduction, then it will need, in particular, to prove to the arbitrators that the inspectors refused precisely because there were no documents among the documents provided. invoices. But here another difficulty may arise.
“The fact is,” explains tax lawyer Sergei Voronin, “that the Constitutional Court once already indicated, and the arbitration courts supported the conclusion that the invoice is not the only document confirming the right to and the latter can be fully confirmed by other papers indicating payment value added tax (definition of the Constitutional Court of the Russian Federation dated October 2, 2003 No. 384-O, resolution of the Federal Antimonopoly Service of the West Siberian District dated March 17, 2011 No. A70-1837/2010, Federal Antimonopoly Service of the Moscow District dated September 28, 2011 No. A40- 143191/10-28-1189, determination of the Supreme Arbitration Court of the Russian Federation dated January 27, 2011 No. VAS-63/11). Thus, it will be more difficult to prove in arbitration that the deduction could not be obtained precisely because of the lack of an invoice. Therefore, before going to court, the affected company should try to obtain a deduction using other documents. And only if the tax authorities refuse her, should she go to arbitration. In this case, one of the main evidence will have to be this very refusal, which clearly states that the taxpayer’s demands are not supported precisely because of the lack of an invoice.”
What is the best way out in the following situation: on October 1, 2014, we carried out an act (signed on both sides about the technological connection to the network) for 11 million rubles, the supplier promised to issue an invoice after payment, but we never received it. The amount of VAT is 1.7 million rubles. was declared by us for deduction in the 4th quarter of 2014. As of today, this supplier declares that he did not carry out sales at home, and refuses to issue an invoice retroactively.
One of the prerequisites for accepting VAT for deduction is that the organization has a correctly executed invoice from the supplier. Since your organization does not have such a document, it was impossible to declare a deduction in the 4th quarter of 2014; it is necessary to adjust the tax base for this period, pay additional VAT and penalties, and then submit an updated declaration.
The supplier is obliged to issue an invoice no later than five calendar days after the provision of services (in your case, after signing the act). The Tax Code contains only the obligation to issue a document, that is, to issue it; there is no obligation to transfer it to the buyer, just as there is no responsibility for missing the deadline for issuing an invoice. In this situation, we recommend that you request in writing that the supplier hand over the documents, and also write that if the document is not given to you, then you will demand in court an invoice, as well as compensation for losses that the company incurred due to the inability to claim VAT deductions. Please inform that you will also contact the Federal Tax Service so that the tax authorities will oblige the counterparty to issue an invoice. In the future, if the document is not transferred to your organization, you have the right to contact the specified authorities. Arbitration practice on the issue of providing invoices is ambiguous, but there are also positive decisions in favor of the buyer.
When can input VAT be deducted?
Egor Kryuchkov, Deputy Head of Department at the Intellectual Capital Law Firm:
INDEPENDENT EXPERTS
- Formally, you do not have the right to force the supplier to hand over an invoice. In Article 169 of the Tax Code of the Russian Federation there is only an obligation to issue a document, that is, to execute it, and not to transfer it to the buyer. And the methods of protecting rights established by the Civil Code of the Russian Federation are not applied in tax relations. At the same time, the right to deduction can be confirmed by other documents. For example, payments, invoices and an agreement with allocated VAT. Auditors will likely challenge the deductions. But judges support companies, for example, in the resolution of the Federal Arbitration Court of the Moscow District dated November 12, 2012 No. A40-38882/12-20-201.
Igor Gusev, senior lawyer of the Volga region directorate of VEGAS LEX:
- There is no mechanism in tax legislation that allows you to force a counterparty to hand over invoices. But you have the right to demand documents from the supplier if the contract contains a condition that he is obliged to transfer the documents to you. If he refuses this, then you can go to court, since the supplier is violating contractual obligations. Judges support buyers in such disputes. For example, in the ruling of the RF Armed Forces dated November 14, 2014 No. 305-ES14/4526.
Maria Gramoteeva, expert of the accounting and taxation department of UNP:
OUR OPINION
- It is worth using several options at once to receive documents from the supplier. First, you need to send a letter to the counterparty requesting an invoice. And it will intimidate the counterparty that the company will go to court if he does not hand over the papers. Additionally, you can send a letter to the Federal Tax Service so that the tax authorities oblige the counterparty to issue an invoice. Inspectors are not required to comply with the request. But the request will be further evidence that the company tried to obtain documents by all means. Finally, you can demand a penalty if it is provided for in the contract for late delivery of invoices. In the future, so that the counterparty does not delay the documents, the contract should link the date of payment with the moment of transfer of the papers.
Situation: A car purchase and sale agreement has been concluded between two organizations that are VAT payers. The contract specifies the price of the car, including VAT. The purchasing organization, based on the invoice issued by the seller, paid the price of the car in full, including the amount of VAT. However, later, when the buyer turned to the seller with a request to provide an invoice, he was refused on the grounds that the car belongs to an individual, was sold by an organization under a commission agreement and, accordingly, VAT is not subject to VAT on the amount of the sale of the car. At the same time, the seller refused to voluntarily return the amount of VAT paid.
Let us analyze possible ways to protect the purchasing organization, taking into account the provisions of the current civil and tax legislation and existing judicial practice. 1. Refusal to fulfill the contract In accordance with clause 2 of Article 456 of the Civil Code of the Russian Federation, unless otherwise provided by the purchase and sale agreement, the seller undertakes, simultaneously with the transfer of the thing, to transfer to the buyer its accessories, as well as related documents provided for by law, other legal acts or the contract. In accordance with Article 464 of the Civil Code of the Russian Federation, if the seller does not transfer or refuses to transfer to the buyer documents related to the goods, which he must transfer in accordance with the law, other legal acts or the sales contract, the buyer has the right to refuse the goods, unless otherwise provided agreement. The seller’s obligation to provide an invoice within 5 (five) calendar days from the date of shipment of the goods or from the date of receipt of payment amounts is provided for in clause 3 of Art. 168 Tax Code of the Russian Federation. In accordance with paragraph 1 of Art. 169 of the Tax Code of the Russian Federation, an invoice is a document that serves as the basis for the buyer to accept the VAT amounts presented by the seller of goods for deduction. Judicial practice has reflected the position that since an invoice is a document subject to transfer after shipment of goods by force of law, failure to fulfill this obligation by the supplier gives the buyer the right to demand its fulfillment, including setting a deadline for the transfer of documents, and to refuse the contract, if the documents are not transferred within the prescribed period (Resolution of the Federal Antimonopoly Service of the Volga Region dated April 25, 2007 in case No. A65-20121/2006). At the same time, the Supreme Arbitration Court of the Russian Federation does not support this position. As stated in the Determination of the Supreme Arbitration Court of the Russian Federation dated January 15, 2008 N 17818/07 in case N A40-20189/07-85-189, the seller’s obligation to transfer documents related to the thing as a civil obligation arises if such an obligation is established by law or other legal acts or agreement. However, the Tax Code of the Russian Federation does not establish the seller’s obligation to transfer the invoice; Tax legislation does not regulate civil legal relations and does not apply to them. Therefore, the argument that the basis for the emergence of a civil obligation to transfer an invoice is the norms of the Tax Code of the Russian Federation (clause 3 of Article 168) is unfounded. 2. Claim for compulsion to provide an invoice Taking into account the above position of the Supreme Arbitration Court of the Russian Federation, in the absence of a direct indication in the contract of the obligation to provide an invoice, the likelihood that such a claim will be satisfied is extremely low. Moreover, the Ninth Arbitration Court of Appeal, in Resolution No. 09AP-34383/2010-GK dated 03/09/2011, spoke more radically, pointing out that by bringing a claim for the obligation to issue and provide an invoice, the plaintiff, in essence, asks to force the defendant to the fulfillment of a public legal obligation to pay tax, in connection with which the stated claim does not relate to the methods established by current legislation for the protection or restoration of violated or disputed civil rights. 3. Recovery of the paid amount of VAT as unjust enrichment We believe that in this case, the way to protect the interests of the purchasing organization will be to recover the amount of VAT paid by the buyer as unjust enrichment. The Supreme Arbitration Court of the Russian Federation, in Resolution No. 16318/08 dated 04/09/2009, expressed its position regarding the collection of VAT amounts as unjust enrichment under service contracts. As the Supreme Arbitration Court of the Russian Federation indicated, since the legislation does not provide for special rules on the return of overpaid amounts under a service agreement and the impossibility of applying the rules on unjust enrichment does not follow from the essence of the relations under consideration, it is possible to apply to disputed legal relations the provisions of Article 1102 of the Civil Code of the Russian Federation on the obligation of the acquirer to return to the victim unjustly acquired or saved property (unjust enrichment). Consequently, the amount of value added tax was calculated by the defendant and paid by the plaintiff at a rate not provided for by law, and is overpaid (erroneously) paid, and therefore subject to refund. Courts satisfy claims for the recovery of amounts of paid VAT as unjust enrichment on various grounds: if the transaction itself is not subject to VAT (Resolution of the Federal Antimonopoly Service of the North-West District dated November 22, 2010 in case No. A56-52489/2008), in the case of applying a tax rate, not provided for by law (Resolution of the Federal Antimonopoly Service of the Northern Territory of February 1, 2010 in case No. A56-6340/2008). In this case, an individual (car owner) who is not an individual entrepreneur is not recognized as a VAT payer (Article 143 of the Tax Code of the Russian Federation). Therefore, when an organization sells property owned by such a person, VAT is not charged on the value of the latter. But you should pay attention to the following. In these examples of judicial practice, as in the situation under consideration, the seller accrued and presented for payment to the buyer the amount of VAT without the grounds established by law (applied an improper rate, charged VAT on transactions not subject to VAT). Thus, if the amount of VAT is calculated and presented for payment in accordance with current legislation, then it seems impossible to recover it as unjust enrichment on the sole grounds that the seller did not present an invoice. In this regard, taking into account the above-mentioned position of the judicial authorities about the impossibility of refusing to fulfill the contract or forcing the seller to provide an invoice on the basis of the norms of the Tax Code of the Russian Federation, the obligation to provide an invoice and liability for failure to fulfill this obligation, including possibility of refusal to fulfill the contract. Nina Kutsova – lawyer in commercial practice at Rightmark group (St. Petersburg)How this article will help: We will tell you what measures to take if your suppliers or buyers do not provide you with documents for a long time.
What it will protect you from: You won’t have to recalculate your income tax or VAT every time because your counterparties have delayed the primary invoice or invoice.
As an accountant, it is important for you to receive primary documents and invoices from your counterparties on time. After all, if the papers arrive late in the next quarter, only then will it be possible to take into account expenses and claim input VAT deduction. That is, later than it could have been if you had received documents from your counterparties on time.
Moreover, difficulties arise when documents are delayed by your suppliers. And in case buyers do not return your primary copies for a long time. In this article we will provide practical recommendations on what to do if partners are constantly delaying paperwork. Choose the tips that suit you.
We also recommend that you look at the table below. There we showed how the fact that documents from partners were received after the close of the quarter would affect taxes. Moreover, you can see what risks arise if the papers are delayed by your buyers. And vice versa, when suppliers do not deliver documents on time.
| Late document | Tax | The documents were detained by the seller | The documents were detained by the buyer |
| Invoice | VAT | If you have an envelope with a postmark that confirms that the documents arrived later, then deduct input VAT on the date of actual receipt of the invoice. Is there no such evidence? Then the deduction must be shown in the previous period. To do this, make an additional sheet to the purchase book for the last quarter and submit an update | In any case, VAT must be calculated on the date when you prepared the invoice. If you did not do this right away, then fill out now an additional sheet for the sales book of the previous period. And also pay the arrears and penalties and submit an updated declaration to the inspectorate |
| Invoice, act or other primary document | Income tax | You can recognize expenses in the current period, and then you will be able to do without clarification. But when it comes to goods, you can write off their cost only if you have already sold these products to further customers. Have you already accepted the goods for accounting and written off their cost as expenses as uninvoiced supplies? Then you will have to recalculate the costs. Before this, if necessary, pay the arrears and penalties, submit an amendment | Income must be taken into account on the same day as the primary income statement is dated. If you do not do this right away, you will need to pay the arrears, penalties and submit an updated declaration |
What do you do most often if counterparties delay documents?
Tip one: specify in the contract how you will exchange documents with the counterparty
Suppose you have a counterparty with whom you have been working for a long time, but you often receive documents from them late. Another situation: you are just about to enter into a long-term contract with a partner and assume that you will have to frequently exchange papers with him.
In such cases, we recommend establishing special conditions either in a new contract or in an additional agreement to the existing one. Namely, write down in what ways you and your partner will exchange papers, at whose expense the transfer will take place.
Let's say the counterparty is in the same city as you. Then establish that the partner will have to deliver the documents by courier, and indicate within what time frame. Or perhaps you will send your representative for the papers. In this case, also do not forget about the deadlines.
What if the partner is in another city? Write down in the contract a condition that the parties will exchange documents by express mail. And since its services are more expensive than regular mail, specify in the agreement at whose expense the documents will be sent.
Of course, this is only possible if the counterparty agrees to include such a condition in the contract. That is, when both parties to the contract want to restore order in the document flow.
Another piece of advice for when you exchange a large number of documents with a counterparty. It would be useful to stipulate in the agreement that at the end of the month the parties send each other a list of documents received for signature and sent.
This way you can control which documents you have not yet received from your partner. We have provided a sample agreement with a clause on the exchange of documents below.
Experience shared by: Olesya Kachan- Ch. Accountant LLC "Business Alliance":
In contracts we indicate: copies of documents are correct as long as there are no originals.
Tip two: ask buyers for scanned copies of documents
Here is another piece of advice in case your buyers (customers) have still not returned some copies of invoices and acts to you. First, contact them and find out what the reason is. Perhaps the buyer has not yet signed the deed or invoice. Let's say because the goods are in transit. Or the partner’s director did not have time to sign the act.
In this situation, ask the buyer's accounting department to contact you as soon as the documents are ready. And ask them to send you scanned copies of signed documents. This will help you make sure that the buyer agreed with the data in the primary account.
Let us explain why it is still important to obtain signed originals of your own documents.
In general, it is safe to recognize income in tax accounting in the quarter in which you issued invoices or acts (transferred goods, provided services or performed work). That is, do not wait for counterparties to sign them. Officials and judges insist on this. Examples are the letter of the Ministry of Finance of Russia dated November 13, 2009 No. 03-03-06/1/750 and the determination of the Supreme Arbitration Court of the Russian Federation dated December 8, 2010 No. VAS-15640/10. Officials and judges argue for this by saying that when calculating income tax, income from sales is determined on the date when ownership of goods (work, services) is transferred to the buyer. And this, according to officials, happens when the supplier signs the primary agreement.
VAT also needs to be charged immediately after you issue an invoice to the buyer. After all, the tax base is determined on the date of shipment of goods or transfer of work and services. This is directly stated in Article 167 of the Tax Code of the Russian Federation. That is, here too, it would seem, it is not necessary to wait for your copies signed by the counterparty.
Still, we recommend getting buyers to return the papers with signatures to you. Without a primary document, you may be fined for gross violations of the rules for accounting for income and expenses under Article 120 of the Tax Code of the Russian Federation. The size of the sanction is 10,000 or 30,000 rubles.
Carefully!
Recognizing expenses based on copies of documents alone is risky.
There is another reason why it is still worth requesting primary information from buyers. Perhaps the counterparties did not agree with the results of work, services, or refused some goods. This means that your revenue and VAT tax base may change. You will only find out about this after receiving initial feedback from buyers. And if you have already reflected the transactions without waiting for the signature of the second party, then you will have to adjust the revenue and the amount of VAT.
But note: in the opposite situation, when documents are delayed by the supplier, recognizing expenses based only on scanned copies is risky. Tax authorities may simply not recognize such evidence without living signatures. In any case, you must have the originals of the primary documents from the seller in your hands.
Experience shared by: Valentina Ivoilova - Ch. accountant LLC "Consultant":
Most often, documents are delayed by service providers. If the originals are late, we exchange copies with our counterparties by email or fax. And then, of course, we wait for the original documents from the partners.
Frequently asked questions from practice about documents
The delivery note, which the buyer signed, was lost in the mail. We recognized expenses based on the scanned copy. Can inspectors require the original?
Yes, tax authorities may request original documents. The basis here is paragraph 2 of Article 93 of the Tax Code of the Russian Federation.
Is it possible to stipulate sanctions in the contract with the supplier in case he violates the deadlines for transferring documents?
Of course you can. But only if your counterparty does not object to this. In other words, if both parties to the contract are interested in establishing ideal order in the document flow.
We received a late invoice from the seller. Is it possible to deduct VAT in the current period on the basis that we have an entry in the journal of incoming documents?
No, tax authorities and judges do not agree with this (resolution of the Federal Antimonopoly Service of the North Caucasus District dated July 7, 2008 No. F08-3751/2008).
Can we be fined under Article 120 of the Tax Code of the Russian Federation for the absence of a primary income tax if we did not underestimate taxes?
Yes, if you do not have a primary income, then the auditors will consider this a violation under Article 120. It does not matter whether you have arrears or not. It’s just that in case of arrears the amount of the fine will be higher.
Tip three: send a letter to the director of the counterparty with a request to provide original documents
A conversation with the counterparty's accounting department does not always yield results. If there are still no documents, then it makes sense to write a letter addressed to the director of the partner (we have provided a sample below).
In the letter, demand that documents be provided as soon as possible. And explain to the counterparty what your company is risking due to the fact that he delays the documents.
Such a letter will also help if you reflected transactions based on scanned copies, and tax inspectors came to check you. Only here you should hurry up and, if possible, send the letter immediately electronically or by fax.
To quickly receive original documents from your counterparty, ask the director of your company for help. A letter on his behalf or a phone call can speed up the receipt of the necessary initial form and invoices.
But before sending the director to the partners, conduct a briefing. Explain to your boss why the originals are needed and what tax risks your company will face without the counterparty’s documents.
Experience shared by: Marina Artyushenkova- Ch. Accountant of Press Bureau LLC:
The question regarding documents that are being delayed by counterparties is very relevant for me! Mostly I write letters or call them. I convinced the director to help me - he also calls and writes.
Tip four: fill out the documents instead of the seller
It happens when you can’t wait for documents from the seller, it’s easier to fill out the initial form and invoices yourself instead. And then just give him the documents to sign.
Important detail
In exceptional cases, you can fill out the document for the supplier and give it to him to sign.
Yes, the buyer is not prohibited from filling out the primary form. Therefore, you can safely do this for the supplier (Article 9 of the Federal Law of December 6, 2011 No. 402-FZ). Yes, you can also issue an invoice. Just fill in the details of the seller and the shipper where necessary.
It is clear that you should use this advice only in extreme cases. And even then when we are talking about two or three documents, and not about a large volume of papers. Naturally, you won’t be able to regularly fill out primary documents and invoices instead of your counterparty.