173 of the Tax Code of the Russian Federation, including taxpayers applying the simplified taxation system. Please explain the cases, procedure and consequences of the application of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, including by taxpayers applying the simplified

ST 173 Tax Code of the Russian Federation.

1. The amount of tax payable to the budget shall be calculated at the end of each tax period as reduced by the amount of tax deductions provided for in Article 171 of this Code (including tax deductions provided for in paragraph 3 of Article 172 of this Code), the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with this Chapter.

2. If the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with paragraph 3 of Article 170 of this Code, the positive difference between the amount of tax deductions and the amount tax calculated on transactions recognized as an object of taxation in accordance with subparagraphs 1 and 2 of paragraph 1 of Article 146 of this Code, is subject to reimbursement to the taxpayer in the manner and on the conditions provided for by Articles 176 and 176.1 of this Code, except for cases where the tax return has been filed by the taxpayer three years after the end of the relevant tax period.

The second paragraph has been deleted.

4. When selling goods (works, services) specified in Article 161 of this Code, the amount of tax payable to the budget shall be calculated and paid in full by the tax agents specified in Article 161 of this Code, unless otherwise provided by clause 4.1 of this Article. .

4.1. The amount of tax payable to the budget by the tax agents specified in paragraph 8 of Article 161 of this Code is determined at the end of each tax period as the total amount of tax calculated in accordance with paragraph 3.1 of Article 166 of this Code in relation to the goods specified in paragraph 8 of Article 161 of this Code, increased by the amounts of tax restored in accordance with subparagraphs 3 and 4 of paragraph 3 of Article 170 of this Code, and reduced by the amounts of tax deductions provided for by paragraphs 3, 5, 8, 12 and 13 of Article 171 of this Code in terms of operations carried out the specified tax agents, taking into account the specifics provided for in paragraph 3 of Article 172 of this Code.

5. The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer with the allocation of the tax amount:

1) persons who are not taxpayers or taxpayers exempted from the performance of taxpayer obligations related to the calculation and payment of tax;

2) by taxpayers in the sale of goods (works, services), transactions for the sale of which are not subject to taxation.

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

6. When a taxpayer transfers to special tax regimes or when a taxpayer begins to use the right to exemption provided for in Article 145 of this Code, the tax amounts calculated upon release of goods in accordance with the customs procedure for release for internal consumption upon completion of the customs procedure of a free customs zone in the territory of the Special Economic Zone in the Kaliningrad Region, are payable in the manner prescribed by paragraph one of clause 1 of Article 174 of this Code, for the tax period that falls on the last calendar day before the date of transition to special tax regimes, or for the tax period that falls on the last calendar the day prior to the start of the use by the taxpayer of the right to the exemption provided for in Article 145 of this Code, in respect of goods not used to carry out transactions recognized as objects of taxation in accordance with this Chapter, without applying I am exempt from the tax established by this chapter.

Commentary on Art. 173 of the Tax Code

The amount of tax that must be paid to the budget is the difference between the total amount of VAT calculated at the end of the tax period and the amount of tax deductions. Consequently, the "input" VAT is subject to reimbursement to the taxpayer in the event that the amount of tax deductions exceeds the total amount of tax calculated by him.

official position.

So, in the letter of the Federal Tax Service of Russia dated November 17, 2014 N GD-3-3 / [email protected] the issue of the timing of VAT payment and the application of measures provided for in Art. Art. 75, 76 of the Tax Code of the Russian Federation, if the VAT return for the III quarter of 2014 was submitted on 02.10.2014, and on 05.10.2014 a decision was made to liquidate the organization.

The official body pointed out that the deadlines for payment of value added tax, established by Article 173 of the Tax Code of the Russian Federation, do not change. At the same time, the sequence of fulfillment of obligations to pay tax is determined by the civil legislation of the Russian Federation. The payment by the taxpayer of the amount of taxes at a later date than established by the legislation of the Russian Federation on taxes and fees entails the accrual of penalties in accordance with paragraph 3 of Article 75 of the Tax Code of the Russian Federation.

In addition, if a decision is made to recover unpaid taxes and penalties, the tax authority has the right to make a decision to suspend the taxpayer's operations on bank accounts in accordance with the requirements of Article 76 of the Tax Code of the Russian Federation.

The Constitutional Court of the Russian Federation received a complaint in which the applicant challenges the constitutionality of a number of provisions of the legislation on taxes and fees, in particular paragraph 1 of Article 173 of the Tax Code of the Russian Federation.

By the ruling of the Constitutional Court of the Russian Federation of November 20, 2014 N 2624-O, it was refused to accept the complaint of the Kapitan closed joint-stock company on violation of constitutional rights and freedoms by the provision of Article 346.27, paragraph 1 of Article 171 and paragraph 1 of Article 173 of the Tax Code of the Russian Federation.

The Constitutional Court clarified that the provisions of Articles 171 and 173 of the Tax Code of the Russian Federation contested by the applicant establish the general conditions for the application of tax deductions for value added tax. These provisions provide for the possibility for a taxpayer to legally reduce the amount of value added tax calculated for payment to the budget by tax deductions established by law. Thus, they are aimed at exercising the right of the taxpayer to apply the tax deduction, and not to limit it.

Thus, in themselves they cannot be considered as violating the constitutional rights and freedoms of the applicant in the aspect indicated by him.

An intermediary who is not a VAT payer is obliged to bill the buyer with the allocation of the amount of tax on his own behalf, if the principal is on the general taxation system. The intermediary is not obligated to pay the tax indicated in such an invoice to the budget (see, for example, letter of the Ministry of Finance of Russia dated 12.05.2011 N 03-07-09 / 11).

According to the official position, a person who has received an invoice with a allocated amount of value added tax from a person who is not a payer of value added tax is not entitled to deduct such an amount of tax.

Thus, the Ministry of Finance of Russia in letters dated 16.05.2011 N 03-07-11/126 and dated 01.04.2008 N 03-07-11/126 says that there are no grounds for deducting VAT amounts on invoices issued by organizations applying USN. The financial department notes that, in accordance with, drawn up and exhibited in violation of the current procedure, they are not grounds for accepting the amounts of value-added tax presented to the buyer by the seller for deduction. Consequently, the value added tax in invoices issued upon the sale of goods (works, services) by an organization that applies the simplified tax system and does not fulfill the duties of a taxpayer of value added tax, provided for in Article 174.1 of the Tax Code of the Russian Federation, and also does not sell goods (works, services ) on its own behalf on the basis of a commission agreement or an agency agreement, is not accepted for deduction from the buyer of these goods (works, services).

Attention!

Paragraph 27 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of May 30, 2014 N 33 "On Certain Issues Arising from Arbitration Courts in Considering Cases Related to the Collection of Value Added Tax" explains that, by virtue of paragraph 2 of Article 173 of the Tax Code of the Russian Federation, the positive difference formed in as a result of the excess of the amount of tax deductions over the amounts of tax calculated on taxable transactions, is subject to reimbursement to the taxpayer from the budget, provided that he submits a tax return before the expiration of the three-year period established by this paragraph.

Since this norm does not provide otherwise, tax deductions may be reflected by the taxpayer in the tax return for any of the tax periods included in the corresponding three-year period.

At the same time, the rule of paragraph 2 of Article 173 of the Tax Code of the Russian Federation on the three-year deadline for filing a tax return must be observed by the taxpayer even if he includes tax deductions in the submitted revised tax return.

The courts point to the possibility of deducting value added tax on the invoice issued by the payer of the single tax paid when applying the simplified tax system.

At the same time, this position is the most likely for them, since the Presidium of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 14315/10 of March 29, 2011, came to the conclusion that persons who are not payers of value added tax, if they issue invoices to buyers of goods with the allocation of the tax amount, they must pay the received tax without taking into account tax deductions that can be declared only by payers of this tax, to which the persons named in paragraph 5 of Article 173 of the Tax Code of the Russian Federation do not apply.

For example, based on the Decree of the Federal Antimonopoly Service of the Moscow District dated September 25, 2012 N A40-79771 / 11-90-347, the seller, although using the simplified taxation system, but having issued an invoice to the buyer with the allocated tax amount, has an obligation to pay tax to the budget , and the buyer has the right to apply a tax deduction.

According to the Decree of the Federal Antimonopoly Service of the Volga District dated 05.10.2012 N A65-27098 / 2011, the purchase of goods from a counterparty using the simplified tax system is not a reason for the organization to refuse to apply tax deductions, provided that its actions are in good faith and there are grounds for applying a tax deduction.

However, even before the adoption of Decree N 14315/10, the courts came to similar conclusions.

Thus, the Federal Antimonopoly Service of the Moscow District, in Decree N KA-A40 / 8482-09 of August 28, 2009, when making a decision in favor of the taxpayer, was guided by the provisions of paragraph 5 of Article 173, Articles 169, 171, 172, 210, 54, 227, 218 of the Tax Code of the Russian Federation and proceeded from the fact that the entrepreneur had rightfully accepted for deduction the amounts of VAT presented to her by the supplier and had the right to receive a standard tax deduction in accordance with the application. The side of the taxpayer was also accepted by the Federal Antimonopoly Service of the Volga-Vyatka District in Resolution No. A79-1993/2007 of December 30, 2008.

In the Decree of 02.12.2008 N A19-4782 / 08-57-F02-5536 / 08, A19-4782 / 08-57-F02-6112 / 08 (Determination of the Supreme Arbitration Court of the Russian Federation of 04.08. transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation) the FAS of the East Siberian District recognized as legitimate the taxpayer's argument that the circumstances referred to by the tax authority cannot serve as a reason for refusing to reimburse value added tax, since the taxpayer complied with all the conditions established by the tax authority legislation for the application of tax deductions for value added tax.

The court pointed out that the duty to prove the legitimacy of the use of value added tax deductions by the legislator is assigned to the taxpayer. At the same time, the data of primary documents drawn up in the course of a business transaction and submitted by the taxpayer to the tax authorities must meet the requirements established by law and contain reliable information about the circumstances with which the law associates the exercise of the right to tax deductions.

Meanwhile, the tax authorities are not released from the obligation to prove both the fact of the presence of false information in the primary documents submitted by the taxpayer, and the bad faith of the taxpayer in the implementation of relevant business transactions.

The court found that the basis for refusing to refund the amount of value added tax on the invoice issued by the supplier, the tax authority indicated the use by this supplier of the simplified tax system and the absence of his obligation to pay value added tax on sales of goods to the taxpayer. In this regard, the tax authority believes that there is no real source for reimbursement from the budget to the taxpayer of the amounts of value added tax presented by this supplier.

When considering the case, the court also found that the indicated supplier issued an invoice to the taxpayer, the cost of the purchased goods (raw plywood, sawlogs, softwood pulpwood) was paid by the taxpayer, taking into account value added tax.

Thus, the court concluded that the supplier, having issued an invoice with the allocation of a separate line of value added tax in it, on the basis of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, must pay the amount of tax presented in the invoice, and the taxpayer, having paid the cost goods (works, services) purchased, taking into account the value added tax, is entitled to declare the amount of tax deductible and refundable, in connection with which the court found unreasonable the refusal to refund the value added tax on the invoice issued by this supplier.

Similar conclusions were reached by the Federal Antimonopoly Service of the East Siberian District in Resolution No. A33-16437/07-F02-3580/08 of July 30, 2008, and the Federal Antimonopoly Service of the West Siberian District in Resolution No. F04-2122/2009 of April 16, 2009 (4284- A27-25).

In Decree N KA-A41 / 6731-09 of 24.07.2009, the Federal Antimonopoly Service of the Moscow District checked the complaint of the tax authority, which raises the question of the cancellation of judicial acts due to the fact that the taxpayer, in violation of paragraphs 2, 5 of Article 169 of the Tax Code of the Russian Federation, presented for deduction value added tax on an invoice issued by the supplier illegally, since the counterparty is on the simplified tax system.

The court did not accept the tax authority's argument that it was unlawful for a taxpayer to present a tax deduction for value added tax on a disputed invoice received by a taxpayer from a supplier on the simplified tax system.

As the tax authority pointed out, the taxpayer's supplier applied the simplified tax system and, in violation of subparagraph 4 of paragraph 2 of Article 146 of the Tax Code of the Russian Federation and paragraph 3 of Article 169 of the Tax Code of the Russian Federation, issued an invoice to the taxpayer, which indicates the amount of value added tax, therefore, in accordance with paragraph 5 of Article 173 The Tax Code of the Russian Federation must pay the received amounts of tax to the budget.

The court pointed out that the counterparty's improper performance or non-performance of its obligations to pay taxes does not affect the buyer's right to tax deductions if the documents submitted to the inspection for the application of the said deduction comply with the requirements of the Tax Code of the Russian Federation. The legislation on taxes and fees does not impose on the taxpayer the exercise of control functions for the payment of value added tax by its counterparty, since these actions relate to the activities of the tax authority.

At the same time, the court noted that these circumstances cannot be legal grounds for refusing to deduct a taxpayer who has complied with the procedure and conditions for its application.

In Decree N A14-11246/2008360/28 dated 02.09.2009 N A14-11246/2008360/28, the Federal Antimonopoly Service of the Central District rejected the argument of the tax authority that since the supplier used the simplified tax system and was not a VAT payer, the taxpayer is not entitled to make tax deductions for settlements with this supplier. In the invoice and the act of work performed (overhaul of the roof of the shops), the signatures on behalf of the head of the company were made not by the head himself, but by another person, which is confirmed by the handwriting examination.

At the same time, the court pointed out that the issuance by the counterparty of a taxpayer who is not a payer of value added tax in connection with the application of the simplified tax system, an invoice with the allocation of the amount of tax does not affect the right of such a taxpayer to a tax deduction of this amount of tax, since, by virtue of paragraph 5 of Article 173 The Tax Code of the Russian Federation in this case, the obligation to pay value added tax to the budget is assigned to the person applying the simplified tax system.

In Decree N А53-24180/2008-С5-23 of 28.09.2009 N А53-24180/2008-С5-23, the Federal Antimonopoly Service of the North Caucasus District also rejected the argument of the tax authority that the application of the USN by the counterparty of an entrepreneur who issued invoices to the company with a dedicated value added tax is the basis for refusal to refund value added tax.

In Decree N КА-А41/4585-09 dated 26.05.2009, the Federal Antimonopoly Service of the Moscow District recognized as unfounded the complaint of the tax authority that, since the seller issued invoices to the taxpayer with the inclusion of value added tax amounts in them, while the counterparty applies USN and according to article 346.11 of the Tax Code of the Russian Federation is not recognized as a payer of value added tax, the inspection concluded that it was illegal to include amounts of value added tax in invoices issued.

The court found that the goods (diesel fuel) were received by the taxpayer, registered on the basis of the invoices, which were submitted to the tax authority for verification and in the case file. The tax authority has no claims to the form and content of these documents, therefore, the taxpayer lawfully accepted the VAT deduction on the disputed invoice.

It should also be noted that the courts take a similar position regarding the deduction of value added tax on invoices issued by UTII and UAT payers.

Paragraph 5 of the commented article became the subject of consideration by the Constitutional Court of the Russian Federation for its compliance with the Constitution of the Russian Federation.

In the Resolution of the Constitutional Court of the Russian Federation of June 3, 2014 N 17-P "On the case of checking the constitutionality of the provisions of paragraphs 6 and 7 of Article 168 and paragraph 5 of Article 173 of the Tax Code of the Russian Federation in connection with the complaint of the Limited Liability Company Trading House Kamsnab" states: Clauses 6 and 7 of Article 168 and Clause 5 of Article 173 of the Tax Code of the Russian Federation in their interrelation should not be understood in law enforcement practice as allowing recognition of a person who is not a payer of value added tax by virtue of paragraph three of Clause 4 of Article 346.26 of the Tax Code of the Russian Federation and does not issue invoices to buyers invoices with the amount of value added tax allocated in them, obliged to pay this tax to the budget only on the grounds that such a person, believing it necessary to use the general taxation system, indicated it in his tax return, calculating it in the retail sale of goods (works, services ) the amount of tax by calculation. Incorrect (in particular, erroneous) declaration of value added tax amounts should not lead to its collection, since the obligation to calculate and pay tax arises from the law (if there are grounds provided for by the Tax Code of the Russian Federation).

Thus, paragraphs 6 and 7 of Article 168 and paragraph 5 of Article 173 of the Tax Code of the Russian Federation do not contradict the Constitution of the Russian Federation, since, according to their constitutional and legal meaning in the system of current legal regulation, they do not imply imposing on a person engaged in the retail sale of goods without issuing invoices to buyers - invoices, the obligation to pay value added tax to the budget, if such a person, by the type of entrepreneurial activity carried out by him, belongs to the payers of the single tax on imputed income.

Based on the foregoing and guided by Articles 6 and 47.1, part two of Article 71, Articles 72, 74, 75, 78, 79 and 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", the Constitutional Court of the Russian Federation decided to recognize paragraphs 6 and 7 of Article 168 and paragraph 5 of Article 173 of the Tax Code of the Russian Federation that do not contradict the Constitution of the Russian Federation, since the provisions contained in them, in their constitutional and legal sense in the system of current legal regulation, do not imply the possibility of imposing on a person engaged in the retail sale of goods without issuing invoices to buyers, the obligation to pay to the budget of the value added tax, if such a person, by the type of entrepreneurial activity carried out by him, belongs to the payers of the single tax on imputed income.

Attention!

From January 1, 2014, the addition of clause 6 to article 52 of the Tax Code of the Russian Federation, in accordance with which the amount of tax is calculated in full rubles, comes into force. A tax amount of less than 50 kopecks is discarded, and a tax amount of 50 kopecks or more is rounded up to the full ruble (Item 9 of Article 1 of Federal Law No. 248-FZ of July 23, 2013).

Thus, from the indicated time, the corresponding provision will be enshrined in the Tax Code of the Russian Federation for all taxes. At the same time, with regard to VAT, a similar rule is currently enshrined in paragraph 17 of the Procedure for filling out a tax return for value added tax, approved by Order of the Ministry of Finance of Russia dated October 15, 2009 N 104n.

Paragraph 5 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 N 33 "On Certain Issues Arising from Arbitration Courts in Considering Cases Related to the Collection of Value Added Tax" explains that subparagraph 1 of paragraph 5 of Article 173 of the Tax Code of the Russian Federation provides for the obligation of persons, who are not tax payers, as well as persons released from the performance of duties of tax payers, in the event that they issue an invoice to the buyer with the allocation of the tax amount, transfer the appropriate amount to the budget.

However, the emergence in this case of the obligation to transfer tax to the budget does not mean that the person who issued the invoice acquires the status of a taxpayer in relation to such operations, including the right to apply tax deductions.

The specified person is only obliged to transfer tax to the budget, the amount of which, by virtue of the direct indication of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, is determined based on the amount reflected in the corresponding invoice issued to the buyer. The possibility of reducing this amount for tax deductions is not provided for by the above norm or other provisions of Chapter 21 of the Code.

Also, paragraph 6 of the said Decree states that, by virtue of subparagraph 2 of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, tax is also payable to the budget if, when a taxpayer sells goods (works, services), operations for the sale of which are not subject to taxation, the buyer was billed invoice with the allocation of the amount of tax.

When applying this rule in conjunction with other provisions of Chapter 21 of the Tax Code of the Russian Federation, it must be taken into account that in such circumstances the obligation to pay tax lies with the person who is the taxpayer, in connection with which this person is entitled to apply tax deductions for goods (work, services), property rights acquired for the implementation of these operations. At the same time, the taxpayer is obliged to make appropriate adjustments to the calculation of corporate income tax (tax on personal income), if the amount of tax claimed for deduction was previously taken into account by him when calculating these taxes as part of the cost of purchased goods (works, services), property rights.

Paragraph 28 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of May 30, 2014 N 33 “On Certain Issues Arising from Arbitration Courts in Considering Cases Related to the Collection of Value Added Tax” additionally states that when applying paragraph 2 of Article 173 of the Tax Code of the Russian Federation, the courts, guided by the principle equality of taxation (clause 1 of article 3 of the Tax Code of the Russian Federation), should proceed from the fact that the provisions of the said clause on the deadline for declaring tax deductions cannot be interpreted as establishing different rules in the absence of objective differences.

In this regard, the right to deduct tax can be exercised by the taxpayer only within the period established by this norm, regardless of whether the application of tax deductions results in a positive or negative difference (that is, both the amount of tax to be reimbursed and the amount of tax to be paid). to the budget).

official position.

So, in the letter of the Ministry of Finance of Russia dated 03.12.2014 N 03-07-08 / 61765, the issue of paying VAT on the sale of goods (works, services), the place of sale of which is not recognized as the territory of the Russian Federation, is considered if the taxpayer issued an invoice with the allocation of the amount of VAT . On this issue, the Department of the Ministry of Finance of Russia gave the following explanation.

In the event that a taxpayer, when selling goods (works, services), transactions for the sale of which are not subject to taxation, including due to the fact that the territory of the Russian Federation is not recognized as the place of their sale, invoices with the allocation of the amount of value added tax all the amount of tax indicated in this invoice is payable to the budget.

official position.

In a letter from the Federal Tax Service of Russia dated January 27, 2014 N GD-4-3 / [email protected]"On the procedure for calculating VAT" is reported as follows.

With regard to services provided on the basis of previously concluded contracts and not completed as of September 13, 2013, in cases where changes are made to the contracts, according to which the cost of services will be reduced by the amount of value added tax, the amount of tax calculated and paid by sellers of services upon receipt of payment (partial payment) and returned to buyers on the basis of amendments to contracts, may be accepted by sellers for deduction.

In cases where the buyers of services agree to make amendments to the contracts, according to which the cost of services, excluding value added tax, will correspond to the previously established cost of services, including tax, the amount of value added tax calculated and paid by the sellers upon receipt of payment (partial payment), should not be accepted for deduction from the seller.

In cases where no changes are made to the contracts and the services will continue to be provided taking into account value added tax, the amount of tax presented by sellers to buyers when they are provided, on the basis of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, is payable to the budget. At the same time, the amount of tax payable to the budget is determined as the amount of tax indicated in the relevant invoices submitted by sellers to buyers of services.

1. The amount of tax payable to the budget shall be calculated at the end of each tax period as reduced by the amount of tax deductions provided for by Article of this Code (including tax deductions provided for by paragraph 3 of Article of this Code), the total amount of tax calculated in accordance with with Article of this Code and increased by the amount of tax restored in accordance with this Chapter.

2. If the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with Article of this Code and increased by the amount of tax restored in accordance with paragraph 3 of Article of this Code, the positive difference between the amount of tax deductions and the amount of tax, calculated on transactions recognized as an object of taxation in accordance with subparagraphs 1 and 2 of paragraph 1 of Article 1 of this Code, is subject to reimbursement to the taxpayer in the manner and on the conditions provided for by Articles and 176.1 of this Code, except for cases where the tax return is filed by the taxpayer after three years after the end of the relevant tax period.

The paragraph is excluded. - Federal Law of May 29, 2002 N 57-FZ.

4. When selling goods (works, services) specified in an article of this Code, the amount of tax payable to the budget shall be calculated and paid in full by the tax agents specified in an article of this Code, unless otherwise provided by clause 4.1 of this article.

4.1. The amount of tax payable to the budget by the tax agents specified in paragraph 8 of Article of this Code is determined at the end of each tax period as the total amount of tax calculated in accordance with paragraph 3.1 of Article of this Code in respect of the goods specified in paragraph 8 of Article of this Code, increased by the amounts of tax restored in accordance with subparagraphs 3 and 4 of paragraph 3 of Article 3 of this Code, and reduced by the amounts of tax deductions provided for by paragraphs 3, 5, 8, 12 and 13 of Article of this Code in respect of transactions carried out by the said tax agents, taking into account the features provided for in paragraph 3 of Article of this Code.

5. The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer with the allocation of the tax amount:

1) persons who are not taxpayers or taxpayers exempted from the performance of taxpayer obligations related to the calculation and payment of tax;

2) by taxpayers in the sale of goods (works, services), transactions for the sale of which are not subject to taxation.

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

6. When a taxpayer switches to special tax regimes or when a taxpayer begins to use the right to exemption provided for in Article of this Code, the amounts of tax calculated upon the release of goods in accordance with the customs procedure for release for internal consumption upon completion of the customs procedure of a free customs zone in the territory of the Special economic zone in the Kaliningrad Region, are subject to payment in the manner prescribed by paragraph one of clause 1 of Article of this Code, for the tax period that falls on the last calendar day before the date of transition to special tax regimes, or for the tax period that falls on the last calendar day before the beginning of the use by the taxpayer of the right to the exemption provided for by Article of this Code, in terms of goods not used to carry out transactions recognized as objects of taxation in accordance with this Chapter, without applying the exemption deductions from the tax established by this chapter.

of this Code (including tax deductions provided for by paragraph 3 of Article 172 of this Code), the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with this Chapter.

2. If the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with paragraph 3 of Article 170 of this Code, the positive difference between the amount of tax deductions and the amount tax calculated on transactions recognized as an object of taxation in accordance with subparagraphs 1 and 2 of paragraph 1 of Article 146 of this Code, is subject to reimbursement to the taxpayer in the manner and on the conditions that are provided for in Article 176.1 of this Code, except for cases where the tax return is filed by the taxpayer after the expiration of three years after the end of the relevant tax period.

The paragraph is excluded. - Federal Law of May 29, 2002 N 57-FZ.

4.1. The amount of tax payable to the budget by the tax agents specified in paragraph 8 of Article 161 of this Code is determined at the end of each tax period as the total amount of tax calculated in accordance with paragraph 3.1 of Article 166 of this Code in relation to the goods specified in paragraph 8 of Article 161 of this Code, increased by the amounts of tax restored in accordance with subparagraphs 3 and 4 of paragraph 3 of Article 170 of this Code, and reduced by the amounts of tax deductions provided for in paragraphs 3, , and 13 of Article 171 of this Code in terms of transactions carried out by the said tax agents taking into account the specifics provided for in paragraph 3 of Article 172 of this Code.

5. The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer with the allocation of the tax amount:

1) persons who are not taxpayers or taxpayers exempted from the performance of taxpayer obligations related to the calculation and payment of tax;

2) by taxpayers in the sale of goods (works, services), transactions for the sale of which are not subject to taxation.

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

7. The amount of tax payable to the budget by the successors specified in paragraphs four and five of paragraph 3.1 of Article 170 of this Code is determined in the manner prescribed by paragraph six of paragraph 3.1 of Article 170 of this Code.

The paragraph is excluded. - Federal Law of May 29, 2002 N 57-FZ.

5. The amount of tax payable to the budget is calculated by the following persons if they issue an invoice to the buyer with the allocation of the tax amount:

1) persons who are not taxpayers or taxpayers exempted from the performance of taxpayer obligations related to the calculation and payment of tax;

2) by taxpayers in the sale of goods (works, services), transactions for the sale of which are not subject to taxation.

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

Tax Code of the Russian Federation (TC RF) (part two). N 117-FZ of 03/05/2000 ().

Article 173. The amount of tax payable to the budget

2. If the amount of tax deductions in any tax period exceeds the total amount of tax calculated in accordance with Article 166 of this Code and increased by the amount of tax restored in accordance with paragraph 3 of Article 170 of this Code, the positive difference between the amount of tax deductions and the amount tax calculated on transactions recognized as an object of taxation in accordance with subparagraphs 1 and 2 of paragraph 1 of Article 146 of this Code, is subject to reimbursement to the taxpayer in the manner and on the conditions provided for by Articles 176 and 176-1 of this Code, except for cases where the tax declaration filed by the taxpayer three years after the end of the relevant tax period N 119-FZ - Collection of Legislation of the Russian Federation, 2005, N 30, item 3130; Legislative Law of December 17, 2009 N 318-FZ - Collection of Legislation of the Russian Federation, 2009, N 51, Art. 6155).

(The paragraph is excluded by the Federal Law of May 29, 2002 N 57-FZ - Collection of Legislation of the Russian Federation, 2002, N 22, Art. 2026)

(The paragraph is no longer valid on the basis of the Federal Law of July 22, 2005 N 119-FZ - Collection of Legislation of the Russian Federation, 2005, N 30, Art. 3130)

3. The amount of tax payable upon importation of goods into the territory of the Russian Federation and other territories under its jurisdiction is calculated in accordance with paragraph 5 of Article 166 of this Code (as amended by Federal Law No. 306-FZ of November 27, 2010 - Collection of Legislation of the Russian Federation, 2010, N 48, item 6247).

4. When selling goods (works, services) specified in Article 161 of this Code, the amount of tax payable to the budget is calculated and paid in full by the tax agents specified in Article 161 of this Code, unless otherwise provided by paragraph 4-1 of this Article. (As amended by Federal Law of December 29, 2000 N 166-FZ - Collection of Legislation of the Russian Federation, 2001, N 1, Article 18; Federal Law of July 22, 2005 N 119-FZ - Collection of Legislation of the Russian Federation, 2005 , N 30, article 3130; Federal Law of November 27, 2017 N 335-FZ - Collection of Legislation of the Russian Federation, 2017, N 49, article 7307).

4-1. The amount of tax payable to the budget by the tax agents specified in paragraph 8 of Article 161 of this Code is determined at the end of each tax period as the total amount of tax calculated in accordance with paragraph 3-1 of Article 166 of this Code in relation to the goods specified in paragraph 8 of Article 161 of this Code, increased by the amounts of tax restored in accordance with subparagraphs 3 and 4 of paragraph 3 of Article 170 of this Code, and reduced by the amounts of tax deductions provided for in paragraphs 3, 5, 8, 12 and 13 of Article 171 of this Code in terms of operations carried out by these tax agents, taking into account the specifics provided for in paragraph 3 of Article 172 of this Code (paragraph 4-1 was introduced by Federal Law No. 335-FZ of November 27, 2017 - Collection of Legislation of the Russian Federation, 2017, No. 49, Article 7307).

5. The amount of tax payable to the budget is calculated by the following persons in the event that they issue an invoice to the buyer with the allocation of the amount of tax 22, article 2026):

1) persons who are not taxpayers or taxpayers exempted from the performance of taxpayer duties related to the calculation and payment of tax article 2026);

2) taxpayers in the sale of goods (works, services), transactions for the sale of which are not subject to taxation .

In this case, the amount of tax payable to the budget is determined as the amount of tax indicated in the corresponding invoice transferred to the buyer of goods (works, services).

6. When a taxpayer transfers to special tax regimes or when a taxpayer begins to use the right to exemption provided for in Article 145 of this Code, the tax amounts calculated upon release of goods in accordance with the customs procedure for release for internal consumption upon completion of the customs procedure of a free customs zone in the territory of the Special Economic Zone in the Kaliningrad Region, are payable in the manner prescribed by paragraph one of clause 1 of Article 174 of this Code, for the tax period that falls on the last calendar day before the date of transition to special tax regimes, or for the tax period that falls on the last calendar the day prior to the start of the use by the taxpayer of the right to the exemption provided for in Article 145 of this Code, in respect of goods not used to carry out transactions recognized as objects of taxation in accordance with this Chapter, without applying i exemption from the tax established by this chapter (clause 6 was introduced by Federal Law of March 30, 2016 N 72-FZ - Collection of Legislation of the Russian Federation, 2016, N 14, Art. 1902; in red. Federal Law of June 30, 2016 N 225-FZ - Collection of Legislation of the Russian Federation, 2016, N 27, Art. 4158).

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173 of the Tax Code of the Russian Federation, including taxpayers applying the simplified taxation system. Please explain the cases, procedure and consequences of the application of paragraph 5 of Article 173 of the Tax Code of the Russian Federation, including by taxpayers applying the simplified

Commentary on Art. 173 of the Tax Code

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