Recovering deleted files. Is it necessary to restore VAT upon termination of the activities of an individual entrepreneur on the basis? Is it necessary to restore

Question from a readerClerk.Ru Nadezhda (Moscow)

Good afternoon During the inventory, a shortage was identified. The perpetrators have not been identified. Is it necessary to restore VAT when writing off inventory? Thank you in advance!

According to the official position of the Ministry of Finance, VAT is subject to restoration if the purchased goods (work, services) are no longer used in activities subject to VAT.

For example, the Letter of the Ministry of Finance of the Russian Federation dated July 20, 2009 No. 03-03-06/1/480 explains that when property is disposed of for reasons related, for example, to shortages, the amounts of VAT previously accepted for deduction are subject to restoration and payment to the budget.

The Letter of the Ministry of Finance of the Russian Federation dated August 14, 2007 No. 03-07-15/120 explains that if the perpetrators are not identified, then upon disposal of property due to loss, damage, battle, theft, natural disaster and other similar reasons, the amounts of VAT previously accepted for deduction are restored in the tax period in which the missing property is deregistered; for depreciable property, VAT amounts are subject to restoration in the amount proportional to the residual (book) value of the property without taking into account revaluation.

Please note: when writing off inventory items, for example, due to theft, further use of inventory items for any operations is not expected, since the inventory items data is not available and they cease to be used at all. The list of cases of VAT restoration is established in clause 3 of Art. 170 Tax Code of the Russian Federation. This list is closed. Such a basis as a shortage identified during the inventory, among the cases listed in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, does not apply.

In the Decision of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 No. 10652/06), the court indicated that Article 170 of the Tax Code of the Russian Federation does not provide for the restoration of VAT previously accepted for deduction in the event of a shortage of goods identified during inventory.

There are numerous court decisions supporting this point of view. For example, in the Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 29, 2009 No. F17-2257/2008-05-21, the court indicated that Article 170 of the Tax Code of the Russian Federation does not provide for the obligation to restore and pay VAT on inventory items that are not used in activities subject to VAT due to shortage.

In the Resolution of the Federal Antimonopoly Service of the North-Western District dated September 15, 2009 in case No. A56-6495/2009, the court explains that in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation provides circumstances in which the taxpayer has an obligation to restore, when making settlements with the budget, the amounts of VAT previously accepted for deduction.

The disposal of inventory items as a result of a shortage does not change the purpose of their acquisition. Established in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, the list of grounds for VAT restoration is exhaustive. It does not contain such a basis for recovery as writing off inventory items as a result of a shortage.

Thus, the Tax Code of the Russian Federation does not provide for the taxpayer’s obligation to restore the amounts of VAT previously legally accepted for deduction when writing off inventory items as a result of a shortage.
Based on the above, I believe that there is no need to restore VAT in this case.

It’s very easy to get personal advice on any tax online - you just need to fill out . Every day two or three of the most interesting questions will be selected, the answers to which you can read in Natalia Lobanova’s consultations.

Is it necessary to restore the VAT deduction if...

...the company wrote off an unamortized fixed asset?

It is safer to restore VAT.

The tax deduction applies only if the property is used in transactions subject to VAT. The company ceases to use the written-off assets altogether. Therefore, according to officials, the “input” VAT should be restored (letter of the Ministry of Finance of Russia dated January 29, 2009 No. 03-07-11/22).

The list of situations in which a company must restore the “input” tax is closed. For example, the property was transferred to the authorized capital of another company or the goods began to be used in transactions not subject to VAT (clause 3 of Article 170 of the Tax Code of the Russian Federation). The situation when property ceases to be used in principle is not mentioned in the Tax Code of the Russian Federation. Therefore, VAT on the residual value of the written-off property may not be restored. However, it is not possible to convince inspectors of this in pre-trial proceedings.

…was the property lost as a result of theft (fire, etc.)?

Inspectors will demand that VAT be restored. After all, the property was not used by the organization in transactions subject to VAT (letter of the Ministry of Finance of Russia dated May 15, 2008 No. 03-07-11/194).

In fact, due to the loss of property, the original purpose for which it was acquired does not change (this is any use of the asset in transactions subject to VAT). Therefore, the company has no reason to restore VAT.

…fixed assets are sold below their residual value?

There is no need to reinstate the tax. After all, regardless of the prices at which property is sold, sales are subject to VAT. And the “input” tax on fixed assets used for VAT-taxable transactions is accepted for deduction.

...a building older than 15 years was transferred to the authorized capital?

The tax must be restored regardless of the period during which the company operated the property.

In this case, it would be a mistake to rely on the rule of paragraph four of paragraph 6 of Article 171 of the Tax Code of the Russian Federation. After all, this benefit is provided for companies that use real estate in VAT-free transactions, named in paragraph 2 of Article 170 of the Tax Code of the Russian Federation. For example, in order to manufacture products on the sale of which VAT is not paid. But, having transferred the objects to the authorized capital, the company not only ceases to use it, but is no longer the owner of the property.

…failed to sell defective products?

Officials believe that defective products are not used in transactions subject to VAT. Therefore, it is safer to restore VAT.

In reality, an organization must restore a tax deduction only in cases expressly specified in paragraph 3 of Article 170 of the Tax Code of the Russian Federation. The production of defective products is not mentioned in this paragraph.

Additional consultations on the topic

Explanations on other issues related to the restoration of VAT are given in the BSS “Glavbukh System”. Readers of the Glavbukh magazine from March 23 to April 22 can use an expanded package of recommendations on this topic for free. To do this, you need to go to the BSS website “GlavAccounting System”. Next, you need to enter your username and password (if you already have them) or register and log into the System. And finally, select the link to the special package “VAT: restoring the deduction” (access to the recommendations is free under the Federal Business Support Program).

Data recovery is the process of searching and returning (reanimating) found files.

Android data recovery

Lost valuable files on your phone? Let's figure out the problem and recover data via a card reader on an SD card or find contacts, photos and videos in the internal memory of a mobile device.

In this section, we will talk about recovering files (we will evaluate the chances of whether they can be recovered at all) and select a suitable recovery program for searching for lost data. Data seemingly deleted permanently? However, there are tools - paid and free programs - that allow you to bring data back to life, reconstruct it, and resuscitate it after scanning and analyzing a hard drive or other storage source.

What is file recovery?

File recovery- not always a predictable procedure when scanning files and subsequent reconstruction. The success of recovery will depend on the state of the data blocks of the deleted files - in other words, the degree of damage.

Hetman Partition Recovery is one of the best file recovery programs

Often, the information located in the depths of your computer can cost tens of times more than the PC or HDD itself. No one wants to suddenly lose what they have accumulated over the years: just a valuable file, gigabytes of music and films, electronic correspondence, collections of articles or news on any topic, or an archive of family photos. Of course, you wouldn't wish this on anyone. But if any of the above nightmares have happened, you still shouldn’t despair. Deleted files and even information from a formatted hard drive can be recovered. The data is not lost irretrievably.

The fact is that when deleted, the file does not disappear forever, but is only marked as “available for overwriting.” Therefore, it is advisable not to access the disk where the information was erased at all when starting the difficult recovery process.

File systems such as FAT, NTFS (that is, windows-like) store files in special data blocks. These blocks are called clusters. The size of a cluster, or block, depends on a constant number of sectors defined during formatting. In general, most operating systems (including Windows, Linux, Mac OS) store information that is optimally useful for performing fragmentation. The time it takes to write and read files is extremely important, so it is advisable to fragment the hard drive at a minimum level so that file recovery is as efficient as possible later.

Searching for one or more files of various types on the HDD will take some time. After this, as a rule, its name may not match the deleted one. Moreover, part of the file may be missing altogether (for example, if some information was written over it). There are many nuances, and there are also many solutions. Therefore, we advise you to study this section very carefully and select programs at your discretion.

If we compare, say, methods of recovering files from a hard drive and its data after a failure and simply restoring information from a disk or flash drive, the situation is not so dire: we still have the opportunity to recover lost data, at least part of it. Moreover, there are many specialized programs that simplify the task and take on all return responsibilities.

If the information you want to recover is on a CD, then before starting the procedure it would be worth checking how damaged it is. You will not get any practical benefit from this, but at least you will find out how “used” the physical surface of the disk is and what are the chances of recovering the file, lost data, and recovery guarantees.

Important: You can significantly increase your chances of recovering your files by minimizing your computer usage and data reading. This way you will reduce the risk of the file being overwritten. See mine for more information, as well as answers to frequently asked questions on the topic of "recovery."

Answers to readers' questions

This is the situation, the laptop is old, after the update it became dull and did not show the C drive, on which all the photos were. My husband took it to the “specialists” who couldn’t do anything, formatted the laptop and installed Windows 7, and did nothing else with the laptop. Tell me, is it possible to recover files after formatting? I don’t even need all the photos, just the children. You have an article on your website, it says that it seems like it’s possible to restore it. Really looking forward to the answer!

Answer. If those same specialists reinstalled the operating system and, even worse, formatted the disk where the photos were stored, then the chances of recovery after formatting were significantly reduced. However, we will give some tips that may help you solve the problem.

If you downloaded photos from a specific source (for example, from a phone, camera, memory card, etc.), it makes sense to look for them there. If they are no longer there, try to restore the files exactly at the source.

The second piece of advice is that despite the worsening situation with deleted files, try using various software for photo recovery - for example, PhotoRec or Recuva.

"Russian Tax Courier", 2011, N 22

What is the essence of the question? In paragraph 3 of Art. 170 of the Tax Code of the Russian Federation lists several situations in which VAT, previously legally accepted for deduction, must be restored. Is this list exhaustive?

How to avoid a controversial situation? In case of car theft, theft, confiscation or loss of property under circumstances not mentioned in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, VAT is still safer to restore.

Topic for discussion

Fixed assets, goods or other property of any company may be stolen or rendered unusable due to fire or natural disaster. Let’s say that before this incident, such assets were used in transactions subject to VAT, and the organization accepted the “input” tax on them for deduction. Is she obliged to restore VAT in the period in which she lost the property?

The list of cases when a taxpayer must restore the amount of “input” VAT that was previously legally accepted for deduction is given in paragraph 3 of Art. 170 Tax Code of the Russian Federation. Since October 1, 2011 this list has been expanded<1>. However, most experts still consider this list to be exhaustive.

<1>These and other changes in the calculation of VAT were described in more detail in the article “Analysis of recent changes in VAT: adjustment invoices and amount differences” // RNA, 2011, No. 15, p. 22.

In their opinion, in situations not mentioned in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, taxpayers are not required to restore VAT. For example, this paragraph does not include theft of a car, theft or confiscation of other property, the expiration of food products, or damage to property as a result of a fire or natural disaster. It turns out that the obligation to restore and additionally pay VAT in the listed situations according to the norms of Chapter. 21 of the Tax Code of the Russian Federation is not provided for.

Nevertheless, the Russian Ministry of Finance and local tax authorities continue to insist that VAT in such cases still needs to be restored. In justifying their position, they refer to paragraphs. 2 p. 3 art. 170 Tax Code of the Russian Federation. It states that VAT on purchased goods, works or services must be restored if these goods, works or services are no longer used in transactions subject to VAT.

The Ministry of Finance of Russia and tax authorities are trying to bring any situation under this basis, including theft, damage, shortage of property, liquidation of fixed assets before the expiration of their useful life, loss of property as a result of a fire, flood, earthquake or other natural disaster. But do they have the right to do this?

For clarification, we turned directly to representatives of the Russian Ministry of Finance and tax authorities, as well as tax consultants. As one might expect, experts' opinions were divided.

The Ministry of Finance is convinced that VAT needs to be restored even in cases not specified in the Tax Code of the Russian Federation

According to Elena Nikolaevna Vikhlyaeva, adviser to the indirect taxes department of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia, VAT on property stolen or lost under other circumstances must be restored for payment and transferred to the budget.

The fact is that the taxpayer has the right to deduct the VAT amounts presented to the taxpayer when purchasing goods only if he intends to use the purchased goods to carry out transactions subject to this tax (clause 1, clause 2, article 171 of the Tax Code of the Russian Federation).

Disposal of property for reasons not related to sale or gratuitous transfer, for example, its loss as a result of theft, is not subject to VAT. This follows from the provisions of Art. Art. 39 and 146 of the Tax Code of the Russian Federation.

Thus, the company is obliged to restore the VAT amounts legally accepted for deduction when registering property that was subsequently lost. This must be done in the tax period in which the organization wrote off such assets from accounting.

When it comes to loss depreciable property, for example, about the theft of a car, then not the entire amount of VAT previously accepted for deduction is subject to recovery, but only proportional to the residual value of the fixed asset without taking into account revaluation.

A representative of the tax authorities believes that if property is lost, the taxpayer is not obliged to restore VAT

Svetlana Vasilievna Sergeeva, 3rd class adviser to the state civil service of the Russian Federation, tax consultant, believes that in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation contains a closed list of cases when VAT accepted for deduction is subject to restoration.

Situations with the destruction of inventory items as a result of theft, fire, confiscation and other similar circumstances are not included in this paragraph. This means that the taxpayer is not obliged to restore VAT in the event of the theft of a car that belonged to him, theft or confiscation of goods, or the result of a fire or natural disaster rendering it in a condition unsuitable for further use.

The correctness of this conclusion is confirmed by numerous examples from arbitration practice (Decision of the Supreme Arbitration Court of the Russian Federation dated 05.19.2011 N 3943/11, Resolutions of the FAS Povolzhsky dated 05.10.2011 in case N A55-17395/2010, North Caucasus dated 02.21.2011 in case N A63- 13595/2009 and Moscow dated November 16, 2010 N KA-A40/13770-10 districts).

Expert one: VAT in case of loss of property is safer to restore

This opinion is shared by Dmitry Yurievich Ezhek, general director of the audit consulting company YUKON/experts and consultants. Despite the fact that in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation provides a closed list of situations in which VAT needs to be restored; tax authorities interpret this point more broadly. They demand that the tax be restored on both stolen and deteriorated objects.

When property is disposed of due to theft, hijacking, confiscation or due to fire, one cannot speak of its sale or gratuitous transfer. This follows from the definition of the term “implementation” given in paragraph 1 of Art. 39 Tax Code of the Russian Federation. In these cases, the transfer of property for one’s own needs does not occur. Consequently, the disposal of property in the listed situations is not recognized as subject to VAT in accordance with paragraph 1 of Art. 146 of the Tax Code of the Russian Federation.

It would seem that since the lost assets have ceased to be used in transactions subject to VAT, the tax that was legally accepted for deduction upon their acquisition should be restored. However, in the event of theft, confiscation or destruction of goods during a fire or natural disaster, in principle, it is impossible to talk about its further use in any operations. After all, the organization simply does not have this property. Directly, force majeure situations in Art. 170 of the Tax Code of the Russian Federation are not mentioned.

Thus, an organization has the right not to restore VAT on property that was subsequently stolen from it or became unusable due to emergency circumstances. However, in this case, she is unlikely to be able to avoid claims from the tax authorities. Most likely, the company will have to defend its interests in arbitration court.

There is already extensive judicial practice on this issue. And in most of the disputes considered, the courts supported the taxpayers. Here are some examples of judicial acts - Decision of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 N 10652/06, Resolutions of the FAS Povolzhsky dated May 10, 2011 in case No. A55-17395/2010, North Caucasus dated July 31, 2009 in case No. A53-426/2009 and Moscow dated April 2, 2009 N KA-A41/2501-09 districts.

Nevertheless, the Russian Ministry of Finance continues to insist on the need to restore VAT in such cases (Letters dated 06/07/2011 N 03-03-06/1/332, dated 05/15/2008 N 03-07-11/194 and dated 01/11/2007 N 03 -07-15/175). According to experts from this department, the tax should be restored in the tax period in which the missing goods are deregistered. For goods - the entire amount of VAT, for fixed assets - in proportion to the residual value of the object as of the date of its theft or loss.

The organization can take into account the restored amount of VAT when calculating income tax. She has the right to include this amount in other expenses associated with production and sales, in accordance with Art. 264 of the Tax Code of the Russian Federation (clause 2, clause 3, article 170 of the Tax Code of the Russian Federation). Similar explanations are given in Letter of the Ministry of Finance of Russia dated July 20, 2009 N 03-03-06/1/480.

Expert second: the list of situations in the Tax Code of the Russian Federation is exhaustive, therefore, if property is lost, VAT may not be restored

Denis Vladimirovich Khramkin, tax manager at Deloitte, also believes that clause 3 of Art. 170 of the Tax Code of the Russian Federation establishes an exhaustive list of cases in the event of which the taxpayer is obliged to restore VAT, previously legally accepted by him for deduction on goods, work, services, fixed assets, intangible assets or property rights.

The Tax Code connects the occurrence of the obligation to restore VAT with the fact of carrying out only those operations that are specified in paragraph 3 of Art. 170 Tax Code of the Russian Federation. However, the disposal of property as a result of its theft, destruction or confiscation does not apply to the operations listed in this paragraph.

Moreover, as a result of the theft of a car, theft or confiscation of goods, or their destruction in a fire, the lost property ceases to be used in the taxpayer’s business activities. Therefore, he has no obligation to restore VAT on such property.

The majority of arbitration courts come to similar conclusions (Decision of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 N 10652/06, Resolutions of the FAS West Siberian dated June 14, 2011 in case No. A03-7972/2010, Povolzhsky dated May 10, 2011 in case No. A55-17395/ 2010, North Caucasian from 03/26/2009 in case N A32-2476/2008-45/42 and Central from 06/11/2008 in case N A09-8521/2007-3 districts).

Editorial conclusions: the taxpayer will be able to defend his right not to restore VAT in the event of loss of property only in court

In paragraph 3 of Art. 170 of the Tax Code of the Russian Federation is given exhaustive a list of situations when a taxpayer is obliged to restore legally deductible VAT. After all, it does not contain the position “other” or “other situations” and does not indicate the words “including” or “in particular”.

Cases of theft and loss of assets due to fire, natural disaster or other emergency circumstances are not mentioned in this paragraph. Therefore, we can conclude that the norms of the Tax Code do not establish the taxpayer’s obligation to restore VAT in the event of the loss of a fixed asset, product or other asset that belonged to him.

In the same time Ministry of Finance of Russia holds a different point of view. For several years in a row, specialists from this department have been persistently pointing out that VAT in such situations needs to be restored to payment (Letters of the Ministry of Finance of Russia dated 07/04/2011 N 03-03-06/1/387, dated 05/19/2010 N 03-07-11/186, dated 20.07.2009 N 03-03-06/1/480, dated 15.05.2008 N 03-07-11/194 and dated 01.11.2007 N 03-07-15/175).

It is dangerous not to take into account the opinion of the main financial department on this issue. Moreover, local inspectors are required to be guided by written explanations of the Russian Ministry of Finance on the application of the legislation of the Russian Federation on taxes and fees (clause 5, clause 1, article 32 of the Tax Code of the Russian Federation). Which is what they do, at least on this controversial issue.

At the same time, the demands of tax authorities and the Russian Ministry of Finance to restore VAT on stolen or lost property are not based on the norms of the Tax Code of the Russian Federation. This is confirmed not only by numerous federal regulations arbitration courts various districts, but also two decisions of the Supreme Arbitration Court of the Russian Federation.

Back in 2006, the Supreme Arbitration Court of the Russian Federation indicated that theft or shortage of goods discovered during the inventory of property are not among the cases listed in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation (Decision dated October 23, 2006 N 10652/06). This means that the taxpayer is not obliged to restore VAT payable on such property.

In May 2011, the Supreme Arbitration Court of the Russian Federation noted that Art. 170 of the Tax Code of the Russian Federation does not provide for the restoration of VAT when writing off goods after their expiration date (Decision dated May 19, 2011 N 3943/11). Moreover, the Supreme Arbitration Court of the Russian Federation declared clause 4 of Letter of the Ministry of Finance of Russia dated 03/07/2007 N 03-07-15/29 invalid and not subject to application. This clause required taxpayers to restore VAT on goods with expired or expired dates.

Taking into account the established arbitration practice, the organization has a high chance of achieving justice in court and not recovering VAT on lost property. But before deciding whether to restore VAT or not, we recommend assessing the size of possible tax claims.

If the amount of tax that inspectors demand to be restored is insignificant, it is quite possible that it would be easier to pay it to the budget. Thus, the organization will save the time of its employees and funds that it would have to use to pay for the services of third-party tax lawyers.

E.V.Vaitman

Journal expert

"Russian tax courier"

The cost of purchased raw materials includes VAT. The VAT amount was accepted for deduction. These raw materials were used in the production of products that were subsequently destroyed by fire. In this situation, should the VAT amounts previously accepted for deduction be restored?

Having considered the issue, we came to the following conclusion:

The legislation does not oblige taxpayers to restore previously deductible VAT amounts on materials (raw materials) used in the production of products that were subsequently destroyed by fire.

The tax authorities and the Russian Ministry of Finance think differently: since the specified material assets are not used to carry out transactions recognized as objects of VAT, the tax amounts previously accepted for deduction are subject to restoration and payment to the budget.

Therefore, if an organization decides not to restore VAT, then, most likely, the organization will have to defend its position in court.

Rationale for the conclusion:

The grounds for VAT restoration are listed in paragraph 3 of Art. 170 Tax Code of the Russian Federation. It provides for only three cases when the amount of tax accepted for deduction is subject to restoration by the taxpayer:

Transfer of property, intangible assets and property rights as a contribution to the authorized (share) capital of business companies and partnerships or share contributions to mutual funds of cooperatives;

The use of goods (work, services), fixed assets and intangible assets, and property rights for carrying out operations for the production and (or) sale (as well as transfer, execution, provision for one’s own needs) of goods (work, services) not subject to taxation ( exempt from taxation); operations for the production and (or) sale of goods (works, services), the place of sale of which is not recognized as the territory of the Russian Federation; operations for the production and (or) sale of goods (work, services), the sale (transfer) of which is not recognized as sale in accordance with clause 2 of Art. 146 Tax Code of the Russian Federation; transfer of fixed assets, intangible assets and (or) other property, property rights to the legal successor(s) during the reorganization of legal entities; transfer of property to a participant in a simple partnership agreement (joint activity agreement) or his legal successor in the event of the separation of his share from the property that is in common ownership of the participants in the agreement, or the division of such property;

Transfer by the buyer of payment amounts, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

The given list is closed. Therefore, in cases that are not directly mentioned therein, VAT restoration is not required. In our opinion, this is exactly how paragraph 3 of Art. should be interpreted. 170 Tax Code of the Russian Federation.

Thus, since the Tax Code of the Russian Federation does not say about the need to restore VAT amounts previously legally accepted for deduction on materials (raw materials) used for the production of products that were destroyed as a result of a fire, we believe that there is no need to restore VAT amounts.

From the point of view of the Russian Ministry of Finance and tax authorities, today the norms of tax legislation require the restoration of VAT amounts previously accepted for deduction on property lost due to emergency circumstances. Let us draw your attention to the letter of the Ministry of Finance of Russia dated December 3, 2010 N 03-07-03/209. In it, the financial department explains that the draft federal law “On Amendments to Chapter 21 of Part Two of the Tax Code of the Russian Federation and some legislative acts of the Russian Federation on taxes and fees” prepared by the Ministry of Finance of Russia is currently under consideration by the Government of the Russian Federation. In accordance with this bill, paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, which provides for cases in which amounts of value added tax previously legally accepted for deduction are subject to restoration, is proposed to be supplemented with a number of operations, thus establishing a closed list of these cases.

The above once again confirms the position of the financial department, according to which today, without additions made to the Tax Code of the Russian Federation, the list cannot be considered closed.

Accordingly, financial and tax authorities insist that if the purchased goods (works, services) were ultimately not involved in activities subject to VAT, then they must be recovered.

Thus, the Ministry of Finance of Russia in a letter dated November 1, 2007 N 03-07-15/175 (brought to the attention of the tax authorities by letter of the Federal Tax Service of Russia dated November 20, 2007 N ШТ-6-03/899@) stated that VAT must be restored in all cases disposal of property, when this disposal is not related to sale or gratuitous transfer. To such cases, officials include disposal due to loss, damage, battle, theft, natural disaster, and more.

The same position on this issue is stated in the letter of the Ministry of Finance of Russia dated May 6, 2006 N 03-03-04/1/421. It says that since the disposal of goods in connection with a fire is not subject to VAT, such disposal should relate to the operations listed in Art. 170 of the Tax Code of the Russian Federation, and VAT should be restored.

Please note that the same letter states that, in accordance with paragraphs. 6 paragraph 2 art. 265 of the Tax Code of the Russian Federation, losses received must be attributed for profit tax purposes to non-operating expenses, including restored VAT, but only subject to documentary confirmation of the fact of a natural disaster and loss of property. At the same time, this clarification should be used with caution, since, for example, the letter of the Federal Tax Service for Moscow dated January 15, 2007 N 19-11/2462 states that it does not have the right to take into account as expenses when taxing profits the VAT restored for payment to the budget , previously accepted for deduction.

It should be borne in mind that local tax inspectors are guided in their work exclusively by the explanations of higher tax authorities. Accordingly, when conducting tax audits, inspectors may insist on the restoration and payment to the budget of VAT amounts on material assets intended for the production of products that were destroyed as a result of the fire.

The position of taxpayers who do not restore previously accepted VAT deductions in the event of loss of property due to fire, flood and other emergency circumstances has been supported by the courts.

When considering such disputes, the courts proceed from the fact that paragraph 3 of Art. 170 of the Tax Code of the Russian Federation provides an exhaustive list of cases when amounts of VAT accepted for deduction by the taxpayer on goods (work, services), including fixed assets, are subject to restoration.

It does not contain such a basis for restoration as the write-off and destruction of inventory items as a result of shortages, loss, fire, or damage.

Thus, the legislation on taxes and fees of the Russian Federation does not contain provisions obliging taxpayers to restore and pay to the budget the amounts of VAT accepted for tax deduction when purchasing goods (works, services), including fixed assets and intangible assets, in the event of their loss as a result of force majeure circumstances.

Such conclusions are set out in the decisions of the Federal Antimonopoly Service of the Moscow District dated April 2, 2009 N KA-A41/2501-09, the Volga District Federal Antimonopoly Service dated May 10, 2011 N F06-2876/11, and the Northwestern District Federal Antimonopoly Service dated September 3, 2009 N A56-5351/2009 , FAS of the West Siberian District dated May 27, 2009 N F04-3164/2009(7499-A27-34), FAS of the Volga-Vyatka District dated June 6, 2007 N A11-6204/2006-K2-18/388, etc.

In the resolution of the Federal Antimonopoly Service of the West Siberian District dated October 1, 2010 in case No. A27-1420/2010, the court came to a similar conclusion; in addition, it referred to the decision of the Supreme Arbitration Court of the Russian Federation dated October 23, 2006 No. 10652/06, which stated that the obligation to pay in the budget, the amount of value added tax previously legally accepted for credit must be provided for by law, meanwhile, the shortage of goods discovered during the inventory of property, or the theft of goods that took place, is among the cases listed in paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, does not apply.

Judges of the Supreme Arbitration Court of the Russian Federation have repeatedly made decisions in favor of the taxpayer, based on the fact that only in cases provided for by law, VAT amounts previously lawfully accepted for deduction should be restored (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 22, 2010 N 2196/10, determinations of the Supreme Arbitration Court of the Russian Federation RF dated 15.03.2011 N VAS-2416/11, dated 25.11.2010 N VAS-14097/10, dated 18.10.2010 N VAS-14097/10, dated 12.02.2009 N 1144/09).

Taking into account the above, we believe that until appropriate changes are made to the Tax Code of the Russian Federation, taxpayers have no obligation to restore VAT amounts in the event of loss of property in a fire.

However, the organization will have to make a decision on whether to restore (or not) VAT on its own, taking into account that the organization’s decision not to restore VAT may lead to a dispute with the tax authorities. In this case, you will most likely have to prove your case in court.

Considering the existence of numerous arbitration practices that are positive for taxpayers, if an organization decides not to restore VAT in the situation under consideration, the organization has a high chance of defending its position in court.

In conclusion, let us remind you that in the event of a natural disaster, fire or other emergency situations caused by extreme conditions, the organization is obliged to conduct an unscheduled inventory of property, during which the presence of property, its condition and assessment are checked and documented (clause 2 of article 12 of the Federal Law dated November 21, 1996 N 129-FZ “On Accounting”).

The procedure for conducting an inventory of property and financial obligations of an organization and recording its results is defined in the Methodological Instructions approved by Order of the Ministry of Finance of Russia dated 06/13/1995 N 49. The results of the inventory are documented in documents whose forms are approved by resolutions of the State Statistics Committee of Russia dated 08/18/1998 N 88 and dated 03/27/2000 N 26.

The Ministry of Finance of Russia in letter dated March 13, 2006 N 03-03-04/1/208 noted that for profit tax purposes, in order to be recognized as non-operating expenses that reduce income received, material losses from a fire must be documented (for example, a certificate from the State Fire Department services, documents recording the results of the inventory carried out in this regard and the amount of damage caused, etc.).

In addition, the organization must document that the causes of damage are objective circumstances.

In a letter dated January 16, 2006 N 03-03-04/1/18, specialists from the Ministry of Finance of Russia explained that the write-off of damage caused to an organization as a result of a fire is carried out on the basis of a certificate of closure of the criminal case, which documents the fact that there were no perpetrators.

The tax authorities share the same opinion (see, for example, letter of the Federal Tax Service of Russia for Moscow dated June 25, 2009 N 16-15/065190).

Prepared answer:
Expert of the Legal Consulting Service GARANT
Member of the Chamber of Tax Advisors Ananyeva Larisa

Response quality control:
Reviewer of the Legal Consulting Service GARANT
professional Myagkova Svetlana

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