Money back guarantee: VAT refundable. Bank guarantee for VAT refund Expedited VAT refund of bank guarantee

Article 176.1 of the Tax Code allows VAT payers to use the application procedure for its reimbursement. This “simplified” procedure has many positive aspects, the main one of which is the ability to quickly replenish your current assets and not lose business activity in the market. This explains its popularity.

At the same time, VAT payers who wish to reimburse VAT in this way are subject to a number of strict requirements. This situation is aggravated by the fact that in legislative norms the declarative procedure, like most innovations, is not sufficiently covered. As usual, gaps have to be filled in along the way, which has a negative impact on business.

Who can use the application procedure?

The first category includes large organizations whose total amount of taxes paid for the three previous calendar years is at least 10 billion rubles, and at the time of filing a tax return the company has existed for at least three years. This group stands apart, because such “giants” not only enjoy the support of the state, but are often created with its direct participation.

The second category includes all other taxpayers who, along with their tax return, submitted a valid bank guarantee. Since this right can be exercised by anyone, this category is of greatest interest.

Why do you need a bank guarantee?

To answer this question, it is necessary to analyze the principle of operation of the application procedure. It lies in the fact that the company can reimburse the amount of VAT from the budget even before the end of the desk audit, which lasts three months. That is, during this period, the money that the treasury owes the company does not “hang” between the budget and the company’s current account, but is returned there within two to three weeks.

Bank guarantees issued by bank branches are accepted by the Federal Tax Service as if they were issued by the bank itself, if they meet the requirements (letter of the Central Bank of the Russian Federation dated June 1, 2010 No. 04-15-7/2630).

To do this, the taxpayer must contact the inspectorate with an application for an “accelerated” VAT refund. If the formalities are met: the application is drawn up correctly, the bank guarantee is present and legal, etc., the Federal Tax Service will refund the tax to the current account or offset the amount for overpayment. The apparent simplicity does not mean at all that the validity of the deductions will also be checked formally: desk control will take place in the general manner, and it is not a fact that all VAT amounts declared for deduction will be confirmed. It is the tax service that must guarantee the return of excessively reimbursed money to the budget. This is what a bank guarantee is for.

A bank guarantee is understood as a written obligation of the bank to pay the beneficiary (creditor of the principal) at the request of another person (principal) a sum of money upon submission of a written request by the beneficiary. That is, it ensures in monetary form the proper fulfillment by the principal of his obligations under the obligations established between him and the beneficiary.

Thus, operations using a bank guarantee involve:

• beneficiary - the person in whose favor the payment is made, in our case this is the tax office
• principal - the main, main debtor in an obligation, that is, a company claiming a declarative tax refund procedure
• guarantor - a bank that ensures the principal fulfills its obligations properly.

In this case, banks that are included in a special list of credit institutions published on the official website of the Russian Ministry of Finance can act as guarantors. The following requirements apply to them:

• availability of a license to carry out banking operations and carry out activities for at least five years
• availability of the bank's own funds (capital) in the amount of at least 1 billion rubles
• compliance with mandatory standards provided for by Federal Law No. 86-FZ of July 10, 2002, for all reporting dates over the last six months
• absence of a requirement from the Central Bank of Russia to implement measures for the financial rehabilitation of the bank.

Requirements for a bank guarantee

In addition to the requirements for potential guarantors for accelerated VAT refunds, there are also mandatory requirements for the bank guarantee itself:

In subparagraph 2 of paragraph 2 of Article 176.1 of the Tax Code it is stated that “taxpayers” have the right to take advantage of accelerated tax refunds, which also means individual entrepreneurs.

• must be irrevocable and non-transferable
• cannot contain an indication that the tax authority submits documents to the bank that are not provided for in Article 176.1 of the Tax Code
• its validity must expire no earlier than eight months from the date of filing the tax return in which the amount of tax to be refunded is declared
• the amount for which it is issued must ensure the fulfillment of obligations to return to the budget in full the amount of tax claimed for reimbursement
• must allow the undisputed debiting of funds from the guarantor’s account in the event that he fails to comply within the established period with the requirement to pay the amount of money under the bank guarantee sent before the end of its validity period.

Warranty period

Of all the listed requirements, we will focus on one - the period of the bank guarantee, since it is this point that raises a number of questions related to the vagueness of the wording.

It is not clear what the legislators were guided by when establishing the minimum warranty period of eight months. After all, the period for a desk audit is only three months, after which the inspectorate will still have to make a decision whether to reimburse the tax from the budget or not. This may be explained by the fact that the guarantee should also be valid during the period of appealing the inspector’s decision to refuse compensation. Then why exactly during this period of time should the company incur additional costs for a bank guarantee, especially if it manages to prove the legality of VAT deductions?

In addition, the question remains: how to correctly indicate the period in the text of the bank guarantee itself? The wording “a bank guarantee is valid for eight months from the date of filing a tax return in which the amount of VAT to be reimbursed is declared” is unacceptable and does not give rise to a guarantee obligation. As a general rule, a bank guarantee comes into force from the date of its issue. According to Article 190 of the Civil Code, the period established by the transaction is determined by a calendar date or the expiration of a period of time in years, months, weeks, days or hours. It can also be defined by an indication of an event that must inevitably occur. Of course, companies are required to submit a VAT return, but the occurrence of this event cannot be considered inevitable, since it depends on the will of the company itself. That is, it is entirely possible for a situation in which the expiration date of the warranty cannot be determined. And this is a non-compliance with the requirements.

The refusal of controllers to refund VAT in the application form does not mean that it is impossible to apply for a refund in the general manner.

Another problem associated with the warranty period is its extension. If a company submits an updated VAT return and, along with it, an additional agreement with the bank to extend the period of a previously submitted guarantee, the inspector will most likely refuse to apply for a VAT refund. Usually this decision is motivated by the fact that changes cannot be made to the conditions for providing a bank guarantee. However, this position is not indisputable and in court a similar dispute was resolved in favor of the company. The arbitrators justified their decision as follows: since a bank guarantee is a unilateral transaction, the guarantor bank has the right to increase its obligations under such a transaction, including by concluding an additional agreement, which was drawn up by the bank by agreement with the principal organization (resolution of the Federal Antimonopoly Service of the East Siberian District dated September 8, 2011 No. A19-4801/2011).

The procedure for applying “expedited” compensation

In order to take advantage of the application procedure for VAT refund, you must send the appropriate one to the inspectorate within five days after filing the declaration. There is no approved form for this, so it is drawn up in free form. It must indicate the details of the bank account to which the amount of compensation should be received and state the company’s obligation, in case of failure to confirm the legality of the deductions, to return the money received back to the budget and pay interest if necessary.

Within five days after submitting the application, inspectors make a decision on tax refund or refusal. Tax officials have five more days to report their decision.

If at the time of reimbursement the company has arrears in taxes, fines or penalties, then before returning the money, controllers will decide to offset the overpayment of VAT against existing debts. This decision is made simultaneously with a positive decision on tax refund in an “accelerated” mode. In this case, only the balance of funds is subject to return after repayment of the debt to the budget.

Inspectors will send an order for a tax refund to the treasury on the next business day after the decision on the refund is made. The Treasury has five days to transfer funds. If these deadlines are violated, from the 12th day after filing the application, interest is accrued in favor of the company at the current refinancing rate on the amount of tax not returned on time.

The maximum amount of one and all simultaneously valid bank guarantees issued by the bank when applying the application procedure for VAT refund is not determined by law.

If a desk audit of the declaration reveals that the amount of VAT refunded in the application form exceeds that which should be refunded, the decision on the refund is cancelled. The company, within five days after receiving a request for a tax refund, is obliged to return (in whole or in part) to the budget the funds it received in the application form. In addition, the company will have to pay interest for the use of budget funds based on the double refinancing rate of the Central Bank of the Russian Federation in force at that time.

The formula for calculating interest is given in the letter of the Ministry of Finance of Russia dated April 5, 2010 No. 03-07-08/95 and is as follows. The amount of VAT to be refunded is multiplied by double the refinancing rate, divided by 365 (366) days and multiplied by the number of days of using budget funds. Moreover, if different refinancing rates were in effect during the period of using budget funds, interest is calculated separately for each rate, and the resulting values ​​are summed up. It is worth noting that the costs of paying these interests cannot be taken into account in expenses when calculating income tax.

The terms of the bank guarantee provide for the payment of tax for the client, which is credited to him in addition to the required VAT refund. Reimbursement is made according to the following principle:

• the amount of taxes paid by the client is returned to the account;
• the funds are counted against subsequent VAT payments.

The procedure for compensation has a preparatory stage and a process of consideration of the case. At the first stage, documentation is checked, which confirms the client’s right to compensation, documentation is prepared for court proceedings, and a tax return is drawn up.

The authenticity and correctness of all seals must be checked, which saves time in the future.

The bank guarantee necessarily provides for a refund of VAT payments. However, the client should first find out whether the bank is on the Ministry of Finance list for issuing guarantees. To conduct a case, you must contact a professional lawyer who accompanies the client at all stages of the procedure.

List of persons who are entitled to VAT refunds:

• taxpayers who pay an amount of taxes higher than specified in the laws on financial affairs;
• the right to compensation can be used if no more than 3 years have passed from the date of registration of the company;
• taxpayers who provide a declaration and a bank guarantee.

VAT refund procedure

Clients reimburse the funds that are wasted on VAT using credit funds. Therefore, the return of value added tax has been simplified. But a bank guarantee does not always imply such compensation. It must be irrevocable and non-transferable. The warranty period must be at least 8 months. In addition, the agreement must confirm that in case of failure to fulfill obligations, the entire amount is debited from the account of the guarantor bank.

If the bank guarantee is drawn up correctly, then the amount of the additional cost is returned within 14 days from the moment the application was submitted.

VAT calculation

Expedited refund option

The applicant, as the owner of the bank guarantee, after submitting the declaration, sends a request for a VAT refund within five days. If there is no clearly established form for such a request, then the paper is drawn up in free form. It is necessary to provide bank account details. It is to him that the refund funds will be transferred. After this, within five working days, the inspectors make a decision on the return of payments for the additional cost. The applicant will be notified of the official decision in writing.

If, at the time of filing the application, the company had arrears in tax payments or fines, then the VAT refund may go towards these debts. Such decisions are expedited and are made simultaneously with a positive response to compensation. Then only the balance of funds after covering the arrears is subject to return.

Tax refund orders are sent by the inspector the very next business day after a positive verdict is issued for the owner of the guarantee. The treasury has five days to transfer the required amount. If these deadlines are violated, then from the 12th day interest will be charged on the returned amount of taxes; the cost will be influenced by the refinancing rate. However, the law does not determine the maximum amount of one and all guarantees issued by the bank.

The decision to refund may be canceled if the amount of VAT exceeds the refunded amount. This decision concerns a desk audit. Then the company undertakes to return the funds to the budget, for which it is also given five days. The company also pays interest for the use of budget assets. For this purpose, a double refinancing rate is assigned for the current period.

Below is a video on the topic of the article on VAT :

Calculations for payments of returns on additional value

The amount of VAT that must be refunded is multiplied by double the refinancing rate. Then the resulting cost is divided by 365 days and multiplied by the number of days for which budget funds were used. If different refinancing rates were in effect during this period, then interest is accrued separately for each rate. The resulting values ​​are summed up and give the full amount of the return of funds to the budget. A firm or company cannot take such costs into account as an expense when calculating income tax, but are a separate cost item.

An additional problem regarding VAT refund may be clarification of the declaration or extension of the warranty period. Then the company may receive a refusal from the inspector. The decision is motivated in this case by the fact that the bank guarantee should not be subject to changes and adjustments.

Companies, when concluding a transaction with a counterparty, use a bank guarantee to protect themselves. Thus, when concluding supply contracts, one of the terms of the contract may be the requirement to provide a bank guarantee.

For providing a bank guarantee, the bank is paid a commission.

A bank guarantee is a convenient tool for clients, and for a credit institution, with proper risk assessment, it is a good source of income.

Accounting with the principal

Accounting

The cost of a bank guarantee includes the cost of the asset for the purpose of purchasing or creating which it was acquired:

D-t 76, K-t 51 - remuneration was transferred to the bank for issuing a guarantee; D-t 08, 10, 20, 41, etc., K-t 76 - a guarantee of payment under a contract or supply agreement was received from the bank.

This is a general rule for the formation of the cost of all goods and materials.

The provision of a bank guarantee relates to banking operations, and its cost is not subject to VAT (clause 8 of part 1 of article 5 of the Federal Law of December 2, 1990 No. 395-1 “On Banks and Banking Activities”, clause 3 of clause 3 Article 149 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia dated May 17, 2005 No. MM-6-03/404@). Consequently, VAT is not charged on the amount of the bank’s remuneration for issuing a guarantee to the organization.

Income tax

The costs of paying for bank services can be taken into account:

• as part of other expenses associated with production and sales (clause 25, clause 1, article 264 of the Tax Code of the Russian Federation);
• as part of non-operating expenses as costs of carrying out activities not directly related to production and (or) sales (clause 15, clause 1, article 265 of the Tax Code of the Russian Federation).

The organization has the right to independently determine which group it will include the costs of paying for the bank’s services to provide a bank guarantee (clause 4 of Article 252 of the Tax Code of the Russian Federation).

In any of the options, the date of expenditure is determined on the basis of clauses. 3 paragraph 7 art. 272 of the Tax Code of the Russian Federation.

Application of PBU 18/02

In the accounting records of the organization, there will be no expenses associated with the acquisition of a bank guarantee (since the bank guarantee will be included in the cost of the asset for the purpose of purchasing or creating which it was acquired). In this case, the cost of the bank guarantee will be written off in tax accounting.

In this regard, according to paragraphs. 12, 15 of the Accounting Regulations “Accounting for Income Tax Calculations of Organizations” (PBU 18/02), approved by Order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n, a taxable temporary difference (TDT) and a corresponding deferred difference arise in the accounting of an organization tax liability (TLO), which is reflected in the credit of account 77 “Deferred tax liabilities” in correspondence with the debit of account 68 “Calculations for taxes and fees”.

In accounting, the accrual of IT is reflected by an entry in the debit of account 68 and the credit of account 77 (Instructions for using the Chart of Accounts).

In accordance with clause 18 of PBU 18/02, as depreciation is accrued on a fixed asset or goods are sold or materials are written off as expenses, the resulting NVR and the corresponding IT are reduced, since the cost of goods sold, the cost of written-off materials or the amount of monthly depreciation charges will be recognized in accounting, but in tax accounting there will be no expenses.

Consequently, on the last day of each month IT decreases, which is reflected by an entry in the debit of account 77 and the credit of account 68 (Instructions for using the Chart of Accounts).

Purchasing a bank guarantee under a supply agreement

The organization takes into account goods purchased for resale in accordance with the provisions of Art. 320 Tax Code of the Russian Federation.

Since the receipt of a guarantee and, accordingly, the payment of remuneration to the bank are directly related to the purchase of goods, the organization has the right to include the amount of this remuneration in the cost of purchasing the specified goods. The cost of purchasing a product is a direct expense and forms the tax base for income tax during the period of sale of this product.

The organization must establish the procedure for forming the cost of purchasing goods in its accounting policy for tax purposes (paragraph 2 of Article 320 of the Tax Code of the Russian Federation).

Guarantees for long-term obligations

The remuneration for a transaction with a guarantor relates to the period for which the guarantee was issued (clause 1 of Article 378 of the Civil Code of the Russian Federation).

This period may cover more than one reporting (tax) period when the guarantee ensures the fulfillment of the principal's obligations under a long-term agreement aimed at generating income. At the same time, the connection between the warranty expense and the corresponding income of the principal company is indirect. The norm of paragraph 2, clause 1, art. is applicable to this situation. 272 of the Tax Code of the Russian Federation.

In the letter of the Ministry of Finance of Russia dated January 11, 2011 No. 03-03-06/1/4, a company carrying out the construction of oil and gas complex facilities under a contract for a period of two years appears as a principal.

Financiers indicated that expenses in the form of a fee for the provision of a bank guarantee purchased in order to ensure the fulfillment of obligations under the contract must be taken into account evenly over the period for which it is purchased (letter of the Ministry of Finance of Russia dated July 19, 2012 No. 03-03-06/ 4/75 and the Federal Tax Service of Russia dated June 4, 2013, No. ED-18-3/606).

Bank guarantee for a real estate lease agreement

If, for example, a bank guarantee was acquired by a trading company in order to ensure settlements under a real estate lease agreement, then in this case, regardless of the duration of the agreement, the costs of the guarantee in accounting should be written off as expenses at a time (D-t 44, K-t 76).

However, this amount must be distributed in tax accounting.

Example 1

The tenant provided the landlord with a bank guarantee for the obligation to pay rent on time for a period of five months. The remuneration to the bank amounted to 15,000 rubles. Three months later, due to the tenant-principal missing the payment deadline, the bank made payment to the beneficiary landlord. Thus, the guarantee is terminated (clause 1, clause 1, article 378 of the Civil Code of the Russian Federation).

In accounting, rental costs from the principal are charged monthly to account 26 “General business expenses.”

The remuneration for the bank guarantee should also be written off to the same account, but at a time: D-t 26, K-t 76 - 15,000 rubles. — a bank guarantee that does not form an asset is recognized.

In tax accounting, expenses for the guarantee (clause 25, clause 1, article 264 of the Tax Code of the Russian Federation) for the first three months should be recognized monthly in the amount of 3,000 rubles. (RUB 15,000: 5 months).

The unwritten part of the remuneration in the amount of 6,000 rubles. (RUB 15,000 - RUB 3,000 x 3 months) should be expensed to the principal at the time the guarantee expires.

Accounting with the beneficiary

Let us consider the features of reflecting in the accounting and tax accounting of the beneficiary of a bank guarantee to ensure the fulfillment of obligations under a supply agreement.

Accounting

In accordance with the Instructions for the application of the Chart of Accounts for accounting financial and economic activities of organizations, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 No. 94, the following accounts are used to summarize information on the availability and movement of bank guarantees: 008 “Securities for obligations and payments received” and 009 “Securities for obligations and payments issued.”

Account 008 reflects the guarantees received to ensure the fulfillment of obligations and payments, as well as security received for goods transferred to other organizations (individuals); account 009 reflects the guarantees issued to ensure the fulfillment of obligations and payments.

The amounts of collateral recorded in the listed accounts are written off as the debt is repaid, and analytical accounting is maintained for each collateral received and issued.

Due to the fact that the bank guarantee is issued by the guarantor and not by the principal, it should be reflected in off-balance sheet account 008 in the beneficiary’s accounting.

If the guarantee does not specify the amount, then for accounting purposes it is determined based on the terms of the contract.

In accordance with PBU 9/99 “Income of the organization”, at the time of transfer of ownership of the goods from the organization to the buyer, revenue is recognized in accounting and reflected in the credit of account 90 “Sales”, subaccount 1 “Revenue”.

At the same time, the conditions for recognition in accounting of expenses associated with the acquisition and sale of goods (PBU 10/99 “Expenses of the Organization”) are met, which are reflected in the debit of account 90 “Sales”, subaccount 2 “Cost of sales”.

Sales of goods on the territory of the Russian Federation are recognized as subject to VAT (Clause 1, Article 146 of the Tax Code of the Russian Federation). In this case, the moment of determining the tax base for VAT is the day of shipment (transfer) of the goods (clause 1 of Article 167 of the Tax Code of the Russian Federation).

The tax base for VAT when a taxpayer sells goods is determined as the cost of these goods, calculated on the basis of prices determined in accordance with Art. 105.3 of the Tax Code of the Russian Federation, taking into account excise taxes (for excisable goods) and without including tax (clause 1 of Article 154 of the Tax Code of the Russian Federation).

In accounting, VAT on the sale of goods is reflected in the debit of account 90 “Sales”, subaccount 3 “Value Added Tax”, and the credit of account 68 “Calculations for taxes and fees”, subaccount “Calculations for VAT”.

Income tax

In tax accounting, sales income is recognized as proceeds from the sale of goods, both self-produced and previously purchased (Article 249 of the Tax Code of the Russian Federation). In this case, income is recognized in the reporting (tax) period in which it occurred, regardless of the actual receipt of funds.

The date of receipt of income is the date of sale of goods, regardless of the actual receipt of funds in payment for them (Article 271 of the Tax Code of the Russian Federation).

Expenses accepted for tax purposes are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds and (or) other form of payment (Article 272 of the Tax Code of the Russian Federation).

In practice, there are two options for paying for supplied goods.

First option

The buyer independently fulfills the obligation to pay for goods in accordance with the supply agreement; in this case, the bank guarantee is written off.

Let's look at this option using an example.

Example 2

The LLC entered into an agreement for the supply of goods with an organization, according to which the LLC sells goods in the amount of 590,000 rubles, including VAT - 90,000 rubles.

The actual cost of the goods was 300,000 rubles. The organization provided a bank guarantee as security for the fulfillment of obligations to pay for the goods. The guarantee specifies an amount equal to the contract price of the goods.

Within the period established in the supply contract for payment for the goods, the organization transferred funds to the LLC in full.

In the accounting of the LLC on the day of sale of goods, the following entries must be made:

D-t 62, K-t 90.1 - 590,000 rub. — revenue from the sale of goods is reflected; D-t 90.2, K-t 41 - 400,000 rub. — the actual cost of goods sold is written off; D-t 90.3, K-t 68 VAT - 90,000 rub. — VAT is charged on the sale of goods; D-t 90.9 K-t 99 - 100,000 rub. — reflects the financial result of the operation; D-t 008 - 590,000 rub. — the receipt of a bank guarantee as fulfillment of obligations under the contract is reflected.

On the day of payment for goods, the following entries must be made in the LLC accounting:

D-t 51, K-t 62 - 590,000 rub. — funds have been received from the organization to pay for the goods; Kit 008 - 590,000 rub. — the bank guarantee is written off after fulfillment of obligations under the contract.

Second option

The buyer does not fulfill the obligation to pay for the goods, and the guarantor bank repays the debt to the beneficiary.

In this case, the beneficiary makes a demand to the guarantor bank to pay the amount of money under the bank guarantee.

In accounting, settlements with the guarantor can occur using account 76 “Settlements with various debtors and creditors.”

Repayment of the principal's obligations to pay for goods using a bank guarantee is reflected in the debit of account 76 and the credit of account 62 “Settlements with buyers and customers.”

Example 3

Let's use the condition of example 2 and assume that the organization has not fulfilled its obligation to pay for the goods within the period established by the supply contract.

The LLC presented the guarantor bank with a demand for payment of 590,000 rubles. under a bank guarantee. The guarantor satisfied this requirement.

The following entries must be made in LLC accounting:

D-t 51, K-t 76 - 590,000 rub. — funds were received from the guarantor bank after a claim was presented to it; D-t 76, K-t 62 - 590,000 rub. — the organization’s debt to pay for goods using a bank guarantee is written off; Kit 008 - 590,000 rub. — the bank guarantee has been written off.

Bank guarantee in the Civil Code of the Russian Federation

According to Art. 368 of the Civil Code of the Russian Federation, a bank guarantee is a method of ensuring the fulfillment of obligations in which a bank, other credit institution or insurance organization (guarantor) issues, at the request of the debtor (principal), a written obligation to pay the creditor (beneficiary) a sum of money when they present a demand for its payment.

Thus, at least three persons are involved in the relationship related to the issuance of a bank guarantee: the principal; beneficiary and guarantor.

The guarantor of a bank guarantee can only be a special entity that meets the requirements of the law, namely a bank, another credit institution or an insurance organization.

The principal is the debtor of the main obligation, at whose request the guarantor issues a bank guarantee. The principal can be any person.

The beneficiary is the creditor of the entrepreneur under the main obligation, in whose favor the guarantor issues a bank guarantee. In this case, the beneficiary is a creditor both under the bank guarantee and under the main obligation. The role of beneficiary can be any individual or legal entity, including government authorities, as well as tax and customs authorities.

In other words, the main purpose of providing a bank guarantee is to ensure the proper fulfillment by the principal of his obligations to the beneficiary (Part 1 of Article 369 of the Civil Code of the Russian Federation).

Moreover, in accordance with Part 2 of Art. 369 of the Civil Code of the Russian Federation, the issuance of a bank guarantee is a paid service of the guarantor bank, therefore a fee is charged for its issuance. As a rule, the amount of such remuneration is 1 - 10% of the security amount. It may be paid as a fixed payment or as a percentage of the guarantee amount in one lump sum or in installments depending on the duration of the guarantee.

Thus, a bank guarantee is a banking service. Accordingly, the cost of paying remuneration to the bank for issuing a bank guarantee is payment for banking services.

Securing a probable obligation

Note that a bank guarantee is a document issued by a bank and addressed to a specific creditor of the organization.

In this document, the bank undertakes to repay the company's possible debt to the creditor at his request under certain conditions. We are talking about paying the creditor a fixed, pre-agreed amount.

The peculiarity of this agreement is that at the time of issuing the bank guarantee, the company’s obligation itself does not yet exist, i.e. the creditor is a potential one. Moreover, in the future the debt may not arise.

Warranty or insurance?

Not only a bank, but also an insurance company can act as a guarantor, but the guarantee will still be called a bank guarantee. The payment itself under a bank guarantee resembles the payment made by the insurer upon the occurrence of an insured event.

This similarity is confirmed by an alternative: in some cases, the company, at its choice, can either provide the counterparty with a bank guarantee or insure its liability to it.

The difference between a guarantee and insurance is as follows.

The insurer does not have any claims against the policyholder in connection with the payment of insurance compensation (in the absence of intent).

The guarantor, who has paid for the principal's obligation, may make recourse claims against him when this is provided for by the agreement between them (clause 1 of Article 379 of the Civil Code of the Russian Federation).

Advantages of a bank guarantee

The main advantages of a bank guarantee are:

its relatively low cost, since the amount of remuneration to the guarantor bank for its provision is significantly lower than the amount of any type of debt financing; the ability to effectively resolve the issue of paying obligations without releasing funds from circulation or directly borrowing them from credit institutions.

In addition, the presence of a bank guarantee is an additional incentive to fulfill the obligation under the contract, that is, to supply goods, perform work or provide a service.

Agreement on the issuance of a bank guarantee

An analysis of the provisions of Chapter 23 of the Civil Code of the Russian Federation shows that it is not necessary to conclude a separate agreement between the principal and the guarantor.

However, those banks that want to more precisely define their relationship with the principal include such provisions either in their general conditions or sometimes in a special agreement, which may be called a bank guarantee agreement.

The agreement on the issuance of a bank guarantee may stipulate the following conditions: the rights and obligations of the bank and the principal, the terms for the provision of bank guarantees, the basic conditions under which such bank guarantees will be issued, provisions on commissions and remuneration of the bank, reimbursement of bank expenses, guarantees and assurances of the principal, necessary security for the contract, liability of the parties under the contract, applicable law, procedure for resolving disputes and other provisions.

Commentary to the Letter of the Ministry of Finance of Russia dated 04.07.2012 N 03-07-08/168 “On the absence of grounds for the tax authority to notify the bank of its exemption from obligations under the bank guarantee issued to the taxpayer for the purposes of applying the declarative procedure for VAT refund”

Banks issue guarantees to taxpayers for the application of the application form. The duty to notify banks of the exemption from obligations under this guarantee rests with the tax inspectorates. The Letter No. 03-07-08/168 dated July 4, 2012, published by the Ministry of Finance of Russia, states that the only reason for sending such a notification is the absence of any violations identified by the taxpayer based on the results of a desk audit of his declaration.

How the inspection releases the guarantor bank from obligations

The declarative procedure (Article 176.1 of the Tax Code of the Russian Federation), in contrast to the usual procedure (Article 176 of the Tax Code of the Russian Federation), provides for the reimbursement of VAT by the tax inspectorate to the taxpayer until the end of the desk audit of the relevant tax return, subject to certain conditions. Let us remind you that a desk audit is carried out by the inspectorate within three months from the date of submission of the declaration (clause 2 of article 88 of the Tax Code of the Russian Federation).
One of the conditions for early VAT refund is that the taxpayer, along with the tax return in which VAT is claimed for refund, provides a valid irrevocable bank guarantee. In this case, the bank guarantees payment to the budget on behalf of the taxpayer of the amounts of tax excessively received by him (credited to him) in a declarative manner, if, based on the results, the taxpayer is found to have violations and the early VAT refund is fully or partially canceled (clause 2, clause 2, article 176.1 Tax Code of the Russian Federation).

Such a bank guarantee provides the opportunity to apply the declarative procedure for VAT refund to taxpayers who are not classified as the largest, who do not need a bank guarantee provided that other conditions established by paragraphs are met. 1 item 2 art. 176.1 of the Tax Code of the Russian Federation for early VAT refund.

The inspectorate will only accept a guarantee from a bank included in a special list maintained by the Ministry of Finance. This list is subject to posting on the website of this ministry on the Internet (clause 4 of article 176.1 of the Tax Code of the Russian Federation).

Bank guarantees issued by branches of banks included in the list, on behalf of these banks, are accepted by tax inspectorates as bank guarantees issued by the banks themselves (Letter of the Bank of Russia dated 01.06.2010 N 04-15-7/2630, communicated to the inspections by Letter of the Federal Tax Service of Russia dated 15.06 .2010 N ShS-37-3/4049@).

From January 1, 2012, the taxpayer submits a bank guarantee to the inspectorate (if one is required) within the same time frame as the application for an “accelerated” VAT refund (clause 6.1 of Article 176.1 of the Tax Code of the Russian Federation).
If the VAT has already been refunded to the taxpayer by application and the desk audit was completed without any comments, then the tax inspectorate must, within seven days after the end of the desk tax audit, notify the taxpayer in writing about its completion and the absence of identified violations. And to the guarantor bank no later than the next day after sending the specified message to the taxpayer, the inspectorate sends a written application to release the bank from obligations under this bank guarantee (clause 12 of Article 176.1 of the Tax Code of the Russian Federation).

The commented Letter emphasizes that such a situation is the only reason for the tax inspectorate to send such a written application to the guarantor bank. In other cases, notification by inspectors of banks that issued bank guarantees to taxpayers for the purposes under consideration is not provided for by the norms of the Tax Code of the Russian Federation.

When a bank guarantee becomes useless

Tax authorities may refuse taxpayers a VAT refund on an application basis due to non-compliance with its conditions on formal grounds. This does not prevent, in the event of successful completion of the desk audit, the taxpayer being reimbursed for VAT in the usual manner established by Art. 176 of the Tax Code of the Russian Federation (clause 8 of Article 176.1 of the Tax Code of the Russian Federation).

The tax office may refuse early VAT refund, for example, if:

• the application is written incorrectly;
• the bank guarantee does not satisfy the conditions established by clause 6 of Art. 176 of the Tax Code of the Russian Federation, etc.

In the event of such a refusal, the bank guarantee becomes useless. But the Tax Code (Article 176.1 of the Tax Code of the Russian Federation) does not provide for the obligation of the tax inspectorate to notify the guarantor bank of exemption from obligations under such a guarantee.

Early reimbursement of VAT to the taxpayer does not affect the progress of the desk audit of his declaration, which proceeds as usual.

The amount of tax reimbursed to the taxpayer in a declarative manner may exceed the amount of tax subject to reimbursement based on the results of a desk tax audit. In this case, the tax inspectorate makes a decision to cancel the previous decision to reimburse the amount of tax (or to offset it against the taxpayer’s debts), as well as a decision to return (in whole or in part) this amount of tax as unlawfully presented for reimbursement (offset) (p 15 Article 176.1 of the Tax Code of the Russian Federation).

In addition, a decision is made to hold the taxpayer accountable for committing a tax offense or to refuse such prosecution (clause 14 of Article 176.1 of the Tax Code of the Russian Federation).

Simultaneously with the notification of the adoption of these decisions, the inspectorate sends to the taxpayer a request for the return to the budget of the amounts excessively received by him (credited to him) in a declarative manner.

In this case, a bank guarantee is a way to ensure that the taxpayer (principal) pays the specified amount of money to the tax authority (beneficiary). The guarantor bank undertakes to pay the tax instead of the principal upon submission by the beneficiary of a written demand for payment (Articles 368, 369 of the Civil Code of the Russian Federation).

The taxpayer is obliged to independently pay the amounts specified in the refund request within five days from the date of its receipt (Clause 20, Article 176.1 of the Tax Code of the Russian Federation). If he fulfills this condition, then the bank’s “insurance” may not be useful.

If the taxpayer has not paid, then the tax authorities, the next day after the deadline for satisfying the request sent to the taxpayer, send a request to the guarantor bank to pay for the taxpayer.

The guarantor bank has the right, by way of recourse, to require the taxpayer to reimburse the money paid to the tax authority under the bank guarantee (but not sanctions for violation by the bank itself of the requirements of Article 176.1 of the Tax Code of the Russian Federation). This right, as well as the amount to be reimbursed to the guarantor, are determined by his agreement with the principal, in pursuance of which the guarantee was issued (Article 379 of the Civil Code of the Russian Federation).

As already noted, the taxpayer who provided the bank guarantee may pay the excess VAT received in the application procedure, as well as penalties and fines. They are indicated in the request of the tax inspectorate, drawn up based on the results of a desk tax audit, during which violations were identified. In such a situation, as explained in the commented Letter, the tax inspectorate has no obligation to notify the bank of its release from obligations under the bank guarantee.

The guarantee was not useful, but you have to pay the money

The validity period of a bank guarantee issued for the purposes of applying the application procedure for VAT refund must expire no earlier than eight months from the date of filing the tax return in which the amount of tax to be refunded is declared (clause 3, clause 6, article 176.1 of the Tax Code of the Russian Federation).

The issuance of a bank guarantee is a banking operation (clause 8, part 1, article 5 of the Federal Law of December 2, 1990 N 395-1 “On Banks and Banking Activities”). For this operation, the guarantor bank is paid a fee (clause 2 of article 369 of the Civil Code of the Russian Federation). The cost of this service depends on a number of circumstances, including the duration of the guarantee, and averages from 1 to 10% of the guarantee amount.

The list of conditions for termination of a bank guarantee is established by Art. 378 Civil Code of the Russian Federation. These include:

• payment to the beneficiary (in this case, the tax office) of the amount for which the guarantee was issued;
• the end of the period specified in the guarantee for which it was issued;
• the beneficiary waives his rights under the guarantee and returns it to the guarantor;
• waiver by the beneficiary of his rights under the guarantee by written application for the release of the guarantor from his obligations.

Termination of the guarantor's obligation on the grounds specified in paragraphs. 1, 2 and 4 paragraphs 1 art. 378 of the Civil Code of the Russian Federation, does not depend on whether the guarantee is returned to him.

The guarantor, who becomes aware of the termination of the guarantee, must immediately notify the principal about this (Clause 2 of Article 378 of the Civil Code of the Russian Federation).

As we found out, in order not to pay too much, a taxpayer may be interested in shortening the validity period of a bank guarantee that has become useless in various situations. However, by virtue of the provisions of Art. 176.1 of the Tax Code of the Russian Federation, the tax inspectorate (beneficiary) is obliged to ensure the termination of the bank guarantee (send a written application to the guarantor bank to release it from obligations) only in one of the cases discussed above, namely if the desk audit of the VAT return is completed successfully.

Moreover, this obligation appeared for tax authorities only starting from January 1, 2012, thanks to amendments made to Art. 176.1 of the Tax Code of the Russian Federation Federal Law of July 19, 2011 N 245-FZ "On amendments to parts one and two of the Tax Code of the Russian Federation and certain legislative acts of the Russian Federation on taxes and fees."

This circumstance is emphasized in the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated September 1, 2011 N A32-34406/2010. In the situation considered by the court, it was expensive for the taxpayer to pay 2% of its amount per month for a bank guarantee until February 2011, since already in August 2010 the company received a message from the inspectorate about the successful completion of a desk tax audit of the declaration without any comments. The bank guarantee agreement established that the period for calculating interest (bank commission) may be interrupted if the guarantee is returned before its expiration. Therefore, the taxpayer asked the tax authorities to return the guarantee to the bank. But his request was denied. The court supported the tax authorities, citing the legislation in force during the disputed period.

Arbitration practice shows that it is possible to terminate the obligation under a bank guarantee even if the guarantee was not useful due to the taxpayer’s refusal to apply the application procedure.

The Resolution of the Federal Antimonopoly Service of the North-Western District dated May 16, 2011 N A52-3118/2010 considers the following dispute between a taxpayer and a bank with the tax inspectorate.

In order to fulfill the conditions for applying the application procedure for VAT refund, the taxpayer in July 2010 submitted to the inspectorate a bank guarantee valid until March 31, 2011. To secure the guarantee, the taxpayer pledged his property to the bank under a mortgage agreement.

The inspectorate decided to refuse to reimburse the taxpayer for the amount of VAT submitted for reimbursement in a declarative manner. He failed to challenge this decision in court. Then, in August 2010, the taxpayer asked the inspectorate to waive his rights under the bank guarantee by sending an application to the bank to release it from obligations under the issued bank guarantee, and also to return the original bank guarantee to the guarantor. The inspectorate refused this request.

The taxpayer applied to the bank for a refund of the commission paid to him for providing a bank guarantee and for the removal of the encumbrance on the pledged property. The bank also refused the taxpayer.

Then the taxpayer filed a lawsuit against the inspectorate requiring it to send a written application to the bank to release it from obligations under the bank guarantee.

The judges stated that the list of conditions for termination of a bank guarantee does not exclude the possibility of its termination according to the general rules for termination of obligations established by Chapter. 26 Civil Code of the Russian Federation.

According to Art. 417 of the Civil Code of the Russian Federation if, as a result of publication act of a government body fulfillment of the obligation becomes impossible in whole or in part, the obligation is terminated in whole or in the relevant part.

The beneficiary (inspectorate) cannot waive his rights under the bank guarantee at the request of the principal (taxpayer). At the same time, in connection with the inspectorate’s decision to refuse to apply the application procedure, a security legal relationship did not arise. This decision is an act of a government body, on the basis of which the obligation under the bank guarantee is terminated by virtue of clause 1 of Art. 417 of the Civil Code of the Russian Federation.

Thus, the district court refused to oblige the inspectorate to send the bank a written application to release it from obligations under the bank guarantee. However, according to the court, these obligations were terminated based on the decision of the tax authority to refuse the taxpayer to apply the application procedure.

Then the bank appealed to the Supreme Arbitration Court of the Russian Federation with an application to review this case in accordance with the supervisory procedure. In the Determination dated August 24, 2011 N VAS-11102/11, the senior arbitrators confirmed that the obligation under the bank guarantee was terminated due to the impossibility of fulfilling the obligation. Having refused to reimburse the company for VAT, the inspectorate did not take advantage of the bank guarantee; therefore, the requirement that the inspection be obliged to waive a right that did not arise for it is not based on the law. The bank was refused to transfer the case to the Presidium of the Supreme Arbitration Court of the Russian Federation.

Tax accounting

The procedure for tax accounting of expenses of a bank client and mirror accounting of bank income when providing a bank guarantee if the amount of the bank's commission is set as a percentage of the guarantee amount is a controversial issue.

Judicial practice on this issue has not yet been formed. And written explanations from officials can be contradictory.

Thus, in the Letter of the Ministry of Finance of Russia dated January 16, 2008 N 03-03-06/1/7, it is noted that the costs of paying for bank services related to production and (or) sales are included in other expenses (clause 25, clause 1, art. 264 of the Tax Code of the Russian Federation), and in other cases - for non-operating expenses (clause 15, clause 1, article 265 of the Tax Code of the Russian Federation).

If, under the terms of the agreement on the provision of a bank guarantee, the amount of the bank’s commission is set as a percentage of the amount of products supplied, then for profit tax purposes such expenses are equated to expenses in the form of interest on debt obligations. The specifics of taxation of these expenses are established by Art. 269 ​​of the Tax Code of the Russian Federation. Let us remind you that expenses in the form of interest on debt obligations are standardized.

A similar (in a mirror order) definition of bank income in the form of remuneration for issuing a guarantee in percentage per annum, taking into account the validity period of the guarantee and the guaranteed amount, is given in Letter of the Ministry of Finance of Russia dated July 24, 2008 N 03-03-06/2/92. Such income is accounted for as income in the form of interest on a debt obligation.

Later, letters were issued with a different interpretation of income and expenses under the bank guarantee agreement.

The Letter of the Ministry of Finance of Russia dated January 11, 2011 N 03-03-06/1/4 states that if a bank guarantee is paid for the first year in a lump sum, and for the second year quarterly, then Bank client expenses are taken into account evenly over the period for which the guarantee is purchased.

The conclusion about the equal distribution of expenses of the bank client in the form of a fee for the provision of a bank guarantee purchased in order to ensure the fulfillment of obligations under the agreement during the period for which the guarantee is purchased is also contained in the recent Letter of the Ministry of Finance of Russia dated July 19, 2012 N 03-03-06/ 4/75.

The Letter of financiers dated July 17, 2012 N 03-03-06/1/338 provides similar (in a mirror order) explanations about the bank’s tax accounting of its income from operations to provide a bank guarantee. Such income must be taken into account evenly during the validity period of the bank guarantee (service provision), regardless of the actual receipt of funds.

September 2012

V.V. Shinkarev,
Advisor to the State Civil Service of the Russian Federation, 2nd rank

V.V. Shinkarev

Federal Law of December 17, 2009 N 318-FZ V Tax Code of the Russian Federation added Art. 176.1 “Declarative procedure for tax refund”, which has been in effect for a year. According to its provisions, taxpayers have the right to receive the amount of VAT claimed for reimbursement without waiting for the end of a desk audit. Read this article about the problems they faced.

Large taxpayers in accordance with subparagraph. 1 clause 1 art. 176.1 of the Tax Code of the Russian Federation can receive a VAT refund from the budget based only on an application. In it, the taxpayer must reflect the obligation to return to the budget the tax amounts received (offset) in excess on the application basis (including interest), if the decision on reimbursement through the application procedure is canceled in whole or in part. However, only taxpayers who have paid more than 10 billion rubles to the budget over the previous three years can receive a refund based on an application. VAT, excise taxes, income tax and mineral extraction tax in aggregate (letter of the Ministry of Finance of Russia dated 04/29/2010 N 03-07-08/142, Federal Tax Service of Russia dated 07/23/2010 N AS-37-2/7390@).

In order to receive a refund from the budget before the end of the desk audit, other taxpayers, in addition to the application, must submit to the tax authority a bank guarantee designed to ensure the return to the budget of the funds received by the taxpayer in the application form if the decision on the “accelerated” refund is cancelled. According to paragraph 8 of Art. 176.1 of the Tax Code of the Russian Federation, the tax inspectorate, within five days from the date of filing an application for the application of the application procedure for tax refund, must verify the taxpayer’s compliance with the requirements provided for in paragraphs. 2, 4, 6 and 7 of this article. In addition, tax officials must make sure that the taxpayer has arrears of taxes, other taxes, arrears of penalties and (or) fines subject to payment or collection, and make a decision on reimbursement or refuse to reimburse the tax in a declarative manner, making an appropriate decision .

Documents for the application procedure for VAT refund

Based on the results of document checks, incl. bank guarantees submitted by taxpayers to the tax authorities, it is possible to draw conclusions about the main problematic issues and typical errors for applying the declarative procedure for VAT refund.

According to Art. 368 of the Civil Code of the Russian Federation, by virtue of a bank guarantee, the bank (guarantor) gives, at the request of another person - the principal (in the case under consideration - the taxpayer), a written obligation to pay the principal's creditor (beneficiary) in accordance with the terms of the obligation given by the guarantor a sum of money after the beneficiary submits a written request for it payment

The bank guarantee must be submitted simultaneously with the tax return, which declares the right to a tax refund (subclause 2, clause 2, article 176.1 of the Tax Code of the Russian Federation). According to Art. 373 of the Civil Code of the Russian Federation, a bank guarantee comes into force from the date of its issue, unless otherwise provided in it. Therefore, when checking a guarantee, it is necessary to pay attention to whether it contains additional conditions regarding the duration of its validity.

The bank that provided the guarantee must meet the five criteria established by clause 4 of Art. 176.1 Tax Code of the Russian Federation:

1) availability of a license for banking operations issued by the Central Bank of the Russian Federation and carrying out banking activities for at least five years;

2) the presence of a registered authorized capital of the bank in the amount of at least 500 million rubles;

3) the presence of the bank’s own funds (capital) in the amount of at least 1 billion rubles;

4) compliance with the mandatory standards provided for by Federal Law No. 86-FZ of July 10, 2002 “On the Central Bank of the Russian Federation (Bank of Russia)” for all reporting dates over the last six months;

5) the absence of a requirement from the Central Bank of the Russian Federation to implement measures for the financial rehabilitation of the bank on the basis of Federal Law dated February 25, 1999 N 40-FZ “On the insolvency (bankruptcy) of credit organizations.”

Information about which banks comply with the requirements of the Tax Code of the Russian Federation is posted on the website of the Ministry of Finance of Russia in the section “Tax and customs tariff policy”*1.
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*1 http://www1.minfin.ru/ru/tax_relations/policy.

The bank's compliance with the requirements specified in the Tax Code of the Russian Federation is verified by the Central Bank of the Russian Federation. If the bank does not meet the established criteria, the Central Bank, within five days from the date of discovery, sends information about this to the Russian Ministry of Finance.

Consequently, tax authorities have nothing to do with the inspection of banks themselves. For verification, only information posted on the website of the main financial department is used.

It should be noted: information about the bank’s compliance with the requirements of the Tax Code of the Russian Federation is checked at the time of making a decision on VAT refund in an application form. If, after the decision is made, the bank ceases to comply with the established requirements, this is not a basis for canceling the bank guarantee issued by it and for canceling the decision on VAT refund in a declarative manner.

Thus, when studying the documents submitted by the taxpayer to the tax authority, it is necessary to check whether the bank is included in the list posted on the website of the Ministry of Finance of Russia on the date of the decision on VAT refund in the application procedure.

In addition, paragraph 3 of Art. 176.1 of the Tax Code of the Russian Federation obliges the bank, no later than the business day following the day of issuance of the bank guarantee, to send to the tax authority at the place of registration of the taxpayer a notice of the fact of issuance of the bank guarantee. The procedure for such notification is determined by the federal executive body authorized for control and supervision in the field of taxes and fees, i.e. Federal Tax Service of Russia.

Checking the bank guarantee for compliance with legal norms

Tax authorities check the bank guarantee for compliance with legal norms.

The text of the bank guarantee must directly provide for the bank's obligation to pay to the budget on behalf of the taxpayer the amounts of tax excessively received by him (credited to him) as a result of tax refund in the application form, if the decision on VAT refund is canceled in whole or in part (in the cases provided for in Article 176.1 of the Tax Code RF).

According to sub. 1 clause 6 art. 176.1 the bank guarantee must be irrevocable. This means that the guarantee should not contain conditions providing for the right of the bank to revoke the issued guarantee. And this must be directly indicated in the text of the guarantee itself.

In accordance with sub. 1 clause 6 art. 176.1 of the Tax Code of the Russian Federation, a bank guarantee must be non-transferable.

Article 372 of the Civil Code of the Russian Federation provides that the right of claim against the guarantor belonging to the beneficiary under a bank guarantee cannot be transferred to another person, unless otherwise provided in the guarantee. The bank is unlikely to, on its own initiative, grant the beneficiary the right to transfer to other persons the rights to claim under the guarantee. The bank is also unlikely to be able to transfer its obligations under the guarantee to anyone without the consent of the beneficiary.

However, despite this, all the requirements established by the Tax Code of the Russian Federation must be met, therefore it is advisable to directly indicate the condition of the non-transferability of the bank guarantee in its text.

According to sub. 2 p. 2 art. 176.1 of the Tax Code of the Russian Federation, the person who will present the claim to the bank (guarantor) is the tax authority, and in the event of a legal dispute, the tax inspectorate will act in court as a party to the case. Therefore, the tax authority that makes the decision on VAT refund must be indicated as the beneficiary in the bank guarantee. Indicating as a beneficiary a branch of the Federal Treasury of the Russian Federation, the Ministry of Finance of Russia or the Russian Federation represented by these bodies seems erroneous.

In accordance with sub. 2 clause 6 art. 176.1, a bank guarantee cannot contain an indication that the tax authority will submit documents to the bank that are not provided for in this article. In addition, according to sub. 5 paragraph 6 art. 176.1, a bank guarantee must, without any additional conditions, allow the undisputed debiting of funds from the guarantor’s account in the event of his failure to comply within the established period with the requirement to pay the amount of money under the bank guarantee, sent before the end of its validity period.

Article 21 176.1 provides: the tax authority sends to the bank only a request for payment of a sum of money under a bank guarantee, indicating the amounts to be paid by the guarantor. The sending to the bank of any other documents of the Tax Code of the Russian Federation is not provided, as is the transfer or presentation to the bank of the original of the bank guarantee itself.

Bank guarantees, in which, as a condition for the bank’s fulfillment of the request for payment of funds, the obligation of the tax authorities to submit to the bank any additional documents in addition to the requirement in the form, approved. by order of the Federal Tax Service of Russia dated 06/07/2010 N ММВ-7-8/268@, do not comply with the provisions of Art. 176.1 Tax Code of the Russian Federation.

In the form of a request for payment of a sum of money under a bank guarantee, approved. Order of the Federal Tax Service of Russia N ММВ-7-8/268@ provides the following details:

Last name, first name and patronymic, position and class rank of the head of the tax authority, name of the tax authority (or full name);

INN/KPP and address of the taxpayer who did not comply with the request of the tax authority;

Date and number of the request not fulfilled by the taxpayer;

Amount to be paid;

Date and number of the bank guarantee;

Full name and BIC of the bank;

Account details (KBK and OKATO) for crediting funds;

The date after which, in the event of failure to comply with this requirement, the tax authority will exercise the right to indisputably collect the amounts. Submission to the bank of other information in the text of the request, Art. 176.1 of the Tax Code of the Russian Federation and the above order of the Federal Tax Service of Russia are not provided for.

Indication in the bank guarantee of the need to provide the bank (guarantor) with additional information, incl. related to the circumstances of the taxpayer’s violation of the legislation on taxes and fees or the description of the reasons for sending the claim to the bank (except for the information specified in the claim form approved by the Federal Tax Service of Russia), the calculation of the claimed amount, as well as references to the taxpayer’s application or his tax return does not comply with the law.

Consequently, the presence in bank guarantees that are not provided for by tax legislation, conditions for their execution or additional obligations of the beneficiary may be the basis for recognizing them as not complying with the requirements of the Tax Code of the Russian Federation and making a decision to refuse VAT reimbursement in a declarative manner.

According to sub. 3 paragraph 6 art. 176.1 of the Tax Code of the Russian Federation, the validity period of the bank guarantee must expire no earlier than eight months from the date of filing the tax return in which the amount of tax to be reimbursed is declared.

Indicating that a bank guarantee is valid for a longer period of time than established by law is not a violation.

The bank guarantee must specify the exact start and end dates of its validity, and not indicate an uncertain event or period.

According to sub. 4 paragraph 6 art. 176.1 of the Tax Code of the Russian Federation, the amount for which a bank guarantee is issued must ensure the fulfillment of obligations to return to the budget in full the amount of tax claimed for reimbursement.

The bank is obliged to issue a guarantee for the amount declared by the taxpayer for reimbursement from the budget in the tax return, even if the taxpayer does not have the right to apply the declarative procedure for the entire amount of VAT indicated in the return. In addition, the legislation does not provide for the provision of a bank guarantee for part of the amount claimed for reimbursement by one bank and for the other part - by another bank.

According to sub. 5 paragraph 6 art. 176.1 of the Tax Code of the Russian Federation, a bank guarantee must allow for the undisputed debiting of funds from the account of the guarantor (bank) in the event of his failure to comply within the established period with the requirement to pay the amount of money under the bank guarantee, sent before the end of its validity period.

Since the guarantee is issued on behalf of the bank as a legal entity (including cases when the guarantee is issued by a bank branch), in the author’s opinion, in the event of insufficient funds in the correspondent account of the branch, the tax authorities have the right to exercise the right to indisputably collect funds in relation to any of the accounts owned by the bank .

The Tax Code of the Russian Federation does not establish requirements for indicating jurisdiction in a bank guarantee (the name of the court in which the case will be heard in the event of a dispute related to the execution of the guarantee).

At the same time, according to Art. 35 of the Arbitration Procedural Code of the Russian Federation, a claim is brought to the arbitration court of a constituent entity of the Russian Federation at the location or place of residence of the defendant. In addition, paragraph 5 of Art. 36 of the Arbitration Procedure Code of the Russian Federation provides for the right to bring a claim arising from the activities of a branch or representative office located outside the location of the legal entity, either to the arbitration court at the location of the legal entity, or at the location of its branch or representative office.

Jurisdiction established by Art. 35 and 36 of the Arbitration Procedure Code of the Russian Federation, can be changed by agreement of the parties before the arbitration court accepts the application for its proceedings. Submission by the taxpayer to the tax authority of a guarantee drawn up by the bank, where a specific arbitration court is indicated, does not mean that the tax authority has expressed consent to change the jurisdiction established by Art. 35 and 36 of the Arbitration Procedure Code of the Russian Federation. According to the author’s recommendation, it is possible not to stipulate in bank guarantees the special jurisdiction of a dispute related to the provision of a bank guarantee.

Verification of the powers of persons who signed the bank guarantee

In addition to checking the compliance of the text of the guarantee with the provisions of tax and civil legislation, it is advisable to check the powers of the persons who signed it.

The right to sign contracts and other documents providing for the financial obligations of a business company belongs to the sole executive body of the legal entity, i.e. to the manager.

Tax authorities can obtain information about the person who was the head of the bank from the Unified State Register of Legal Entities on the date of signing the guarantee. The fact of appointment to the position of manager is confirmed by the minutes of meetings of the founders (shareholders, participants), and the order of appointment.

In addition, Art. 7 of the Federal Law of November 21, 1996 N 129-FZ “On Accounting” provides for the mandatory signature of the chief accountant on monetary and settlement documents, financial and credit obligations.

Since the bank guarantee provides for the bank's financial obligations, it must be signed by the bank's chief accountant to avoid possible litigation.

Bank guarantees issued to representative offices and branches

In a letter dated 01.06.2010 N 04-15-7/2630, which the Federal Tax Service of Russia brought to the attention of tax authorities and taxpayers in a letter dated 15.06.2010 N ShS-37-3/4049@, the Central Bank of the Russian Federation said: since legal entities are liable for their obligations with all their property, bank guarantees issued by branches of banks included in the list on behalf of these banks are accepted by the tax authorities as issued by the banks themselves.

At the same time, the Central Bank of the Russian Federation drew attention to the need to take into account the terms of reference of the person signing the bank guarantee on behalf of the bank.

Since, according to paragraph 3 of Art. 55 of the Civil Code of the Russian Federation, representative offices and branches must be indicated in the constituent documents of the legal entity that created them, and the heads of representative offices and branches are appointed by the legal entity and act on the basis of its power of attorney; when checking a guarantee, it must be taken into account that the constituent documents must indicate the bank branch that issued the guarantee .

A branch should not be confused with a separate division, since the term “separate division” is used only for tax registration purposes.

The branch usually acts on the basis of a regulation that specifies the types of transactions that it has the right to enter into.

The heads of representative offices and branches are appointed by the legal entity and act on the basis of its power of attorney. The power of attorney must contain:

Place and date of its execution (without this information, the power of attorney is considered void);

The period for which the power of attorney was issued. If this period is not specified (Article 186 of the Civil Code of the Russian Federation), it remains in force only for a year from the date of its commission. The total term of the power of attorney cannot exceed three years;

The name of the legal entity on whose behalf the power of attorney was issued, its Taxpayer Identification Number, location, surname, first name, patronymic of the head of the bank or other person authorized to sign the power of attorney and (in this case) the grounds for authority and details of documents confirming such authority;

Information about the representative - an individual (position, place of residence, passport details);

A list of actions that the head of the branch is authorized to perform (including the right to issue bank guarantees for the amount specified in the guarantee). Simultaneously with checking the bank guarantee documents, the tax authority in accordance with clause 8 of Art. 176.1 of the Tax Code of the Russian Federation must establish whether the taxpayer had arrears in taxes or arrears of penalties and (or) fines.

If, as a result of the audit, compliance with all legal requirements is established, after five working days the tax authority will make a decision to reimburse the amount of tax claimed for reimbursement in a declarative manner.

In case of refusal to reimburse the amount of tax claimed for reimbursement, in a declarative manner, taking into account that clause 2 of Art. 176 of the Tax Code of the Russian Federation provides for the simultaneous submission of a VAT return and a bank guarantee; the right to receive a VAT refund from the budget in an application form can be exercised after eliminating identified deficiencies and submitting a new (updated) tax return, simultaneously with which the bank guarantee will be submitted.