Reimbursement options. § b

The Russian Ministry of Finance clarified whether it is necessary to indicate transport services in the invoice for the shipment of goods if the supply agreement stipulates that the seller organizes the delivery of goods, and the buyer compensates him for the transportation costs incurred. At the same time, a number of important issues related to the calculation of VAT in such a situation remained “behind the scenes”.

What the Ministry of Finance said and did not say

According to paragraph 3 of Art. 168 of the Tax Code of the Russian Federation, an invoice is issued for the sale of goods (work, services) no later than five calendar days, counting from the day of shipment of goods (performance of work, provision of services). But if, under the terms of the supply agreement, the seller of goods undertakes to organize their delivery to the consignee, and the buyer - to reimburse the transport costs incurred by the seller, the seller does not carry out any sales of transport services, since they are provided by the carrier. In this regard, financiers came to the conclusion that the invoice issued by the seller for shipped goods does not indicate goods transportation services provided by the carrier.

In this case, where are the amounts of compensation received from the buyer for transportation costs reflected? Do I need to issue a separate invoice for them? Can the seller deduct VAT on an invoice issued by the carrier to him? There are no answers to these questions in the commented letter. But financiers have previously considered such issues.

VAT from the seller

In letter dated October 22, 2013 No. 03-07-09/44156, the Ministry of Finance of Russia indicated that the amount of reimbursement of transportation costs is related to payment for goods sold and therefore, on the basis of subclause. 2 p. 1 art. 162 of the Tax Code of the Russian Federation are subject to inclusion in the VAT tax base. At the same time, in accordance with clause 18 of the Rules for maintaining the sales book, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137 (hereinafter referred to as the Rules for maintaining the sales book), for the amount of reimbursement of transportation costs received from the buyer, the seller must draw up an invoice in one copy with VAT highlighted in it and register it in the sales book.

With regard to VAT on the invoice presented to the seller by the carrier, financiers noted that it is accepted by the seller for deduction in the generally established manner.

Buyer problems

The extreme buyer in this situation is the buyer. After all, he, compensating the seller for his costs of transporting goods in an amount that includes VAT, cannot deduct this tax, since no invoices are issued to him (letter of the Ministry of Finance of Russia dated 02/06/2013 No. 03-07-11 /2568). And even if the seller issues an invoice for transport services to the buyer, the buyer will have to defend the right to deduct VAT through the court.

Thus, the Federal Antimonopoly Service of the Ural District, in resolution dated May 25, 2009 No. F09-3324/09-S3, considered the situation when the company accepted for deduction of VAT on invoices issued by suppliers of goods for the provision of transport services. Since the suppliers of goods did not provide these services (transportation was carried out by JSC Russian Railways), the tax authorities refused to deduct the tax. The court found the company's actions lawful. He pointed out that the mere re-issuance of invoices to a company that is a VAT payer, in the presence of the fact of consumption of the relevant services, is not grounds for denial of the right to apply tax deductions for VAT.

And the FAS North Caucasus District, in a resolution dated May 19, 2009 in case No. A53-10110/2008-C5-46, noted that compensation to the supplier for the cost of delivering goods by rail is essentially not a payment for transport services, but part of the consideration under the supply agreement goods. Therefore, the buyer lawfully accepted for deduction of VAT on the invoice issued by the seller for the amount of compensation received for transportation costs incurred by him.

Agent scheme

Please note that there is an option for registering a relationship for reimbursement of transportation costs by the buyer, which allows the seller to avoid charging VAT on the amount of compensation received and relieves the buyer of problems with VAT deduction. To do this, you just need to write down in the supply contract (annex to the contract) the condition that the seller, when organizing the transportation of goods, acts on his own behalf on behalf of and in the interests of the buyer. Then the supply agreement will contain elements of an agency agreement (clause 3 of Article 421 of the Civil Code of the Russian Federation), and the relationship between the seller and the buyer in terms of transport services will be built according to an agency scheme.

In a letter dated March 21, 2013 No. 03-07-09/8906, the Russian Ministry of Finance explained that if, on the basis of an agency agreement, the seller, on his own behalf, purchases goods transportation services for the buyer, then VAT deductions by the buyer for transportation services are made on the basis of invoices, compiled by the seller. At the same time, according to sub. “c” clause 1 of the Rules for filling out an invoice, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137, when drawing up an invoice, the seller in line 2 of the invoice indicates the full or abbreviated name of the actual seller of services - the transport company.

Thus, under the agency scheme, the buyer has every right to deduct VAT on the invoice issued to him by the seller of goods, who performs the functions of an agent when providing transport services. But here you need to pay attention to two points.

Firstly, according to Art. 1006 of the Civil Code of the Russian Federation, remuneration under an agency agreement is mandatory. The Supreme Arbitration Court of the Russian Federation, in Ruling No. 13250/08 dated October 13, 2008, clarified that this rule is not dispositive and does not provide for cases when agency fees are not paid. Therefore, the parties must establish at least a symbolic amount of remuneration.

The seller's intermediary fee is included in the VAT tax base (clause 1 of Article 156 of the Tax Code of the Russian Federation). Accordingly, he issues an invoice to the buyer for this amount and registers it in his sales book (clause 20 of the Rules for maintaining a sales book).

Secondly, clause 3.1 of Article 169 of the Tax Code of the Russian Federation establishes the obligation to maintain a log of received and issued invoices in relation to activities carried out in the interests of another person on the basis of commission agreements and agency agreements. Therefore, the seller registers the invoice issued to the buyer for transport services in the journal of received and issued invoices (subparagraph “a” of clause 7 of the Rules for maintaining a journal of received and issued invoices, approved by Decree of the Government of the Russian Federation dated 26.12 .2011 No. 1137).

Rebilling shipping costs to the buyeroccurs when the transportation of goods to the buyer is carried out by agreement between the supplier and the transport company, and the buyer reimburses the transportation costs incurred. Read our article about how to re-invoice transportation costs to the buyer without tax risks.

How to correctly recharge transportation costs to the buyer?

Rebilling of transportation costs can be done in two ways:

• in the form of intermediary services;
• form of change in the value of goods.

Let's take a closer look at them.

Method 1. Intermediary services

This method of rebilling transportation costs is the most common, although it is quite labor-intensive in terms of its documentary maintenance.

1. Agreement

In the contract with the buyer, we fix a clause that we undertake on our own behalf to find a suitable carrier, enter into an agreement with him on the transportation of goods and monitor the implementation of this agreement until the goods are transferred to the buyer. That is, we indicate that we undertake the obligations of an intermediary between the buyer and the carrier organization. The main condition is to specify at least a symbolic amount of remuneration, since intermediary agreements must be compensated (Articles 990, 1005 of the Civil Code of the Russian Federation).

1. Source documents

For transport services, we provide the buyer with a bill of lading on our behalf, generated on the basis of primary documents from the carrier organization. Don't forget to attach a copy of the carrier's bill of lading to it.

For intermediary services, we present to the buyer a report from the intermediary indicating the amount of his remuneration (Article 999 of the Civil Code of the Russian Federation). We develop the report form independently with its mandatory approval in the accounting policy.

1. Invoice

We record the invoices received from the carrier organization in the journal of received and issued invoices (clause 1, subclause “a”, clause 11, section II, appendix 3 to the Decree of the Government of the Russian Federation “On filling out documents for VAT calculations” dated December 26, 2011 No. 1137).

For the buyer:

• we issue an invoice for transport services on our behalf and attach to it a copy of the invoice of the carrier organization (clause 1, subparagraph “a”, clause 7, section II, appendix 3 of the Decree of the Government of the Russian Federation “On filling out documents when making payments for VAT" dated December 26, 2011 No. 1137), registered in the invoice journal;
• We register the invoice for the brokerage fee in the sales book.

NOTE! When re-issuing an invoice for transport services, in lines 1 (date), 2, 2b, put the information of the carrier organization, not yours (subparagraphs “a”, “c”, paragraph 1, section II, appendix 1 to the resolution of December 26 .2011 No. 1137).

Read more about issuing invoices by intermediaries in our article .

Method 2. Changing the cost of the product

This type of re-invoicing of transport costs is not common in practice, but it is simpler in terms of documentation compared to the first.

1. Agreement

Clause 3 art. 485 of the Civil Code of the Russian Federation provides that in the sales contract it is possible to include a clause on changing the value of the goods upon the occurrence of certain circumstances. Alternatively, you can add a condition: if the delivery of the goods to the buyer is organized by the supplier, then the cost of the goods increases by the cost of transporting the goods to the buyer.

1. Source documents

At the time of transfer of the goods to the carrier organization, you will already have an agreement on the provision of transport services and an invoice for payment for these services. Using these documents, we determine the amount of transportation costs (including VAT) and add it to the cost of the goods shipped to the buyer. We indicate the amount received in the delivery note. If several types of goods are shipped, then we distribute transportation costs between them in equal shares.

You can familiarize yourself with the form of the delivery note in the article .

IMPORTANT! Do not include the cost of transport services as a separate line in the invoice. You do not provide services for the transportation of goods, therefore such a service should not be included in the invoices you issue.

If the cost of transport services changes after the buyer receives the invoice, adjustments are made to it in one of two ways:

• registration of a new adjusted invoice;
• making corrections to already completed 2 copies of the invoice: yours and the buyer’s.

Read about changes to primary documents in the material .

The invoice received from the carrier organization will be considered the basis for reflecting expenses associated with the sale of goods (subclause 1, clause 1, article 253 of the Tax Code of the Russian Federation).

1. Invoice

We issue an invoice for the amount indicated in the delivery note: the cost of the goods, increased by the cost of transport services. We record it in the sales book. If the cost of transport services included in the price of the goods changes, we generate an adjustment invoice for the amount of the increase (decrease) in transport costs (paragraph 3, clause 1, article 169 of the Tax Code of the Russian Federation). There is no need to correct the old invoice.

For an example of filling out adjustment invoices, see the article.

We register the invoice received from the carrier organization in the purchase book.

How to reflect the re-invoicing of transportation costs in transactions?

After we have dealt with the documentation of the re-billing of transport services to the buyer, we will consider the reflection of these operations in postings using a clear example.

Example

• The seller sold goods to the buyer in the amount of 895,420 rubles. (including VAT RUB 136,589.42).
• The purchase price of the goods is 762,710 rubles. (including VAT RUB 116,345.59).
• The cost of delivery of goods by the carrier under agreement with the seller amounted to 26,630 rubles. (including VAT RUB 4,062.20).

NOTE: with method No. 1, the intermediary reissues the delivery note and invoice for the cost of delivery (the sale of goods is not reflected in the intermediary’s accounting); With method No. 2, the shipping cost increases the cost of the product.

• The cost of intermediary services, reflected in method No. 1, is RUB 1,200.00. (including VAT RUB 183.05).
• The costs of transporting the goods are reimbursed by the buyer.

Operation	Method 1. Intermediary services			Method 2. Change in product cost
			Sum			Sum
Product purchased by seller			646 364,41			646 364,41
			116 345,59			116 345,59
			116 345,59			116 345,59
Item sold to buyer			895 420,00			= 895 420 + 26 630
			136 589,42			140 651,62 = 136 589,42 + 4 062,20
The costs of transporting the goods to the buyer are reflected (included in the price of the goods)						22 567,8
						4 062,20
						4 062,20
The cost of goods sold is written off			646 364,41			668 932,21 = 22 567,8 + 646 364,41
Reflected intermediary remuneration for transport services			1 200,00
The results at the end of the month are reflected			112 466,17 = 895 420 - 136 589,42 - 646 364,41			112 466,17 = 922 050 - 140 651,62 - 646 364,41 - 22 567,8
			1 016,95 = 1 200 - 183
Profit tax accrued			= (112,466.17 + 1,016.95) ×20%			= 112,466.17 ×20%
VAT paid			= 136 589,42 + 183,05 - 116 345,59			= 140 651,62 - 116 345,59 - 4 062,20

You can find out more about accounting for intermediary transactions in our article.

Read about the peculiarities of taxation of transport services in the article .

As can be seen from the example discussed above, method No. 2 is beneficial not only from the point of view of simpler documentation, but also as one in which the tax burden is lower - in this case, you do not need to pay taxes on income in the form of remuneration for intermediary.

Results

Rebilling of transportation costs can be done through the seller's mediation between the buyer and the carrier. But it can also be carried out in the form of an increase in the cost of the goods by the amount of transportation costs incurred. The second method is preferable. Firstly, it is easier in terms of documentation. Secondly, it is financially more profitable, because the tax burden is lower.

Reimbursement of transport costs by the buyer involves covering the costs of transporting goods at the expense of the buyer. The procedure for documenting and accounting for reimbursable transportation costs depends on several factors, which we will discuss in our article.

Methods for reimbursement of transportation costs under a supply agreement

The supply contract may provide for several options reimbursement of transportation costs by the buyer. For clarity, we presented them in the form of a diagram:

When reimbursement of transportation costs using method No. 1, the supplier does not participate in the transportation of goods. He simply gives the goods to the buyer or the carrier hired by him. This is where his obligations end. Therefore, this method of reimbursement of transportation costs is not taken into account in any way in the accounting and tax accounting of the seller.

But the options for reimbursement of transportation costs provided for in method No. 2 require their reflection in the supplier’s accounting. Let's look at each of them in detail.

Reimbursement of expenses for own transport services

Agreement

Before delivering the goods, the seller needs to decide on the method of accounting for transport services:

• in the cost of goods - in the supply contract;
• a separate amount - in the contract for transport services.

When taking into account the costs of transporting goods in the cost of goods, fix the amount of transport costs in the supply agreement. In particular, you enter the cost of the goods including VAT and indicate below that it includes the costs of transporting the goods to the buyer in the amount of NNNNN,NN rubles. If you wish, please note that when returning the goods, payment received from the buyer in relation to shipping costs incurred will not be refunded.

If the seller does not highlight the conditions and amount of reimbursement for the transportation of goods, but simply indicates the cost of the goods, then he may encounter troubles:

• firstly, when returning the goods, the buyer will have to return the entire cost specified in the contract, including the cost of delivery added to it;
• secondly, tax authorities can exclude the costs of transporting goods from the calculation of income tax on the principle “there are no conditions in the contract for the delivery of goods, i.e. the seller does not have to make it, and therefore the costs of transporting goods are not justified in any way” .

The best option for reimbursement and confirmation of transport services provided would be to form a separate contract (or additional agreement) for the transportation of goods. It will clearly indicate that the buyer is provided with services for the delivery of goods to the address specified by him. And he must pay them within a certain period. With this option, the seller maintains separate records for the sale of goods and the provision of transport services.

Source documents

When taking into account the services for transporting goods in its cost, the supplier issues a consignment note. The cost of transport services should not be indicated separately from the cost of the goods. This is due to the fact that the delivery note is intended to confirm the sale of goods and materials. And services do not belong to inventory items.

You can familiarize yourself with filling out the delivery note in our article.

To confirm to the tax authorities that the goods have been transported, the supplier must issue a waybill. Details about the rules for filling it out are set out in our article. .

If the seller outlines the cost of transportation in a separate agreement (additional agreement), then paperwork can be completed in 3 options:

• waybill;
• waybill and transport bill of lading;
• consignment note and certificate of provision of transport services.

Invoice

If the cost of transporting the goods is already taken into account in its cost, then the seller draws up 1 invoice for the entire amount intended to be paid by the buyer. There is no need to issue a separate invoice for transportation services.

But if the cost of transport services is taken into account in a separate agreement (additional agreement), then in this case you need to generate 2 invoices:

• by goods sold;
• for transport services provided.

All invoices issued by the supplier must be noted in the sales ledger. Invoices for materials and services received by the seller (fuels and lubricants, accompanying services, loading and unloading services, etc.) are recorded in the purchase book.

Read our article about the specifics of calculating VAT on transport services. .

Reimbursement of expenses for transport services of third parties

When the buyer reimburses expenses for transport services that are provided not by the seller, but by a third party in the form of a carrier, in essence, transport services are rebilled to the buyer through the seller according to the following scheme:

Postings reflecting reimbursement of transportation costs by the buyer

We have already written about the preparation of entries for reimbursement of transport services provided by specialized carriers in the article .

Therefore, now we will use a simple example to look at postings that reflect the procedure for reimbursement of only our own transport services.

Example

During August the following operations were performed:

1. Products sold:

• for method 1 - in the amount of 96,740 rubles. (including VAT 14,756.95 rubles), of which the cost of transporting goods including VAT is 19,965.60 rubles;
• for method 2 - in the amount of 76,774.40 rubles. (including VAT RUB 11,711.35).

1. The purchase price of the goods sold was written off - RUB 56,420.
2. An invoice was issued for payment of transport services in the amount of RUB 19,965.60. (including VAT RUB 3,045.60). Note: This is the condition for method 2.
3. The cost of transporting the goods amounted to 17,740 rubles. (including VAT on loading work provided by a third party - 820 rubles).

Operation	Method 1 The cost of transportation is included in the price of the goods under the supply agreement			Method 2 The cost of transportation is allocated to a separate agreement (additional agreement)
			Sum			Sum
Product sold						76 774,40
			14 756,95			11 711,35
The purchase price of the goods has been written off
Transport services provided						19 965,60
						3 045,60
Costs associated with the provision of transport services are taken into account		02, 10, 60, 69, 70, 76	= 17 740 – 820		02, 10, 60, 69, 70, 76	= 17 740 – 820
VAT on loading services of a third party has been allocated and accepted for deduction
Transportation costs written off

Results

Reimbursement of shipping costs by the buyer can be made in two ways. First: the buyer himself organizes and pays for the delivery of the purchased goods. Second: the buyer only pays for delivery, and the seller organizes it. In the first method, the seller does not record reimbursable costs at all. When using the second method, accounting for reimbursable transportation costs depends on how the seller transports the goods: himself or through a specialized carrier.

The Letters from the Ministry of Finance mentioned in the article can be found: section “Financial and personnel consultations” of the ConsultantPlus system

The purchase and sale agreement may provide that the responsibility for organizing the delivery of the goods is assigned to the seller, and the buyer must reimburse the seller for the costs associated with the delivery of the goods purchased by him. Art. 510 Civil Code of the Russian Federation. When executing an agreement with the buyer, the seller enters into an agreement with transport companies on its own behalf. But in connection with the buyer's compensation for the seller's transportation costs, the following questions arise.

Should the seller include in the VAT tax base the amount of reimbursement received for transportation expenses?

Should the seller re-invoice the buyer for transport services and, if so, how to do this correctly?

Does the buyer have the right to deduct VAT on reimbursed transportation costs?

Cost reimbursement relationship between seller and buyer

To answer the questions that have arisen, you need to correctly qualify the relationship for compensation of transportation costs.

And they correspond to relationships under an agency agreement, where the principal is the buyer, who instructs the agent (seller of the goods) to conclude contracts with transport service providers (carriers) at the buyer’s expense. Thus, under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal. clause 1 art. 1005 Civil Code of the Russian Federation. In this case, the principal is also obliged to reimburse expenses incurred by the agent in connection with the execution of the order. Articles 1001, 1011 of the Civil Code of the Russian Federation. As is known, under an agency agreement, the agent determines the VAT tax base only from the amount of his remuneration clause 1 art. 156 Tax Code of the Russian Federation. That is, if we qualify legal relations in this way, then the received amounts of compensation for transportation expenses are not subject to VAT from the seller.

In addition, such qualification of legal relations entails a special procedure for re-issuing invoices, which is established for intermediary agreements in Government Decree No. 1137 dated December 26, 2011.

The essence of re-invoicing when purchasing services through an agent (who has entered into contracts with carriers on his own behalf) is as follows. The seller receives an invoice from the carrier and registers it in the journal of received and issued invoices (he does not register the invoice in the purchase book and does not accept VAT for deduction). He then re-invoices the buyer for the transport services. In the invoice, he indicates the carrier as the seller of services, and the buyer of the goods as the buyer of services. The seller registers this invoice in the journal of received and issued invoices (the invoice is not registered in the sales book and VAT is not charged). In addition, the seller must include information about intermediary transactions indicated in the journal of received and issued invoices in the VAT return clause 5.1 art. 174 Tax Code of the Russian Federation. The magazine itself does not need to be submitted to the inspection.

The buyer of the goods registers the received invoice in the purchase book and deducts VAT.

Tax implications of cost reimbursement

Let's see what VAT consequences companies can expect depending on the wording of the terms of the purchase and sale agreement on reimbursement of transportation costs.

Agent scheme

Let’s say that in the purchase and sale agreement regarding the reimbursement of transportation costs, the terms of the agency agreement are clearly stated clause 3 art. 421 Civil Code of the Russian Federation, under which the seller of the goods, for a fee, undertakes to organize the delivery of the goods by concluding agreements with carriers on his own behalf and at the expense of the buyer of the goods. We described above the procedure for calculating VAT and re-issuing invoices for this situation. At the same time, the Ministry of Finance is not against such formalization of relations and believes that the buyer has the right to deduct VAT on transport services. Letter of the Ministry of Finance dated March 21, 2013 No. 03-07-09/8906. That is, this is a problem-free situation.

Reimbursement of expenses

If the contract simply states that the buyer will reimburse the seller for transportation costs, then the tax authorities will most likely require that the seller include the compensation amounts in the VAT tax base subp. 2 p. 1 art. 162 Tax Code of the Russian Federation. After all, the Ministry of Finance believes that the amount of compensation for transportation costs is related to payment for goods. At the same time, the seller can deduct the VAT presented by the carrier.

Moreover, as the financial department points out, in this case the seller draws up an invoice in one copy, which means that the buyer does not have the right to deduct VAT on transportation costs. Letter of the Ministry of Finance dated 02/06/2013 No. 03-07-11/2568.

Judicial practice is generally on the side of taxpayers. The courts confirm that the amount of compensation for transportation expenses does not fall under the concept of funds associated with payment for goods, since the seller of the service does not provide Resolution of the Federal Antimonopoly Service of August 12, 2013 No. A65-32027/2012; FAS NWO dated May 26, 2010 No. A66-7801/2009; FAS UO dated July 14, 2009 No. Ф09-4806/09-С3 (The Supreme Arbitration Court’s ruling dated September 8, 2009 No. VAS-11613/09 denied the transfer of the case to the Presidium of the Supreme Arbitration Court of the Russian Federation).

There is also a court decision in favor of the taxpayer (seller of the goods), which is interesting because the seller, adhering to the position of the Ministry of Finance, charged VAT on the amount of reimbursed transportation costs and took for deduction the VAT claimed by the carrier Resolution 15 AAS dated 04/06/2015 No. 15AP-4077/2015. But the tax authorities considered that the seller is not the person who actually provided transport services, therefore the received amount of reimbursement for the cost of delivery cannot be included in the VAT tax base, which means that the deduction of input VAT on delivery was declared incorrectly. The court, supporting the seller, agreed with the position of the Ministry of Finance Letter of the Ministry of Finance dated October 22, 2013 No. 03-07-09/44156.

There is another way to avoid disputes with tax authorities. To do this, you can add conditions to the sales contract stating that delivery of the goods is the responsibility of the seller and the amount of transportation costs is included in the price of the goods.

Arbitration Court of the Moscow Region, composed of judge E.V. Vasilyeva

when keeping the minutes of the court session by the secretary of the court session

Zh.A.Agasyan

having considered the case in court at the request of individual entrepreneur Dmitry Kolesnikov

Sergeevich

to Sheremetyevo customs

on declaring illegal the decision of October 1, 2018 No. RKT-10005023-18/000104

Representatives participate in the court hearing, according to the protocol of the court

meetings,

Installed:

Individual entrepreneur Dmitry Sergeevich Kolesnikov (hereinafter referred to as

IP Kolesnikov D.S., applicant, entrepreneur) appealed to the Arbitration Court

Moscow region with a statement to the Sheremetyevo customs office (hereinafter referred to as the customs

body, interested person) with a demand to invalidate the decision from

10/01/2018 No. RKT-10005023-18/000104.

A representative of the entrepreneur was heard at the court hearing,

who supported the stated demands and the customs representative who objected

against their satisfaction.

After listening to representatives of persons participating in the case, examining

evidence presented

Arbitration court

Installed:

In pursuance of the foreign trade contract dated September 14, 2018 No. 05-18,

concluded with the Company ERMIS Vostok, the company imported into the customs territory

Russian Federation medical products "ERMIS containers for sterilization,

storage, transportation of medical instruments, including contaminated ones,

infected to the place of washing and disinfection, transportation of medical

waste, with accessories."

These containers are registered with the Federal Supervision Service in

healthcare sector according to registration certificate dated 10/17/2011 No. FSZ

For the purpose of customs declaration in relation to imported goods (goods

No. 1) using the electronic declaration procedure, the company filed

customs authority customs declaration - No. 10005023/270918/0104173 (hereinafter -

At the same time, in column 33 “Product code” in DT No. 10005023/270918/0104173

the company classified the specified goods according to the HS code 8419 20 000 00 TN

On October 1, 2018, the customs authority decided to classify goods No.

RKT-10005023-18/000104 according to the HS code 7616999008, which provides a description

product such as “anodized aluminum alloy sterilization containers,

the base is not perforated, with a protective cover for sterilization, storage,

transportation of medical instruments (based on the submitted

technical description and ATD) manufacturer ERMIS MEDIZINTECHNIK, commercial

ERMIS sign."

Considering this decision of the customs authority to be illegal and contradictory

norms of customs legislation, the company appealed to the

arbitration court with this application.

Having examined and assessed in aggregate all available in the case materials

written evidence, the arbitration court comes to the conclusion that

the stated requirements are subject to satisfaction on the following grounds.

Regarding the distribution of legal costs incurred by the applicant in

going to court by paying a state fee in the total amount of 3,00 rubles, which

confirmed by payment orders dated December 3, 2018 No. 145, the court notes

to consider the case according to the general rules of claim proceedings.

The existence of this basis is confirmed by the following circumstances:

defendant through the electronic document filing service “My Arbitrator”

sent a response to the stated demands to the case materials, in which the court asks

refuse to satisfy the stated requirements, for the reasons stated in the review.

15 of the Federal Law of December 7, 2011 N 416-FZ “On Water Supply and Sanitation”,

Article 544 of the Civil Code of the Russian Federation provides that

Payment for energy is made for what is actually received by the subscriber (consumer)

amount of energy in accordance with energy metering data, unless otherwise provided

law, other legal acts or agreement of the parties.

water supply and sanitation" in case of concluding a single contract for cold

water supply and sanitation such an agreement must contain essential conditions,

established by this Federal Law for cold storage contracts

water supply and sanitation.

To the relations of the parties under a single contract for cold water supply and

drainage systems apply in the relevant parts of the rules on cold water contracts

water supply and sanitation, unless otherwise follows from the agreement of the parties or

the essence of the agreement. Application to the specified relations in the relevant part

the procedure for providing security provided for by this Federal Law

fulfillment of obligations to pay for drinking and (or) technical water supplied through

cold water supply contracts, the procedure for providing performance security

obligations to pay for sewerage, as well as the procedure for calculating penalties for the specified

contracts is mandatory.

Such an agreement was concluded by the parties, services were provided, but not paid in full

The fact of provision of water supply services during the disputed period was confirmed

documents available in the case (agreement for water supply and sewerage from

03/18/2014 No. 964/BK, acts of services rendered, invoices), which were assessed by the court with

water supply and sanitation" in the case when HOAs, housing cooperatives, joint ventures created for the purpose of

meeting the needs of citizens for housing, purchasing drinking water and (or)

process water for the purpose of providing public services, in the event

untimely and (or) incomplete payment for water is paid by organizations

providing cold water supply, a penalty in the amount of one three hundredth of the rate

refinancing of the Central Bank of the Russian Federation, effective on the day

actual payment, from the amount not paid on time for each day of delay starting

from the thirty-first day following the due date for payment,

on the day of actual payment made within ninety calendar days from

day of the established payment deadline, or before the expiration of ninety calendar

days after the due date for payment, if within ninety days

payment has not been made. Starting from the ninety-first day following the day

the due date for payment, on the day of actual payment of the penalty

Bank of the Russian Federation, valid on the day of actual payment, from not

Since the fact of improper fulfillment by the defendant of the obligation to pay

water supply and sanitation services established by the court, confirmed by materials

case and the defendant is not disputed, but evidence of the existence of the circumstances defined in

was not presented by the defendant as grounds for exemption from liability,

The plaintiff's demand to recover a penalty from the defendant must be satisfied.

The plaintiff's calculation of the amount of the penalty for the period from July 21, 2018 to

10/01/2018 in the amount of 2,196.01 rubles, verified by the court and recognized methodologically and

arithmetically correct. The defendant did not provide a counter-account.

In connection with the above, the claims in this part are considered justified,

subject to satisfaction.

The plaintiff also filed a demand for the recovery of a penalty accrued in the amount

debt in the amount of 204,279.58 rubles on the day of actual execution of the monetary

liabilities based on: in the amount of 1/300 of the key rate of the Central Bank of the Russian Federation valid on the day

actual payment from the amount not paid on time for each day of delay starting

from 10/02/2018; starting from 10/19/2018 until the day of actual payment based on 1/130 key

rate of the Central Bank of the Russian Federation, effective on the day of actual payment from unpaid on time

amount for each day of delay.

By virtue of paragraph 65 of resolution No. 7 within the meaning of Article 330 of the Civil Code

Russian Federation, the plaintiff has the right to demand the award of a penalty on the day

actual fulfillment of the obligation (in particular, actual payment to the creditor

funds, transfer of goods, completion of work). Law or contract may

a shorter period for calculating the penalty may be established, or its amount may

be limited (for example, paragraph 6 of Article 16.1 of the Federal Law of April 25, 2002 N

40-FZ "On compulsory insurance of civil liability of owners

In view of the above, claims for the recovery of penalties accrued

for the amount of debt in the amount of 204,279.58 rubles on the day of actual execution

monetary obligation at the rate of 1/300 of the key rate of the Central Bank of the Russian Federation,

valid on the day of actual payment from the amount not paid on time for each

day of delay starting from 10/02/2018; starting from 10/19/2018 until the day of actual payment

based on 1/130 of the key rate of the Central Bank of the Russian Federation, valid on the day of actual payment from not

the amount paid on time for each day of delay is also subject to satisfaction.

In accordance with Part 2 of Article 168 of the Arbitration Procedure Code

of the Russian Federation, when making a decision, the arbitration court, including

distributes legal costs.

Part 1 of Article 110 of the Arbitration Procedure Code of the Russian Federation

Federation provides that legal costs incurred by persons involved in

case, in whose favor a judicial act was adopted, are recovered by the arbitration court from

If the court accepts the statement of claim, the plaintiff is granted a deferment in payment

state duty before considering the dispute on the merits.

Based on the rules established by Article 110 of the Arbitration Procedure

Code of the Russian Federation, legal costs for payment of state duty in

in the amount of 7,130 rubles, shall be attributed by the court to the defendant and recovered as income

Federal budget.

Guided by the Arbitration Procedural Code

Russian Federation, arbitration court

Decided:

To recover from the Solnechny Homeowners Association in favor of the society with

limited liability "Don Regional Company" debt on

contract for water supply and sanitation No. 964/BK dated March 18, 2014 for the period from November

2017 to April 2018 in the amount of 204,279.58 rubles; penalties for the period from July 21, 2018 to

09/06/2018 in the amount of 2,196.01 rubles; penalties accrued based on the amount of debt

in the amount of 204,279.58 rubles on the day of actual payment based on:

In the amount of one three hundredth of the Central Bank refinancing rate

Russian Federation, valid on the day of actual payment, from unpaid in

term of the amount for each day of delay starting from 10/02/2018 until the day of actual payment,

made within ninety calendar days from the date of the established

payment deadline is October 18, 2018, or before the expiration of ninety calendar days after the day

the due date for payment, if payment is not made within ninety days

produced;

Starting from the ninety-first day from October 19, 2018 until the day of actual payment of the penalty

are paid in the amount of one hundred and thirtieth refinancing rate of the Central

Bank of the Russian Federation, valid on the day of actual payment, from not

amount paid on time for each day of delay.

To recover income from the Solnechny Homeowners Association

federal budget 7,130 rubles state duty.

The court decision in this case comes into force after

one month from the date of its adoption, unless an appeal is filed. When

filing an appeal, the decision, if it is not canceled or changed, comes into force

legal force from the date of adoption of the decision of the arbitration court of appeal

authorities.

The court's decision in this case can be appealed to the appellate

order in the Fifteenth Arbitration Court of Appeal within a month from the date

making a decision through the court that made the decision.

The court's decision in this case can be appealed to the cassation court.

order in the Arbitration Court of the North Caucasus District within two months from the date

entry into force of the decision through the court that made the decision, provided that

it was the subject of consideration by the arbitration court of appeal or the court

the appellate court refused to reinstate the missed filing deadline

appeal.

Judge I.P. Komurdzhieva