On the basis of the Tax Code of Ukraine Art. 291.4 to the 2 — group of businessmen edinonalozhnikov include persons engaged in economic activities to provide services to a single tax payer and / or the general public , the sale of goods, provided that they fulfill the criterion of the number of employees and the size of the boundary of income. As can be seen from the provisions of the Tax Code of Ukraine st.291.4 such businesses can sell products to anyone, but only to provide services to a single tax payer and / or the public. Provision of such services by owner » obschesistemschikam » in the interpretation of section 4) Art. 299.15 Tax Code of Ukraine will be considered a violation of the conditions of use of the simplified system of taxation, accounting and reporting, and can lead to cancellation of the single tax payer.
According to Art . 14.1.202 of the Tax Code of Ukraine the sale of goods in the interpretation of tax legislation are any operations under purchase and sale, exchange , delivery , etc. A sale of services on the basis of Art . 14.1.203 of the Tax Code of Ukraine , means any transaction of economic , civil law to provide services , as well as operations on their free provision . The aforementioned situation, the terms » services » and » sale of services » is quite possibly be considered identical. Agreements for the sale are considered section # 54 the Civil Code of Ukraine. A special case of a contract of sale is a contract of supply. According to which , on the basis of Art. 712 of the Civil Code, the seller ( supplier) shall transfer the due date items in the property buyer, and the buyer agrees to accept the goods and pay him a sum of money . Supply contract is typically used when placing the sale of goods between business entities . These agreements apply the general provisions on contracts of sale , unless otherwise provided by contract , law , etc.
Under a contract for the provision of services ( section # 63 of the Civil Code) , one party ( contractor) undertakes to the other party ( the customer) have consumed the service and the customer agrees to pay for this service to the artist , unless otherwise provided by the contract. Particular type of contractual relationship related to the transportation of goods are, for example , the contract of carriage and freight forwarding . In the first case the transport of goods is under a contract of carriage , the terms of which are defined by the Civil Code of Ukraine, transport codes ( charters) , laws , etc. In such a case, the carrier undertakes to deliver the cost burden on the instructions of the sender to the recipient. In the provision of services under the contract of freight forwarding freight forwarder undertakes the expense and charge the client side or the other to organize the execution of the contract or to perform certain services relating to the transport of goods (including if the duties performed by the freight forwarder and carrier ) . As can be seen , the legal arise in the supply of goods and services differ radically from each other in the transaction .
In the contract of sale (supply ), the main responsibility of the seller is to transfer things (goods) to the buyer. Thus, according to claim 1 ) Art. 664 of the Civil Code ( which sets the time of execution of the seller’s obligation to transfer the goods ) the seller’s obligation to transfer the goods is performed at the time of delivery of goods to the buyer , unless the contract is set obligation of the seller to deliver the goods. That is, the civil law expressly provides for the delivery of goods by the seller under the contract of sale (supply) . In this case, the delivery of goods may be an essential condition of the contract or paid for separately by the buyer . If the delivery seller is paid separately , then edinschikov likely interpretation validates the payment as income from services .
For the avoidance of doubt mentioned in the question of legal and tax risks reducing edinonalozhnikov should take a responsible approach to drawing up a contract to supply goods. First , the contract should specify the «tax status» of the buyer . Secondly , it is appropriate in the text of the treaty and in the primary documents do not mention the expression — «the cost of shipping ( delivery services ) is included in the cost of goods «, » separately «, » service is not paid separately ,» etc. , and to be limited , for example, in the relevant section of the contract ( «primary «), the «general » with » The goods are delivered under the DAP (delivered at place / delivery at the destination ) ,» etc. Which means that the seller delivers at which the goods are placed at the disposal of the buyer on the arriving means of transport ready for unloading at the agreed place of destination * . So, in the contractual documentation and initial conditions do not need to mention that » the goods are delivered free of charge «, since the operations to provide free services to the interpretation of Art. 14.1.203 of the Tax Code of Ukraine will definitely be selling them . That, of course , can be interpreted by the tax service as a violation of the conditions of use of the simplified system. Of course, if the goods are delivered to the buyer under the contract to supply (no mention of » free» delivery ), and such delivery is the responsibility of the seller under the contract , then such transport to the buyer can not be considered free of the services received .
If delivery is made by a third party ( the carrier) and paid by the seller , then the incorrect registration of a contract to supply original documents and there is a risk of legal interpretation of the data as the auditors of freight forwarding services . Therefore, in this case also it is advisable to use the above approach is the » omission » of transport and forwarding services and pay them or their » bezoplatnoy » in the contract and the » primary» . In case the buyer is ordered and paid services for the delivery of goods purchased from a third party carrier , the risk for the seller nalgovyh — edinonalozhnikov — no.
In the event of disputes with the tax authorities should refer to the fact that the sale of the product and its delivery is made within the framework of a contract to supply (purchase and sale) , and not contract for the provision of services ( transportation and freight forwarding ) . Buyer transportation, freight forwarding goods does not pay for these services are free and do not receive, because the delivery of goods to a specified place is the seller’s obligation under the supply agreement . At the same time as it is necessary to pay attention to paragraph 2 Art. 901 of the Civil Code, which does not give the right to apply the general provisions on services to contracts ( for services ), unless it is contrary to the essence of the obligation , as in this situation, there are obligations of the seller for the transfer of goods, and not the Executive — to provide services. If the owner does not agree with the decision of the tax authority , he may appeal to the administrative or judicial procedure.
Published in 2013.
* Incoterms 2010 — the international rules for the interpretation of trade terms.