The Supreme Arbitration Court supports VAT deduction based on VAT invoices signed by unidentified persons.

28.05.2010

Legal Update No. 145.

Goltsblat BLP advises that Resolution No. 18162/09 of the Presidium of the Supreme Arbitration Court of the Russian Federation of 20 April 2010 (the Resolution) on a case regarding application of VAT deductions and booking of deductible expenses on the basis of VAT invoices and source documents signed by unidentified persons has been officially published.

In this legal case, when performing a tax audit, the tax authorities, without challenging the actual business operations of the taxpayer, refused VAT deduction and deduction of certain expenses for profit tax purposes, claiming that the relevant VAT invoices issued by counterparties were signed by unidentified persons and the source documents confirming the operations were unreliable.

The Presidium of the Supreme Arbitration Court of the Russian Federation disagreed with the tax authorities’ conclusions, indicating that, if the taxpayer’s counterparty complies with the statutory requirements for executing VAT invoices and source documents, there are no reasons to presume unreliability or inconsistency of data contained in these documents unless the tax authorities can prove that the taxpayer was aware or should have been aware of the seller providing unreliable or inconsistent data. The Resolution also emphasises proof of the fact of business operations (that they actually occur).

Notably, in its Resolution, the Presidium of the Supreme Arbitration Court underlines that its interpretation of the principles of law is universally binding and is to be applied by state arbitration courts upon consideration of similar cases.

The adoption of this Resolution will thus modify existing court practice, according to which the taxpayer regularly lost its right to VAT deduction and tax deduction of expenses for profit tax purposes whenever the tax authority was able to prove that the relevant VAT invoices and source documents were signed by unidentified or unauthorised persons.

In addition, on the basis of the legal views disclosed in clause 5.1 of Resolution No. 17 of the Plenum of the Russian Supreme Arbitration Court dated 12 March 2007, the interpretation of the legal rules contained in this Resolution should also be taken into account by courts of appeal and cassation in assessing whether there are grounds for modifying or cancelling legal acts pertaining to similar cases contested in these courts and also by the Supreme Arbitration Court of the Russian Federation when it refuses to consider opportune supervisory appeals on similar cases. Such refusals should indicate the possibility of these cases being reviewed by lower courts on the basis of newly discovered circumstances.

For additional information, please contact:

Andrey Shpak,
Partner,
Tax consulting/tax litigation
Goltsblat BLP;
Tel: +7 (495) 287 44 44,
Email: info@gblplaw.com

Sergey Kalinin,
Senior Associate,
Tax consulting/tax limitation Goltsblat BLP;
Tel: +7 (495) 287 44 44,
Email: info@gblplaw.com

 

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