Правомерность принятия к вычету налога на добавленную стоимость, оплаченного за счет средств, полученных от инвестора

Daniil G.  Antonov

Authors

Daniil G. Antonov St. Petersburg State University, 7–9, Universitetskaya nab., St. Petersburg, 199034, Russian Federation

Abstract

This article explains why a purchaser of goods, works, and services should be entitled to the value-added tax (VAT) deduction, irrespective of the financial source out of which this tax has been paid. The author concludes that deprivation of the right to deduct VAT due to an allegedly inappropriate source of payment (when the tax has been paid by an investor, rather than by a taxpayer) violates the prohibition against broad construction of tax legislation provisions containing an exhaustive list of requirements for enforcement of the right to deduct input VAT. Furthermore, such deprivation does not allow striking the balance between public and private interests in taxation, arbitrary transforms VAT from a consumption tax into an investment activity tax, thus negatively affecting the national economy. The analyzed approach supported by a number of courts totally ignores the actual will of the parties to civil law (investment) obligations and introduces an absolute presumption of transferring the capital investment object from its user to the investor. In other words, it has set a completely unreasonable rule according to which VAT is imposed not on the entity acquiring works on construction (reconstruction) of capital investment objects, but rather on the entity which finances them. This deforms one of the fundamental principles of tax law according to which taxation must be based upon genuine civil law relations, rather than on those civil law relations which are constructed artificially taking into account tax implications. The criticized position is a revival of the worst trends in the Russian taxation practice and is based on the Ruling of the Russian Constitutional Court No 169-O as of April 4, 2004 which nowadays is not applicable to the category of disputes under consideration because of changes in the current legislation and adoption by the Russian Supreme Commercial (“Arbitrazh”) Court of an alternative clarification in paragraph 9 of Plenum Resolution No. 53 as of October 12, 2006.

Keywords:

value added tax, actual payment of tax, investment value added tax, right to tax deduction, principles of taxation, neutrality of value added tax, investment activity

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References

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