ST 170 of the Criminal Code of the Russian Federation.
Registration of obviously illegal transactions with real estate, deliberate distortion of information from the state real estate cadastre and (or) the Unified State Register of Rights to Real Estate and Transactions with It, as well as understatement of the cadastral value of real estate, if these acts were committed out of selfish or other personal interest by an official using his official position, -
shall be punishable by a fine in the amount of two hundred thousand to five hundred thousand rubles, or in the amount of the wages or other income of the convicted person for a period of one to three years, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years, or by compulsory labor for a term up to three hundred and sixty hours with deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years.
Commentary to Art. 170 Criminal Code
1. The objective side of the crime is characterized by the following alternative actions: a) registration of obviously illegal transactions with real estate; b) deliberate distortion of information from the state real estate cadastre and (or) the Unified State Register of Rights to Real Estate and Transactions with It; c) underestimation of the cadastral value of real estate.
2. A transaction made in violation of the provisions of the Civil Code of the Russian Federation and the requirements of other legislation is illegal (for example, transactions with lands that are excluded from circulation on the basis of the law or are limited in circulation if the transaction results in a violation of established restrictions).
3. The State Real Estate Cadastre, being a state information resource, is a systematic collection of information about registered real estate. The state real estate cadastre is maintained on paper and (or) electronic media by Rosreestr.
Distortion of registration data of the state real estate cadastre is expressed in the creation of falsified registration data using false entries or partial forgeries. For example, the following information about the unique characteristics of the property may be falsified: type of property (land plot, etc.); cadastral number and date of entry of this cadastral number into the state real estate cadastre; category of land to which the land plot is assigned; permitted use; description of the location of the boundaries of the land plot, etc.
The State Real Estate Cadastre on electronic media is part of a unified federal information system that unites the State Real Estate Cadastre on electronic media and the Unified State Register of Rights to Real Estate and Transactions with It on electronic media.
The Unified State Register of Rights contains information about existing and terminated rights to real estate objects, data about these objects and information about right holders.
Rights to real estate and transactions with it are subject to state registration in the Unified State Register of Rights.
An integral part of the Unified State Register of Rights are files of title documents opened for each property, and document books containing data on documents accepted for registration.
4. Understating the cadastral value of real estate is the entry into the state real estate cadastre of deliberately false information regarding the cadastral value of real estate.
5. The subject of this crime can only be an official, for example, a tax authority, Rosreestr.
How is VAT restored when carrying out construction and installation works on fixed assets?
When carrying out construction and installation work (CEM) for the reconstruction of real estate, the initial cost changes. In this case, VAT on construction and installation costs and purchased materials for reconstruction is deductible. If a renovated building is used for non-taxable operations, VAT on construction and installation works and materials used should be restored (clause 2 of Article 170 of the Tax Code of the Russian Federation). This is possible if:
- the building is not fully depreciated;
- Less than 15 years have passed since the building was put into operation.
The company, similar to actions with real estate, must annually record in the declaration the amount of restored VAT for 10 years. When calculating, a share of 1/10 of the VAT amount accepted for deduction upon completion of construction is taken. It is determined based on the results of the year. The share is calculated by dividing the cost of goods shipped, not subject to VAT, by the total cost of property sold at the end of the year.
Financiers recommend including in the total cost the amounts from the sale of fixed assets, securities and other assets (letter of the Ministry of Finance dated March 10, 2005 No. 03-06-01-04/133). Recovered VAT is included in other expenses (Article 264 of the Tax Code of the Russian Federation).
VAT recovery is not carried out if the OS:
- transferred for use free of charge under an agreement;
- by decision of the company's directors:
- have been preserved for a period of more than 3 months;
- reconstructed over 12 months.
In this case, the amount of restored VAT is determined by the formula:
Where:
VATv - VAT to recovery;
VATvych - VAT on the cost of construction and installation works, materials and services during reconstruction;
K1 - the number of years after which depreciation is not charged;
K2 - the number of years remaining until 10;
D - share in the cost of goods not subject to VAT in relation to the total cost.
Second commentary to Art. 170 of the Criminal Code of the Russian Federation
1. The article combines three independent crimes, all of which relate to real estate:
1) registration of obviously illegal transactions with real estate;
2) deliberate distortion of information from the state real estate cadastre and (or) the Unified State Register of Rights to Real Estate and Transactions with It;
3) underestimation of the cadastral value of real estate.
2. In Art. 130 of the Civil Code defines: immovable things include: land plots, subsoil plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, unfinished construction objects; aircraft, sea vessels and inland navigation vessels subject to state registration; other property.
The right of ownership and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination are subject to state registration in the unified state register by the bodies carrying out state registration of rights to real estate and transactions with it.
3. State registration of rights to real estate is a legal act of recognition and confirmation of the emergence, change, transition, termination of the right of a certain person to real estate or restriction of such a right and encumbrance of real estate. State registration of rights is carried out by making a record in the Unified State Register of Real Estate of the right to real estate, information about which is included in the Unified State Register of Real Estate. The right of ownership and other proprietary rights to real estate and transactions with it are subject to state registration in accordance with Articles 130, 131, 132, 1331 and 164 of the Civil Code, as well as those arising, including on the basis of an agreement, or an act of a government body, or an act local government body, restrictions on rights and encumbrances of real estate, in particular easement, mortgage, trust management, rent, rental of residential premises (Article 1 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”, hereinafter referred to as the Federal Law of July 13, 2015 .2015).
4. The objective side of the first crime is the registration of obviously illegal transactions with real estate.
Transactions are illegal if they contradict current civil and (or) other, for example, land legislation.
5. The subject of the second crime under Art. 170 of the Criminal Code, the following information is provided:
1) state real estate cadastre and (or)
2) The Unified State Register of Rights to Real Estate and Transactions with It.
6. The crime encroaches on the registration of real estate, including cadastral registration.
State cadastral registration of real estate is the entry into the Unified State Register of Real Estate of information about land plots, buildings, structures, premises, parking spaces, objects of unfinished construction, unified real estate complexes, and in cases established by federal law, and about other objects , which are firmly connected to the land, confirming the existence of such a property with characteristics that make it possible to define it as an individually defined thing, or the termination of its existence, as well as other information about real estate provided by law (Article 1 of the Federal Law of July 13, 2015).
7. The objective side of distortion of cadastral and (or) register information is the introduction of false entries into the documents of the State Real Estate Cadastre or partial falsification of true accounting data, which can be expressed in erasures, additions, erasing entries and making new ones, etc.
8. The elements of registration of obviously illegal transactions with real estate and distortion of information from the State Real Estate Cadastre are special cases of official forgery. Articles 170 and 292 of the Criminal Code compete here as special and general norms. According to the qualification rules, a special standard must be applied, i.e. Art. 170 CC.
9. The subject of the third crime under Art. 170 of the Criminal Code, the cadastral value of real estate objects is used, i.e. the value established as a result of the state cadastral valuation or as a result of the consideration of disputes about the results of determining the cadastral value, or determined in the cases provided for in Art. 24.19 Federal Law of July 29, 1998 No. 135-FZ “On valuation activities in the Russian Federation” (Article 3 of this law).
10. The objective side of understating the cadastral value of real estate is an illegal reduction.
11. A crime in all its manifestations is considered completed from the moment the act specified in the disposition of the article is committed.
12. The subjective side is characterized by direct intent.
A mandatory sign of the subjective side is selfish or other personal interest.
13. Subject: an official using his official position.
What to do with VAT when writing off raw materials at the end of their shelf life?
Let's say the shelf life of the raw materials from which medicines are made has expired. In this case, it must be written off and disposed of because it is no longer suitable for production. However, when purchasing raw materials, VAT was deducted. In connection with the destruction of raw materials, the conclusion arises that VAT cannot be recreated.
The list of cases when it is necessary to restore VAT is given in paragraph 3 of Art. 170 Tax Code of the Russian Federation. According to the courts, due to the fact that the operation to destroy raw materials is not included in clauses 2 and 3 of Art. 170 of the Tax Code of the Russian Federation, there is no need to restore VAT (resolution of the 9th Arbitration Court of Appeal dated October 24, 2012 No. 09AP-30416/2012). However, tax officials insist on the mandatory restoration of VAT.
Therefore, it is worth understanding that there may be disagreements with tax authorities on this issue. If the company has no desire to argue with the Federal Tax Service in an arbitration court, the restored VAT is included in other expenses (subclause 1, clause 1, article 264 of the Tax Code of the Russian Federation).
How to take into account VAT on OSN with UTII?
If a company uses these two tax regimes, it is necessary to keep separate VAT records. Incoming goods for both types of activities are accounted for differently. In this case, when developing an accounting policy, the company must take into account the need for a quarterly calculation of VAT with the determination of the proportion for each type of taxation, so that this calculation allows for reliable data on VAT deductions.
Let's consider several options for distributing inventory items by type of activity:
- Incoming goods may clearly relate to one of the activities due to the cyclical nature of procurement (for example, monthly). In this case, if materials are purchased for activities under the OSN, then the entire VAT on the received goods is deducted, and the invoice is recorded in the purchase book. If the purchased goods are intended for activities under UTII, then VAT is fully included in the cost of materials, and the invoice is not registered.
- When purchasing materials with their simultaneous use for 2 types of activities, part of the materials is subject to deduction, and part is subject to VAT restoration. Separate accounting is already needed here. If it is not maintained, then an updated VAT return must be submitted to the Federal Tax Service (letter of the Ministry of Finance dated December 6, 2006 No. 03-04-15/214). According to this clarification, VAT amounts accepted for deduction in a larger volume can be restored in the quarter when the goods were used for activities under UTII.
- If at the beginning of the period it is not possible to determine in what type of activity the material will be used, then it is necessary to determine its actual use at the end of the quarter. At the same time, the VAT amounts for each type of activity are determined.
What happens to VAT when returning goods?
The return of purchased goods by the buyer raises the issue of VAT for the seller. If this product is not used in the future for sale due to detected defects, the Ministry of Finance believes that VAT should be restored and paid to the budget, and this should be done during the period when the returned product is accepted for accounting. However, when reading paragraph 3 of Art. 170 of the Tax Code of the Russian Federation, we will see that it stipulates all possible cases of VAT recovery. This situation cannot be attributed to them. Therefore, arbitration courts believe that the company may not restore VAT.
