The use of a single tax on imputed income imposes a number of significant restrictions on organizations and individual entrepreneurs. For example, they do not have the right to sell goods in bulk and to conduct entrepreneurial activity. How to draw up a retail sale and purchase agreement with UTII in order to avoid tax sanctions, this material will tell.

Restrictions on UTII

Trading organizations and individual entrepreneurs using UTII should be aware that in addition to the type of activity (from Article 346.29 of the Tax Code of the Russian Federation, they have other restrictions:

• square trading floor one object cannot exceed 150 m²;
• the average number of employees cannot be more than 100 people;
• cannot be traded in bulk for further use in business purposes.

It is the last point that raises the most questions from both taxpayers and the tax authorities themselves. What exactly can be considered the use of goods in business activities, is it possible to sell products through a store legal entities, continuing to apply the single tax, and how to draw up a retail contract. We will try to consider the main points with UTII-2017.

Sample retail trade agreement for UTII

If an organization or individual entrepreneur maintains a store on the “imputation”, he has the right to sell goods to other organizations (IP) under a retail sale and purchase agreement, regardless of the form of payment (cash or non-cash). At the same time, it is impossible to sell products under a supply agreement using "imputation". So what's the difference?

The answer lies in the Civil Code. AT Art. 492 of the Civil Code of the Russian Federation it is said that in the document declaring retail, the seller undertakes to transfer to the buyer products intended for personal, family, home or other use not related to entrepreneurial activity. Whereas in the supply agreement, on the contrary, the sale cannot be related to personal needs and the purchase can only be applied in the conduct of business. Besides, in Art. 346.27 of the Tax Code of the Russian Federation It is said that retail trade in goods for cash is recognized, as well as with the use of payment cards on the basis of retail sales contracts.

It would seem that everything is simple: name the document correctly and calmly work on the “imputation”. However, in practice, during tax audits, FTS specialists often cancel imputed taxation on such transactions. The tax authorities see an unreasonable tax benefit and tax evasion if, for example, a store building materials sells its goods by bank transfer to the same organization on a regular basis. And although even the Ministry of Finance of Russia indicates (letter No. 03-11-11/64 dated 02.03.2012) that it is not the responsibility of the seller to control the further use of the goods by the buyer (for personal needs or business), the tax authorities recognize such transactions as wholesale. In this case, the taxpayer has to go to court, but such processes do not always end in favor of businessmen.

Why is this happening? The answer can be found in Art. 493 of the Civil Code of the Russian Federation, which states that in most cases a retail sale and purchase agreement is considered concluded from the moment the seller issues a cash or sales receipt or other document confirming payment for the goods to the buyer. In other words, such an agreement is a one-time transaction and is actually concluded at the time of payment for the goods. If the buyer is not an organization, but an ordinary person, he does not sign any documents in the store in order to buy products or the same building materials for his needs. So and retail customer by bank transfer, ideally, should not sign such a document. Moreover, the legislation provides that a retail transaction is certified by any document confirming the fact of transferring money: a receipt (BSO), cash receipt or bank statement. Additionally, the buyer can receive an invoice and a consignment note. Indeed, with UTII, VAT is not provided, therefore, no documents are required for the deduction.

If you still decide to conclude a written agreement with the buyer, then pay attention to the sample retail sales contract for UTII below. It should be one-time and might look like this:

Agents and intermediaries

Separately, it is necessary to consider the possibility of using UTII and agency contract. Agents, according to Art. 1005 of the Civil Code of the Russian Federation, are different:

• the agent may assume the obligation to perform actions for remuneration on behalf of the principal on his behalf;
• an agent can conduct transactions on his own behalf, but at the expense of the principal.

It is on this that the rights and obligations of both the agent and the principal depend, affecting the possibility of using UTII. For example, if agency duties consist in the sale of commission goods, then by virtue of GOST R 5130399 this is retail. But in order to be able to apply UTII thrift store, you must either personally own the premises or rent it on your behalf. That's why importance has a lease agreement for UTII. The commercial premises must be owned or leased by an agent. At the same time, it does not matter from whom the outlet is rented. The commission agent has the right to apply the “imputation”, even if the premises are owned by the committent (letter of the Ministry of Finance of Russia dated January 22, 2009 No. 03-11-06 / 3/06).

Purchase and sale procedures must be properly documented. Otherwise, there may be enough a large number of complexities.

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The retail sale and purchase agreement has a large number of very different nuances. Preliminary acquaintance with all will make it possible to avoid various kinds of complications in the future.

There are a wide variety of regulations and legal documents directly related to the drafting of this type of contracts.

Significantly simplifies the compilation process financial statements such an agreement. You should not make mistakes when compiling. Otherwise, the contract may be declared simply invalid.

Basic moments

To carry out the procedure for acquiring any property and subsequent reporting on this procedure, it will be necessary to draw up a special one.

In the absence of such, it will not be possible to reflect in detail the relevant information in the financial statements in an appropriate way.

At the legislative level, a list of situations is indicated when it will be necessary to without fail draw up such an agreement.

However, there are circumstances in which such a retail sale contract is not required.

It all depends on the status of the buyer, the seller, as well as many other points. All of them are reflected in the Civil Code of the Russian Federation and other regulatory legislative documents.

The main questions to consider first are:

• definitions;
• types of agreement;
• legal base.

Definitions

The retail purchase agreement is a document strict accountability. Therefore, the process of compiling it is reflected in sufficient detail in specialized legislative acts.

But for a correct interpretation of the information reflected in such acts, it will be necessary to disassemble some concepts and definitions.

The main and most important are the following:

• buyer;
• salesman;
• retail;
• the responsibility of the seller;
• an object;
• conclusion method.

Types of agreement

The Civil Code of the Russian Federation establishes a fairly large number of various types of sales methods. The same is true with contracts.

On the this moment There are the following types of document of the type indicated above:

In each of the above cases, a special contract must be drawn up without fail. However, there are some features.

In the absence of a certain experience in the formation of such documents, it is mandatory to familiarize yourself with a correctly drawn up sample.

Varieties of the contract, their complete list - all this is presented in the relevant legislative norms. The retail sale contract is considered concluded from the moment of payment.

Moreover, it is not at all necessary that such an agreement should be drawn up on a separate form, in compliance with all the basic rules for compiling such documentation.

Sometimes it is enough just to carry out the very fact of payment and draw up a sales receipt.

Even if any problems later arise, it will be sufficient to have only the documents indicated above.

Legal framework

Main legislative section which you need to focus on when drawing up a contract of sale is

Civil Code Russian Federation. First of all, you should pay attention to the following articles:

All the above articles are actually considered in detail different types contracts for the implementation retail. There are many differences for this type of contracts.

That is why it is worth carefully studying all the regulatory and legal acts. Otherwise, both the seller and the buyer may have any difficulties in the future.

Also, familiarization with the relevant sections will significantly simplify the procedure for protecting your own rights and interests.

If such a need arises, you need to contact the consumer protection department or immediately go to court. Both methods have their advantages and disadvantages. Appeal to the court allows you to implement the review process faster.

How to fill out the Retail Purchase Agreement Form

The process of drawing up a contract of this type has a large number of very different nuances and features.

The main questions, the early study of which will make it possible to avoid the most different difficulties:

• content;
• essential conditions;
• who can be parties;
• liability under the agreement;
• completed example.

Despite the fact that the contract, depending on a variety of points, may differ significantly, in general, the content is standard.

Such a document most often includes the following main sections:

• the number of the contract being drawn up, the full name of the document;
• date and place of compilation;
• salesman;
• buyer;
• the subject matter of the contract;
• contract price, settlement procedure;
• the procedure for the transfer of goods;
• rights and obligations of the parties;
• guarantee period;
• the responsibility of the parties;
• permission procedure;
• final provisions;
• bank details, as well as the addresses of the parties.

Depending on the subject of the contract, the format of this document may differ significantly. If the purchase amount is large enough, then you should definitely familiarize yourself with all the essential nuances beforehand.

And also consult a qualified specialist. This will avoid a variety of difficulties and problems.

Essential conditions

The most important conditions include the algorithm for the transfer of the goods themselves.

In the case of a standard purchase procedure, the following points should be indicated:

Who can be parties

On the territory of the Russian Federation, no restrictions are imposed on trade relations between individuals and legal entities.

The same is true for individual entrepreneurs. Then, contracts of the type in question can be concluded without any problems between the following persons:

• legal;
• physical;
• individual entrepreneurs.

Liability under the agreement

In accordance with the Civil Code of the Russian Federation, the seller, supplier and manufacturer are responsible for the quality of the goods purchased by the buyer.

There are specialized legislative norms governing liability under a retail sale agreement.

Completed example

In this way, errors can be reduced to a minimum. This is especially important in case you need to protect your rights in court in the future.

From this article you will learn:

• How, when trading with legal entities, not to lose the right to UTII
• How does a retail sales contract differ from a supply contract?
• On what grounds can tax authorities attribute a transaction to wholesale trade?

An organization or entrepreneur engaged in retail trade may apply UTII subject to the conditions specified in paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. UTII cannot be used in wholesale trade.

A single tax on imputed income can be applied to retail trade. And payers of UTII trading at retail, when selling goods to legal entities, may be required to pay taxes under the general taxation system, if any transaction is attributed to the inspectors to wholesale trade. This is exactly what we will talk about in this article - when sales to legal entities are safe for “scammers”, and when not. What you need to pay attention to the UTII payer and how to insure yourself in case of questions from inspectors.

What kind of trade is retail under UTII

You can pay a single tax on imputed income if you are a retail trader. Wholesale sales are not transferred to this special regime (sub. 6 and 7 st. 346.26 of the Tax Code of the Russian Federation).

Accordingly, the first and key question to which you need to know the answer is: how does retail trade differ from wholesale? Article 346.27 of the Tax Code of the Russian Federation says that retail trade includes activities that are carried out under retail sales contracts. That is, the key point is the execution of a retail contract.

Home hallmark retail contract is the purpose of further use of goods by the buyer. So, under a retail contract, you can sell goods only for personal use, not related to commercial activities(Clause 1, Article 492 of the Civil Code of the Russian Federation).

And here it does not matter to whom exactly you are selling - to an individual or a legal entity. This conclusion was made by the Ministry of Finance of Russia in its letters dated 07.24.2013 No. 03-11-11/29238 and dated 07.22.2013 No. 03-11-06/3/28611. Similar information is given in paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 05, 2013 No. 157. That is, the main thing is that the valuables go for personal consumption of a person or ensure the activities of a company, and not purchased for sale. Then for you the key features of the retail sales contract are preserved (clause 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 22, 1997 No. 18).

But if your buyer intends to use the purchased goods for resale (or processing with subsequent resale), then you cannot enter into a retail contract with him. In this case, it will already be a supply contract and you will lose the right to apply the “imputation” (decisions of the Federal Antimonopoly Service of the Urals District dated 06.25.2012 No. F09-5408 / 12, the Federal Antimonopoly Service of the Central District dated 08.22.2011 No. A35-6752 / 2010 and dated 22.02.2011 No. A62-1684/2010).

It is clear that you cannot control how the buyer will use the product in the future. This can only be found out by the tax authorities during counter audits. Therefore, there is a kind of presumption of innocence here.

If you have retail trade through shops or pavilions with an area of ​​​​not more than 150 square meters and you are a UTII payer, then you are not obliged to control how the buyer will use the goods (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.03.2013 No. 157). You are required to complete the transaction as a retail sale contract. And if this condition is met, how the buyer will dispose of the purchased value is his business.

What documents confirm the conclusion of a retail contract with UTII

Retail is the sale of goods only for personal consumption, and its key feature is the conclusion of a retail sale contract. How exactly should it be formatted?

In accordance with Article 493 of the Civil Code of the Russian Federation, a retail contract is considered concluded at the time of issuance of a cash receipt, sales receipt or a strict accountability form. At the same time, a written form of the contract is not required if your buyer settles at the time of the transaction (clause 2, article 159 of the Civil Code of the Russian Federation). Accordingly, if an individual buys something from you, paying in cash or with a card, this is a sign that a retail sale and purchase agreement has been concluded.

Please note that UTII payers may not apply cash register equipment when selling goods at retail (clause 2.1, article 2 federal law dated May 22, 2003 No. 54-FZ). It is enough to issue a document that confirms the payment (sales receipt, receipt, etc.), and then this should be done only at the request of the buyer.

Accordingly, the retail sales contract in this case will be concluded at the moment when you received the money from the buyer and gave him, for example, a sales receipt. But even if you do not issue any documents to the buyer at all, the retail contract will still be concluded at the time of transfer of money (Article 493 of the Civil Code of the Russian Federation).

When is it necessary to draw up a written retail sale and purchase agreement with UTII

So, if your buyer is an individual, there are no problems with documents. Another question is when, for example, a legal entity wants to purchase a product for personal consumption and pay by bank transfer. For you, the signs of a retail sale and purchase agreement in this case are preserved (letters of the Ministry of Finance of Russia dated July 24, 2013 No. 03-11-11 / 29238 and dated July 22, 2013 No. information mail Presidium of the Supreme Arbitration Court of the Russian Federation dated March 5, 2013 No. 157). However, it is necessary to conclude a retail contract in writing. Because payment does not occur at the time of the transaction (clause 2, article 159 of the Civil Code of the Russian Federation).

Specialists of the Ministry of Finance of Russia in their letters dated 09.07.2012 No. 03-11-11/205 and dated 07.03.2012 No. 03-11-11/78 remind that a retail sale and purchase agreement should not contain signs of a supply agreement . Then the sale of goods to a legal entity, including by bank transfer, will not lead to the loss of the right to pay UTII.

Information about how wholesale and retail contracts differ from each other, we have provided in the table on the right.

Also, wholesale may be indicated by the fact that you are selling goods at a price lower than that of buyers - individuals. If the specifics of the goods sold to legal entities involve their use in production (for example, food raw materials, fuel, special software etc.), then the inspectors can also consider such a supply as wholesale.

Invoice No. TORG-12 and invoice for UTII

If the buyer, being a legal entity, pays for the purchase by bank transfer, most likely, he is interested in receiving full-fledged accounting documents for the goods, for example, an invoice in the form No. TORG-12. Let's say right away - you can write it out, this will not lead to the loss of the right to apply the taxation system in the form of UTII. Since the invoice itself does not indicate the wholesale nature of the delivery. This opinion was reached by the Ministry of Finance of Russia in its letters dated 09.07.2012 No. 03-11-11/205 and dated 07.03.2012 No. 03-11-11/78. The same opinion is shared by the judges, which confirms arbitration practice(see, for example, the resolutions of the FAS of the Far Eastern District dated 05.10.2012 No. F03-3802 / 2012, the FAS of the East Siberian District of 10.11.2009 No. A33-2713 / 2009, dated 06.25.2009 No. A19-12740 / 08 and the FAS of the Volga district of July 9, 2009 No. A72-7445 / 2008).

Differences between wholesale and retail contracts of sale

As for invoices, it is better not to issue them. After all, then you, firstly, will have to pay VAT to the budget, and after the end of the quarter, file it tax return, moreover, pay attention (clause 5 of article 173 and clause 5 of article 174 of the Tax Code of the Russian Federation).

And, secondly, the presence of invoices issued will give inspectors more reason to doubt that you are maintaining such a tax regime for this transaction as a taxation system in the form of UTII. After all, "sponsors" are not VAT payers. So, if you charge this tax on the sale, we can assume that this deal is not retail. Although the auditors, of course, will have to prove this fact in court. However, if you do not want such proceedings, you do not need to issue invoices to buyers - legal entities.

After all, the more signs of a wholesale sale the transaction you concluded carries, the more opportunities the tax authorities have to recognize the application of the taxation system in the form of UTII as unlawful. Then you will have to prove your case in court, but the judges will consider all the circumstances in the aggregate, and the tax authorities can win such a dispute. This is confirmed and judicial practice(for example, resolutions of the Federal Antimonopoly Service of the West Siberian District dated January 31, 2013 No. A75-10108/2011, the Federal Antimonopoly Service of the Volga District dated December 20, 2012 No. 65-9622/2012 and the Federal Antimonopoly Service of the Central District dated April 25, 2012 No. A08-5141/2011).

If the organization-buyer concludes a written contract of sale with the seller on UTII, then tax risks(requalification of a retail contract into a supply contract) arise from the seller. In this case, the buyer does not have any tax risks.

The Tax Code of the Russian Federation does not establish for sellers selling goods the obligation to control how the buyer will use the purchased goods (for business or for personal, family, home or other use). At the same time, if the goods are obviously not intended for personal use, then when selling them, the selling organization must pay taxes under the general or simplified taxation system.

Thus, the seller's requirement to indicate in the contract the purpose of using the sold goods will not protect him from possible claims from the inspectors.

Does the application of UTII depend on the purpose of purchasing goods, the category of buyers and the composition of shipping documents drawn up by the seller. The organization is engaged in retail trade and meets the criteria of chapter 26.3 of the Tax Code of the Russian Federation.

The use of UTII depends on the purpose of purchasing goods and does not depend on the category of buyers and the composition of shipping documents.

One of the conditions for the application of UTII in relation to retail trade is the conclusion between the seller and the buyer of a retail sale contract (Article 346.27 of the Tax Code of the Russian Federation). The main characteristic of such an agreement is the sale of goods for personal, family, home and other use not related to entrepreneurial activity (clause 1, article 11 of the Tax Code of the Russian Federation, article 492 of the Civil Code of the Russian Federation). The retail sale and purchase agreement is public (clause 2, article 492 of the Civil Code of the Russian Federation), therefore it is not concluded in writing. According to Article 493 Civil Code In the Russian Federation, such an agreement is considered concluded from the moment when the seller issues to the buyer a cash (sales) receipt or other document confirming payment for the purchased goods.

The Tax Code of the Russian Federation does not oblige sellers to control the subsequent use of the purchased goods by the buyer (Letters of the Federal Tax Service of Russia No. ShS-17-3/1540, No. GI-6-22/31). Therefore, from the norms of legislation listed above, it follows that any individual (including an entrepreneur or representative of an organization) who purchases goods at a retail outlet can be a buyer under a retail sale and purchase agreement. The category of the buyer does not affect the possibility of applying UTII by the seller. The legitimacy of this conclusion is confirmed by the letters of the Ministry of Finance of Russia No. 03-11-11/107, No. 03-11-11/144, No. 03-11-09/38, the Federal Tax Service of Russia No. GI-6-22/31 and arbitration practice (see. , for example, the definition of the Supreme Arbitration Court of the Russian Federation No. VAS-16354, the decisions of the FAS of the Ural District No. F09-2292 / 09-S2, the North-Western District No. A56-37983).

However, in some clarifications, the Ministry of Finance of Russia warns that the seller must take into account the specifics of the goods being sold and assess the possibility of their use for personal purposes (letters No. 03-11-11/6, No. 03-11-11/119, No. 234). And if the goods are obviously not intended for personal use (for example, special trade, jewelry, dental, cash equipment), then when selling it, the organization must pay taxes under the general or simplified taxation system.

If a retail trade organization sells goods on the basis of supply contracts, then such activities are not transferred to UTII (paragraph 12 of article 346.27 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia No. 03-11-11 / 107, No. 03-11-09 / 38). Unlike retail sale and purchase agreements, a supply agreement is not public, therefore such an agreement is concluded in writing. It details the obligations of the parties, the deadlines for their fulfillment, requirements for the range and quality of goods, mutual guarantees, force majeure and other conditions provided for in Chapter 30 of the Civil Code of the Russian Federation. If retail trade organization a supply contract is concluded, a retail sale and purchase transaction is not considered and is not subject to UTII. In this case, the organization must accrue taxes on the income received from sales under the general taxation system or under simplified taxation. This is stated in the letters of the Ministry of Finance of Russia No. 03-11-11 / 107, No. 03-11-11 / 44 and the Federal Tax Service of Russia No. ShS-22-3 / 144. The same position is reflected in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 5566.

One of the criteria that makes it possible to distinguish a retail trade transaction from a wholesale one is the contract concluded between the buyer and the seller. The presence of a written supply agreement excludes the possibility of applying UTII in relation to a transaction made on the basis of this agreement. The composition of the documents that accompany the transaction (cash receipt, sales receipt, invoice, waybill) is not the basis for recognizing it as retail or wholesale. This is stated in the letter of the Ministry of Finance of Russia No. 03-11-11 / 144. The financial department comes to this conclusion based on a number of court decisions (see, for example, the decisions of the Supreme Arbitration Court of the Russian Federation No. VAS-13465, No. VAS-16354, the decisions of the FAS of the East Siberian District No. A33-2713, No. A19-12740, the Volga District No. A72-7445, Northwestern District No. A56-37983, Ural District No. F09-3314/09-C2, No. F09-6446/08-C3). However, earlier the position of the regulatory agencies on this issue was different. Some letters said that the execution of the delivery contract by the seller (i.e., the wholesale nature of the transaction in relation to which UTII is not applied) is evidenced by the execution of waybills and invoices (letters of the Ministry of Finance of Russia No. 03-11-04 / 3/375 , No. 03-11-04/3/314, No. 03-11-05/9, No. 03-11-04/3 and Federal Tax Service of Russia No. ШС-17-3/1540). At the same time, in arbitration practice there were examples of court decisions that supported this point of view (see, for example, the decision of the Supreme Arbitration Court of the Russian Federation No. VAS-13442, the decisions of the FAS of the East Siberian District No. A33-19037, the Ural District No. F09-4000 / 10-C2 ).

The conclusion about the possibility of using UTII when selling goods to legal entities is contained in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 1066. Moreover, according to the Presidium of the Supreme Arbitration Court of the Russian Federation, in the absence of a supply contract, neither the category of buyers, nor the composition of the shipping documents, nor even the purpose of purchasing goods do not limit the right of a retail organization for the payment of UTII. With the issuance of this ruling, it should be expected that arbitration practice on the issue under consideration will become uniform.

The organization, to ensure its activities, wants to purchase office equipment from a seller who sells goods at retail.

In this case, neither the delivery nor the usual sale is not suitable.

This follows from paragraph 3 of paragraph 5 of Resolution No. 18.

It contains two conditions for the relationship of the parties to fall under the rules on retail sale:

1) the buyer purchases goods to ensure his activities as an organization or a citizen-entrepreneur (office equipment, office furniture, Vehicle, materials for repair work etc.);
2) the seller carries out entrepreneurial activities in the sale of goods at retail.

This also depends on tax consequences for sellers who are UTII payers (Chapter 26.3 of the Tax Code of the Russian Federation). Tax inspections during inspections, they often do not take into account the clarifications made in Decree No. 18, and unreasonably charge additional personal income tax, unified social tax, VAT, as well as penalties and penalties.

Example from practice: the court recognized the decision of the Federal Tax Service Inspectorate on the additional assessment of taxes, penalties and fines as invalid, since the entrepreneur sold goods through retail stores. outlets for their own needs and to ensure the activities of buyers.

Individual entrepreneur E. (seller) was engaged in the sale of lighting fixtures and furniture through retail outlets.

The seller sold the goods to 32 legal entities and two individual entrepreneurs.

The Inspectorate of the Federal Tax Service (Inspectorate) conducted an on-site tax audit of the seller on the correctness of the calculation, payment and transfer of taxes and fees. As a result, a decision was made to charge additional personal income tax, unified social tax, VAT, as well as penalties and the corresponding amounts of penalties.

The seller contacted court of Arbitration with a statement to invalidate the decision of the inspection, as he was a UTII payer.

The court found that E. sold the goods (tables, chairs, chandeliers, mirrors, cable, battery) through retail outlets for his own needs and to ensure the activities of buyers. At the same time, the goods were purchased in small quantities (several pieces).

Referring to paragraph 5 of Decree No. 18 and the norms of the Tax Code of the Russian Federation, the court concluded that “the activity of an entrepreneur in selling goods to these buyers relates to retail trade and is subject to a single tax on imputed income.”

The decision of the inspection was declared invalid (decree of the Federal Antimonopoly Service of the Volga-Vyatka District in case No. A79-3923).

However, this does not mean that the seller will control how the buyer uses the purchased goods. He has no such responsibility.

An example from practice: the court declared the decision of the Federal Tax Service Inspectorate on additional taxation to be invalid, since the activity in the sale of goods belongs to the retail trade, regardless of which category of buyers they are sold.

Individual entrepreneur S. (seller) through a retail store sold building goods to individuals and legal entities, as well as entrepreneurs. He qualified this activity as retail trade, in respect of which he applied a special tax regime in the form of UTII.

The Interdistrict Inspectorate of the Federal Tax Service (inspectorate) reclassified the activity carried out by the seller. She attributed the sale of building goods to individuals to retail trade (taxable to UTII), and the sale of the same goods to legal entities and entrepreneurs to wholesale trade (subject to taxes under the general taxation system).

As a result, the inspectorate charged additional taxes to the seller under the general taxation system, charged penalties and fines. The seller applied to the arbitration court with an application to recognize the decision of the inspection as invalid.

The courts of appeal and cassation denied the seller's claim. At the same time, they proceeded from the fact that “the main criterion to distinguish retail from wholesale is the ultimate purpose of using the goods purchased by the buyer: for personal, family, home or other non-business use, or for the use of goods for the purpose of doing business". Since "construction goods were purchased ... for their own needs and for the implementation of statutory activities," this "indicates ... the wholesale nature of trade."

The Presidium of the Supreme Arbitration Court of the Russian Federation noted that the Tax Code of the Russian Federation “does not establish for organizations and individual entrepreneurs selling goods, the obligation to exercise control over the subsequent use by the buyer of the purchased goods. One of the main conditions that make it possible to apply the taxation system in the form of a single tax on imputed income to retail trade is the implementation of this activity through the objects of stationary and (or) non-stationary trading network provided for by subparagraphs 6 and 7 of paragraph 2 of Article 346.26 of the Tax Code of the Russian Federation. Thus, the trade activity carried out by the entrepreneur construction goods... both for cash and non-cash payments under retail sales contracts, regardless of which category of buyers (individuals or legal entities) they are sold, refers to retail trade and is subject to a single tax on imputed income.”

The court granted the seller's claim (Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 1066).

The Federal Antimonopoly Service of the Volga District, when considering a similar dispute, compared the provisions of paragraph 1 of Article 492 and Article 506 of the Civil Code of the Russian Federation and emphasized: “It follows from the above norms that the sign that makes it possible to distinguish a retail sale from a delivery is the ultimate goal of using the purchased goods by the buyer. However, when selling a product, it can be problematic to control the purpose of using the purchased product. In particular, the above applies to the case when the goods are purchased in small quantities and used by the buyer both for personal needs and for business purposes” (judgment in case No. A12-19864). The court also referred to the above conclusions made by the Presidium of the Supreme Arbitration Court of the Russian Federation, and noted that the tax authority had to prove the fact that the seller was engaged in wholesale rather than retail trade.