In one of our earlier materials, among other tax risks for producers of alcoholic beverages, we focused on the risk associated with limiting the excise tax deduction to the limits of technological losses and natural loss.
Developing the idea of the relevance of this risk and the variability of situations triggering this risk, it is worth paying attention to the dispute between LLC "Omskvinprom" and the tax authorities (case No. A46-16613/2020).
The background of .
The Company, being a producer of alcoholic beverages, for several years reflected in the losses within the norm (without specifying the nature of the losses):
- the amount of ethyl alcohol obtained in the production of morses by extracting it from alcohol-containing raw materials;
- the quantity of anhydrous alcohol transferred for laboratory testing.
The taxpayer reflected the specified amount of alcohol in the revised tax declarations for excise duties as the actual losses of purchased alcohol admitted at the end of the tax period.
Tax Authority by the results of field tax audit among other things additionally charged the Company more than 30 million rubles of excise tax and penalties, arguing that this fact is that the taxpayer in violation of paragraph 12.1, subparagraph 2 of paragraph 13 of Article 204 of the Tax Code:
- reduced the amount of excise duty on technological losses in excess of the norms of natural loss attributable to the amount of alcohol evaporated from spent raw materials and anhydrous alcohol transferred to the laboratory;
- did not unreasonably calculate excise duty on them.
Position of a taxpayer
In the process of appealing the tax claims in the courts of three instances, the Company stated the following arguments:
1. The losses incurred are technological losses incurred in the production process, unlike natural loss, and therefore their volume is subject to separate exclusion from the taxable base independently and separately from natural loss.
2. the Company was lawfully guided by independently established norms of losses, because:
- the rationing of actual losses for excise taxes at the federal level is not provided for by law;
- the standards are set only in relation to natural loss, not technological loss;
- the legislation does not contain a prohibition on the independent establishment of standards of actual (including technological) losses.
3. In the production of products actual losses were incurred, including technological losses which are not directly natural loss, and the provisions of paragraph 12.1 of Article 204 of the Tax Code do not provide for the possibility of reducing the advance payment only within the limits of natural loss norms.
4. Tax legislation contains the term "technological losses", which means that it recognizes their existence and allows them, and the absence of normative limits of such losses gives the taxpayer the right to reduce the tax base by them in full.
Position of the courts
The courts of the first, appellate and cassation instances, refusing to satisfy the taxpayer's claims, noted the following:
1. In determining the amount of fulfillment of obligations secured by a bank guarantee, the taxpayer's obligations to calculate the advance payment shall be reduced by actual losses only to the extent of natural loss norms approved by the authorized federal executive body.
2. The actual transfer of the amount of anhydrous alcohol for laboratory testing does not relate to the norms of natural loss of ethyl alcohol.
3. The provisions of Article 204 of the Tax Code oblige the taxpayer to calculate tax liabilities in accordance with the formula set out in that Article, which is used to determine the amount of actual performance of obligations secured by a bank guarantee for the payment of advance payment.
4. The taxpayer has the right to exclude from the taxable base any losses incurred in the production process, including in their combination with natural loss, but only within the established norms in accordance with Article 204 of the Tax Code.
5. It follows from the meaning of Article 204 of the Tax Code that the legislator, having established the procedure for determining tax liabilities for payment of excise duty, does not separate types of losses as technological and natural loss in order to account for actual losses, defining for them in any aggregate a single norm, called the norm of natural loss.
6. The tax legislation does contain the term "technological losses", but technological losses are established by the legislator as influencing the determination of tax liabilities strictly in the cases specified by it. The legislator (both in the presence of a bank guarantee and in payment of advance payments) establishes the right not to pay excise tax on losses within the limits of the norm of natural loss.
Subsequently, the Supreme Court of the Russian Federation by Decision No. 304-ES21-22130 dated 01.12.2021 refused to transfer the case to the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation.