Merchandising: tax and accounting aspects. Expenses for merchandising activities and income tax (Anischenko A.) ​​Is vat subject to merchandising services

Question

Please tell me how to carry out the document, act and invoice for services for guaranteed placement in the trading floor of the entire range of goods of the supplier. (amount with VAT 18%)
We- trade Organization, we supply goods for Crocus City, the contract stipulates the conditions for the service of guaranteed placement of our goods in the trading floor.
What are the postings? how to accept expenses and VAT.

Answer

The VAT amounts presented to the organization by the contractor for the services for the placement of goods (Merchandising) are subject to deduction after the registration of these services, as well as in the presence of correctly completed invoices of the contractor (clauses 1, 2, Article 171, paragraph 1, 2 p. 1 art. 172 Tax Code RF).

If, in accordance with Ch. 25 of the Tax Code of the Russian Federation, these expenses are of an advertising nature and are accepted for the purposes of taxation of profits in accordance with the standards, then the amount of VAT on such expenses is subject to deduction in the amount corresponding to the specified standards. This follows from par. 2 p. 7 art. 171 of the Tax Code of the Russian Federation.

The accounting entries will be as follows:

D 44 K 60 - Reflected the costs of guaranteed placement of goods (Merchandising)

D 19 K 60 - Reflected the amount of VAT presented by the service provider

D 68 K 19 - VAT charged is accepted for deduction

D 90-2 K 44 - The costs of guaranteed placement of goods (Merchandising) are written off to the cost of goods sold

D 60 K 51 - Funds were transferred to the seller of the goods

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Document:

Merchandising and its reflection in tax accounting

Among the expenses dearly loved in business environment, a special place is occupied by the costs of merchandising. Such expenses can be quite a decent amount and be made on an ongoing basis (that is, from month to month); at the same time, it is difficult for inspectors to control the reality of receiving such services, as well as the adequacy of pricing.

What is merchandising?

State Committee for Entrepreneurship in a letter dated 08.12.2009, No. 15041, referring to Great encyclopedia Cyril and Methodius, defined merchandising as a type of marketing that promotes intensive promotion of goods in retail without active participation special staff (for example, skillful placement of goods in the sales area, original design of counters and shop windows, organization of presentations with the distribution of souvenirs, provision of discounts and benefits).

In turn, the State Tax Administration (see letter dated 28.01.2010, No. 806/6 / 23-4016 / 40) understands merchandising as a new direction of trade marketing, covering primarily:

Display and placement of goods at the point of retail sale;

Providing an appropriate assortment and sufficient quantity of goods;

Organization of local advertising, for example: the installation of special branded equipment at a point of sale (refrigerators, displays, racks, shelves, etc.), presentation structures (pedestals, exhibition stands, advertising stands, stands for advertising materials, etc.), placement of printed advertising products (booklets, posters, garlands, flags, etc.), organization of promotions at the point of sale in the form of tastings, free distribution, etc .;

Analysis of sales figures;

Solving certain issues of pricing policy on the maximum trade markup;

Sellers briefing retail stores regarding the consumer characteristics of the product, methods of motivating consumers.

It should be noted that the STAU took a rather strange position regarding the tax accounting of merchandising costs. So, in a consultation in the "Bulletin tax service Ukraine "№ 37/2007, the taxpayer was allowed to include in the gross costs" the cost of promoting goods on the market, pre-sale preparation and placement (display) of goods on showcases and special structures<...>(provided that this item sold (provided) by such a payer) ”.

But in the above-mentioned letter to the State Tax Administration of 01/28/2010. No. 806/6 / 23-4016 / 40 when organizing tax accounting for such expenses, it was suggested to be guided by the "marketing" letter dated July 29, 2008, No. 15176/7 / 15-0217, which sets out the following position of the tax authorities:

«<...>marketing costs are included in gross costs only if they correspond to the costs of presale and promotional activities specified in subparagraph 5.4.4 of paragraph 5.4 of Art. 5 of the Law [On Profit] (in particular, services for the placement of products at points of sale, services for cleaning, packaging, prompt replenishment of the volume of goods on the shelves, placement of information about the product, etc.).

At the same time, in accordance with the specified subparagraph of the Law, the taxpayer has the right to include in the gross costs the marketing expenses for goods (works, services) that are sold (provided) by such a payer. That is, these expenses should be directly related to the economic activities of the taxpayer. "

The main problems that this position creates:

1) reduction of marketing (including merchandising) services to expenses for pre-sale and promotional activities. As a result, a specific taxpayer is potentially threatened by a discussion with the inspector about how the pre-sale advertising services received by him are and whether they really fit into the framework of the p / n. 5.4.4 of the Law on Profits;

2) following from p / p. 5.4.4 of the Law on Profits, the recognition of gross costs at the customer only if marketing (including merchandising) services are provided for the goods that are sold by such customer. This condition - with its fiscal interpretation - creates problems when working with large trade (retail) networks: as a rule, such networks provide marketing services to their suppliers when retail goods in chain stores (the ownership of such goods no longer belongs to the supplier, the retailer).

Previously, we recognized that such services are undoubtedly related to the business of the supplier (they are carried out in connection with the sale of his goods and are ultimately aimed at increasing his income); therefore, the corresponding costs should be included in gross costs. In addition, it is obvious that p / p. 5.4.4 of the Law on Profits can also be understood non-fiscally: services must relate to goods that, in principle, are sold by the payer; sequence (first services - then sale, or first sale - then services) and tax periods of transactions do not matter.

Nevertheless, we assumed that the gross expenditure of such services could be questioned by the tax authorities: they say that the ownership of goods has passed from the supplier to the retailer - therefore, services are paid for promoting not their own, but other people's goods. The above letters and consultations of the State Tax Administration, as well as the practice of on-site inspections, confirmed the relevance of our assumptions.

In such a situation, the disputes were naturally transferred to the courts. So, in the decision of the District Administrative Court of Kiev from 21.11.2008, No. 10/410, a progressive conclusion was made that the Law on Profit, as well as others regulations do not indicate that pre-sale costs should only be incurred in relation to goods that are the property of the taxpayer. Services provided by supermarkets (marketing services, services for promoting goods in retail chains, services for adding new products to the assortment list of goods, services for organizing the sale of goods, services to stimulate demand, merchandising services) directly influenced the supplier's performance and were aimed to receive income.

Of particular interest for amateurs of merchandising is the definition of Wadsud dated 08.04.2010 No. К-16160/07. As follows from the definition, Wadsud agreed that services for promoting goods on the market, delivering goods, ensuring standards, placing goods in retail outlets are related to the business activities of the supplier (manufacturer of products and wholesaler) and are considered his pre-sale and promotional activities. Such services ensure the demand for these goods, and therefore provide the supplier with income in the future. At the same time, the gross costs of presale and advertising costs do not depend on the ownership of the goods at the time of receiving the services - it is only important that the given goods are sold by such a supplier.

In other words, Wadsud agreed with the STAU that merchandising services are included in the gross costs on a p / p basis. 5.4.4 of the Law on Profits. However, firstly, the court demonstrated a broad understanding of pre-sale and promotional activities (see the list of services provided under the agreement between the plaintiff and the distributor, cited in the definition), and secondly, it rejected the fiscal interpretation of the structure used in p / p. 5.4.4 ("in relation to goods (works, services) sold (provided) by such a payer"). The court did not agree that the goods in respect of which pre-sale and advertising services are provided should at that moment be the property of the payer; if such goods have ever been sold or will be sold by such a payer, then this is sufficient to include such costs in gross costs *.

We hope that this position of Wadsud concerns not only “Oleina” (see the text of the definition) and will be of a general nature.

_________________

* By the way, this definition(if his ideas are creatively developed) opens up the opportunity for commission agents / attorneys to include in the EO the costs of pre-sale preparation and promotional activities. Recall that the tax authorities unreasonably denied the costs in this situation, citing the lack of ownership of the goods by the intermediaries (see the letter of the State Tax Administration in Kiev dated 12.04.2006, No. 244/10 / 31-106).

In the Letter of the Ministry of Finance of Russia dated April 22, 2015 N 03-03-06 / 22913, financiers explained the procedure for tax accounting of merchandising costs. In the trade marketing system, this is a set of measures aimed at increasing sales in retail. Merchandising develops the popularity of brands by influencing the consumer. This impact consists in carrying out special work on the placement and display of goods, creating it effective stock and the design of points of sale. These events expand the number of buyers of a certain brand by stimulating the desire of the end consumer to choose and buy the promoted product, as well as highlighting products relative to competitors.
A manufacturer, distributor and retailer are involved in organizing merchandising. The manufacturer's task is to create products of a certain brand, to promote them on the market, improving the packaging and assortment, to stimulate the buyer, creating a positive image of the product (its popularity, usefulness, etc.). The distributor ensures the constant presence of goods in trading network... A retailer directly sells these products to the consumer, while, together with the manufacturer and the wholesaler (or independently), makes the layout and design the placements of the brands in such a way as to attract additional attention of the end customer and encourage him to purchase.
Who exactly applied to the Ministry of Finance for clarification, the Letter does not say. But from its content, we can conclude that we are talking about the costs of the manufacturer.
How can he qualify and take into account such costs for the purpose of taxing profits? Since we are talking about attracting the attention of the buyer, then we can say that we are talking about advertising costs. But the main difference between merchandising and ordinary advertising is that the stimulation of the purchase occurs imperceptibly for the consumer himself. The impact in this case is not on the consciousness, but on the subconscious of the buyer.

It all started with a negative

Initially, officials were negative about merchandising. Rather, not to this phenomenon itself, but to the costs arising from this.
So, for example, in the Letters of the UMNS of Russia in Moscow of 16.09.2003 N 26-08 / 50782, of the Federal Tax Service of Russia in Moscow of 27.01.2006 N 20-12 / 5532 and of 04.05.2006 N 20-12 / [email protected] the tax authorities decided that such costs cannot be taken into account in tax expenses as economically unreasonable.
The point is as follows. In accordance with Art. 506 of the Civil Code of the Russian Federation, under a supply agreement, a supplier-seller engaged in entrepreneurial activity undertakes to transfer, within a specified period of time, the goods produced or purchased by him to the buyer for use in entrepreneurial activity or for other purposes not related to personal, family, household or similar use.
According to Art. 494 of the Civil Code of the Russian Federation, displaying goods at the point of sale (on counters, in showcases, etc.), demonstrating samples or providing information about the goods being sold (descriptions, catalogs, photographs of goods, etc.) at the points of sale are recognized public offer under a retail sales contract.
Based on this, the tax authorities decided that it was economically unreasonable to pay retail for what it was already obliged to do. Why would a store buy a product for retail at all if the store will not advertise it for sale to customers?

Gradual recognition

Nevertheless, merchandising has lived, is alive and, most likely, will continue to live. It is impossible to deny the obvious. Therefore, in the end, the officials backtracked (Letters of the Ministry of Finance of Russia dated 02.04.2008 N 03-03-06 / 1/244 and dated 27.04.2010 N 03-03-06 / 1/294).
But financiers see merchandising more narrowly - as an element of advertising. According to Art. 3 Federal law dated 13.03.2006 N 38-FZ "On Advertising" advertising is information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the advertised object, generating or maintaining interest in it and its market promotion.
Officials agree that, according to the Constitution of the Russian Federation (part 1 of article 8), only the taxpayer himself can decide for himself whether the expenses made by him are effective and expedient. In this case, the tax authorities, in turn, have the right to prove that such costs are economically unjustified.
If the taxpayer believes that he needs merchandising as advertising, he can use the provisions of Art. 779 of the Civil Code of the Russian Federation and conclude with the object retail contract for the provision of services for a fee. This article establishes that under a contract for the provision of services for a fee, the performer undertakes to provide services on the instructions of the customer, and the customer undertakes to pay for these services.
If the purpose of the conclusion onerous contract on the provision of merchandising services are actions of a retailer aimed at attracting the attention of potential buyers to the supplier's goods by using special display technologies, therefore, such actions can be considered as advertising services.
And here it must be remembered that the costs of this kind of services should be taken into account in tax expenditures within the limits of the standard established by paragraph 4 of Art. 264 of the Tax Code of the Russian Federation, that is, no more than 1% of revenue.

Judicial hesitation

Judicial practice regarding marketing costs is mixed.
There are at least two court decisions (Resolutions of the Federal Antimonopoly Service of the West Siberian District of 06.08.2008 N F04-4721 / 2008 (9200-A46-40), F04-4721 / 2008 (10739-A46-40) in case N A46-5896 / 2007 and the Federal Antimonopoly Service of the Volga District of September 16, 2008 in case N А49-395 / 08), in which the judges considered that the costs of merchandising can be taken into account in tax expenses in full, since merchandising services cannot be attributed only to advertising elements. It should be specially noted that the first of the cases was supported by the Decision of the Supreme Arbitration Court of the Russian Federation of 11.02.2009 No. VAS-15731/08.
Contrary to custom, this determination by the highest court did not have much influence on further decisions of the courts. So, in the Resolution of 06.04.2011 N КА-А40 / 2665-11, the judges agreed with the qualification of the costs of displaying goods as advertising and that they are normalized for the purposes of taxation of profits.
So arguing with officials is probably not worth it, unless, of course, we are talking about some fabulous sums. But the outcome of the court session, as we see, cannot be predicted.

Accounting

The costs in question relate to the costs of the usual activities of the manufacturer of goods in accordance with clause 5 of PBU 10/99 "Organization costs" (approved by Order of the Ministry of Finance of Russia dated 06.05.1999 N 33n). Such expenses should be reflected in accounting on account 44 "Sales expenses".
The costs of performing a set of merchandising activities should be reflected in accounting in the reporting period in which they occurred, regardless of the time of actual payment Money and another form of implementation. This is the requirement of clause 18 PBU 10/99.
Merchandising expenses are the commercial expenses of the manufacturer and, therefore, can be recognized in the cost of goods, goods, works, services sold in full in the reporting year of their recognition as expenses for ordinary activities (clause 9 of PBU 10/99).

Example. JSC "Svoyak" produces alcoholic beverages. When introducing Rodnaya Storona JSC into the retail network, the company entered into an agreement in May 2015 for the provision of merchandising services from June 1, 2015. Simultaneously with New Design, an agreement was concluded for the provision of services for the development of merchandising activities.
By virtue of these agreements, LLC "New Design" directly in the retail trade network of JSC "Rodnaya Storona" will develop a set of measures that this company will carry out to maximize the turnover of JSC "Svoyak" products in this trade network.
JSC "Svoyak" pays for the services of JSC "Rodnaya Storona" for the implementation of the developed measures. The cost of its services was estimated by New Design LLC at 300,000 rubles, including VAT of 45,762.71 rubles. The order for the development of merchandising activities was completed by May 25, 2015.
Under the agreement, Svoyak JSC pays monthly for the trading network for its services for the execution of merchandising activities. The monthly cost of such a service is 60,000 rubles, including VAT of 9152.53 rubles.
The proceeds from the sale of Svoyak JSC, determined in accordance with Art. 249 of the Tax Code of the Russian Federation, for the first half of 2015 amounted to 84,500,400 rubles. The ad spend rate calculated from 1% of this amount is 845,004 rubles.
In addition to merchandising activities, all other public advertising costs are not standardized for the purpose of calculating income tax.
Thus, for the purposes of taxation with corporate income tax for a given reporting period, the company can recognize the entire amount of merchandising costs in the standardized advertising costs, since 305,084.76 rubles. (300,000 - 45,762.71 + 60,000 - 9152.53)< 845 004 руб.
In the accounting records of Svoyak JSC, these facts of economic life must be reflected in the following entries:
Debit 60 Credit 51
- 300,000 rubles. - paid for the service of a specialized company for the development of merchandising activities;
Debit 44 Credit 60
- RUB 254,237.29 (300,000 - 45,762.71) - expenses related to the preparation of an action plan are attributed to sales expenses;
Debit 19 Credit 60
- 45,762.71 rubles. - "input" VAT is reflected;
Debit 44 Credit 60
- RUB 50,847.47 (60,000 - 9152.53) - expenses related to payment for retail network services were recognized as expenses;
Debit 19 Credit 60
- RUB 9,152.53 - "input" VAT is reflected;
Debit 68, subaccount "Calculations for VAT", Credit 19
- 54,915.24 rubles. (45 762.71 + 9152.53) - "input" VAT is attributed to settlements with the budget.

In a competitive environment, manufacturers, and trade enterprises, too, are interested that the goods they sell do not linger on the shelves for a long time, because their profit and level of profitability depend on this. Therefore, using a variety of market and marketing approaches to trade, in particular merchandising, such enterprises can significantly increase the volume of sales and at the same time have the opportunity to reflect the costs incurred in the accounting.

Definition of concepts and legal aspects

Ukrainian legislation does not directly define what merchandising is. Translated from English "merchandising" - the promotion of a product on the market. Merchandising can be considered a separate direction or tool (element) of marketing.

Depending on the target direction studies by different authors consider merchandising and new form sale of goods, and a set of actions necessary to show the goods to the buyer in the most favorable angle, and support of the goods being sold. In a general definition, merchandising is a set of activities that includes the development and implementation of methods and mechanisms, the purpose of which is to promote goods, as well as to attract buyers to a particular retail outlet, which will increase its profits.

Special literature distinguishes centralized merchandising, visual merchandising, seasonal merchandising, electronic merchandising, supplier merchandising and merchandising merchandising, etc.

Merchandising covers all aspects related to the display of goods in the sales area of ​​the store, its placement, starting with ensuring their availability in retail space, presentation of goods (layouts), emphasizing their advantages, the presence of price tags and information materials for goods and ending with the definition economic indicators, reflecting the profitability of trade in such goods, provided that a certain part of the calculation is allocated to them. Therefore, it is logical that the most effective application of merchandising will be in retail stores, supermarkets, hypermarkets, self-service stores, pharmacies, etc. That is, in those places where the buyer is with the goods, so to speak, one-on-one, without the direct participation of the seller or consultant ... On the other hand, merchandising is ineffective in the field of Internet commerce. Here its action and influence are either absent altogether, or they are very limited.

Merchandising is a complex of sales technologies that allow you to present a product potential buyer in the most favorable material and psychological conditions. Here, at first glance, different little things are important: the color of the room, lighting, grouping of goods according to certain signs or brands, prices on price tags (everyone knows the move with crossing out the old price and applying a lower one next to it), etc.

As you can see, there are many definitions and characteristics of merchandising. However, its main task and essence is how to arrange the goods in the store so that it is sold most efficiently and without the participation of the seller.

Trading companies and manufacturers incur certain costs by carrying out activities and activities related to merchandising. At the same time, they can do it both on their own (this can be done by the marketing department, and on large enterprises it is advisable to have a special department or unit for merchandising), and by involving third-party entities economic activity(which, accordingly, will provide merchandising services). In this regard, the question arises about the legal registration of receiving merchandising services. After all, as we noted above, separate form the merchandising agreement is not provided for by the current legislation... However, since in its essence merchandising is part of marketing (marketing services), it is necessary to take a service agreement as a basis. This opinion is confirmed by the letter of the State Tax Administration of Ukraine dated January 28, 2010, No. 806/6 / 23-4016 / 40, where the tax authorities explained that such relations correspond to the essence of the service contract. This means that when concluding such agreements with a counterparty, the norms of Chapter 63 of the Civil Code of Ukraine should be observed.

Tax authorities' opinion

As for the legality of agreements providing for the costs of merchandising, the main regulatory legal acts that determine the types, requirements, procedure for concluding business contracts are the Economic Code of Ukraine, the Civil Code of Ukraine.

So, in accordance with Articles 626 - 628 Civil Code Ukraine, a contract should be understood as an agreement between two or more parties aimed at establishing, changing or terminating civil rights and obligations.

The parties are free to conclude an agreement, choose a counterparty and determine the terms of the agreement, taking into account the requirements of this Code, other acts of civil law, business customs, requirements of rationality and fairness.

That is, a business entity, when concluding agreements on the provision of merchandising services, should be guided, first of all, by the aforementioned regulatory legal acts.

Letter from STAU dated January 28, 2010 No. 806/6 / 23-4016 / 40

As for the conclusion of contracts for the provision of services, Article 901 of Chapter 63 of the Civil Code determines that under the contract for the provision of services, one party (the performer) undertakes, on the instructions of the other party (customer), to provide a service consumed in the process of performing a certain action or carrying out a certain activity, and the customer undertakes to pay the contractor for the specified service, unless otherwise provided by the contract. The provisions of Chapter 63 of the Civil Code of Ukraine can be applied to all contracts for the provision of services, if this does not contradict the essence of the obligation. Also, such an agreement should provide for other significant provisions, in particular: the term of the agreement, the procedure and amount of payment, liability for violation of conditions, etc.

Accounting

Since merchandising is one of the directions (elements) of marketing, the costs associated with it (both for the merchandising services received and the company's own expenses for the merchandising operations of its division) accounted for in accounting as marketing expenses as part of sales expenses on the basis of clause 19 P (S) BU 16 1. A more detailed structure of sales costs is given in the Method recommendations No. 145 2. Note that separately the costs of merchandising in the specified regulatory documents not highlighted. They are included in marketing expenses (for example, clause 3.8 of Method Recommendations No. 145, in particular, includes expenses for window dressing, production of labels, price lists, etc., which, of course, directly relates to merchandising), or partially as part of expenses for pre-sale preparation of goods. The mentioned expenses are reflected in the expenses of the reporting period in which they were incurred (clause 7 of P (C) BU 16). Therefore, if, for example, an enterprise has its own merchandising department with a certain staff of employees, their salary, along with the corresponding accruals (ERUs), will go to account 93 as part of sales expenses.

1 Position (standard) accounting"Expenses" approved by the order of the Ministry of Finance dated December 31, 1999, No. 318.

In addition, the business may incur other costs associated with the operation of its merchandising department. So, it can be the costs of posters placed near the goods, special price tags transferred to the distributors so that the price of the goods is indicated on them, the costs of renting premises in the supermarket where the equipment is located (manufacturer or trader of goods). All these costs, according to the author, will also be reflected in sales costs. Obviously, some will notice that, for example, booklet costs can be viewed as advertising costs. We do not deny that there is a close connection between marketing, advertising and merchandising, which, in principle, is part of them. The border separating these concepts is rather narrow, therefore, in general, it can be considered that all this is marketing, that is, the sales costs of the enterprise.

Sometimes the company purchases equipment (such as OS or MNMA), which is later used to organize merchandising events (for example, refrigeration equipment so that the client can always buy a carbonated drink at the checkout or in the sales area chilled, or special trade structures to visually highlight the goods among competitors). Depreciation of such equipment will also be included in sales costs - see clause 19 P (C) BU 16.

In some cases, for merchandising purposes, enterprises transfer their equipment (their own racks, racks, refrigerators) used for placing goods for safekeeping to trade enterprises (shops, supermarkets). This is because some objects (for example, refrigeration equipment) should be looked after, but it is not always economically profitable to appoint a responsible person for this. Therefore, it is better to shift this burden to the enterprise where such equipment is located. In this case, of course, you will pay a certain amount for the placement (rent of the hall), which again will fall into the distribution costs. Usually, the transfer for safekeeping is drawn up by an appropriate agreement, and during the transfer itself, an act of acceptance and transfer is drawn up. Since the aforementioned tangible assets (in the form of fixed assets, MNMA, etc.) remain on the balance sheet of the enterprise transferring the equipment, it is it that calculates depreciation, which should be included in sales costs. Assets received for safekeeping are reflected in the off-balance sheet account 023 " Material values in safe custody ".

As we noted, the received merchandising services provided by outsiders (these can be both enterprises and entrepreneurs) will also fall into the distribution costs. In particular, entrepreneurs can provide, for example, services for displaying goods on the shelves of retail stores and retail outlets enterprises, etc.

Tax accounting

Income tax

In tax accounting, the situation is similar. GCC does not contain the definition of "merchandising". There are no costs for merchandising and as part of the costs specified in Art. 138 GCC. However, the tax authorities in the EBNZ (subcategory 110.07.20) expressed the opinion that the costs incurred for obtaining merchandising services can be attributed to the composition of sales costs as expenses for advertising, marketing, as well as pre-sale preparation of goods on the basis of para. "G" pp. 138.10.3 GCC. In addition, according to the author's conviction, the aforementioned consultation from the EBNZ confirms the right to be attributed to tax expenses and amounts for the independent organization of merchandising of their goods. Namely - expenses on the same booklets, posters, price tags, etc., as well as depreciation of fixed assets and MNMA used in merchandising promotions, are entitled to be included in tax expenses as sales expenses, wage employees involved in merchandising and accruals for such a salary. Note that, according to paragraphs. 153.4.2 GCC, if the company transfers its own fixed assets for safekeeping to trade enterprises, this in no way affects the tax accounting of both the recipient and the company providing the fixed asset 1.

Therefore, subject to the registration of all the necessary primary documents(p. 138.2 GCC) commercial enterprise can take into account such expenses in tax accounting as part of other expenses, since they are directly related to his economic activity - trade.

At the same time, if there will be a relationship with a non-resident, one should take into account the restrictions on the attribution of expenses established by paragraphs. 139.1.13 GCC. So, the expenses incurred (accrued) in the reporting period in connection with the purchase of merchandising services from a non-resident (except for expenses incurred (accrued) in favor of permanent missions of non-residents, which are subject to taxation in accordance with clause 160.8 of the Tax Code), the company has the right to take into account tax expenses within 4% of income (proceeds) from the sale of products (goods, works, services) (net of VAT and excise tax) for the year preceding the reporting year. If such a non-resident has an offshore status, such expenses are not included in tax at all. At the same time, one should not forget about the so-called repatriation tax, which must be paid when paying income to a non-resident in accordance with Art. 160 NKU 2.

The specified expenses as part of sales expenses fall into other expenses, which are recognized as expenses of the reporting period in which they were incurred (clause 138.5 of the TCU). In the income tax declaration 3, they should be reflected in line 06.2.

On the other hand, an enterprise may provide merchandising services to other business entities. Accordingly, during the period of signing the act with the customer, such a contractor must recognize income both in accounting (clause 12 of P (C) BU 15 4) and in tax (clause 137.1 of the GCC). All expenses directly related to the provision of merchandising services will be included in the cost of the services provided (clause 11 P (C) BU 16 and clause 138.8 of the GCC).

Value added tax

As for VAT, it works here general rule: in the presence of a duly executed tax invoice (clause 198.6 of the GCC) and (if necessary) registered in the Unified Register (clause 201.10 GCC), the enterprise is the recipient of merchandising services (or goods / works / services related to the organization of merchandising by the enterprise itself) will be eligible for a VAT tax credit. And, of course, such goods, works / services must be used in taxable transactions within the framework of economic activity. Since, as we have noted, merchandising is part of marketing, in case of receiving merchandising services from a non-resident, the object of VAT taxation does not arise... Indeed, in accordance with clause 186.4 of the GCC, the place of delivery of such services will be the place of registration of the supplier of merchandising services. It should be borne in mind that paragraphs 186.2 and 186.3 of the GCC do not directly contain the specified services (neither merchandising, nor marketing). 5

If, on the contrary, a Ukrainian company provides such services, it turns out that VAT exemptions arise in any case, regardless of the status of the recipient. A similar point of view of the tax authorities is set out in the EBNZ (subcategory 130.05), which states that "The transaction for the supply of marketing services by a VAT payer is subject to VAT, regardless of who they are provided to, a resident or non-resident."

Example 1 The enterprise - manufacturer of non-food products "Alpha" has a merchandising department in its structure.

In order to increase sales in the current period, the following expenses were incurred:

- new price tags were ordered, as well as photos of commercial samples in the amount of UAH 12,000 (including VAT). Price tags and photos will be used in merchandising events;

- received merchandising services from a legal entity (in particular, a professional display of goods was ordered on the shelves of all points of sale of the company's products in supermarkets outside the region of production in the amount of UAH 36,000 (including VAT);

Officials indicate that the costs of the supplier for the services of stores for the priority display of goods are accounted for as advertising costs within 1 percent of the company's revenue. Some judges agree that such costs are counted as advertising. However, the majority considers these costs to be other expenses and recommends that they be taken into account in full.

Stanislav Dzhaarbekov,
partner of the company "MCFER-Consulting", certified auditor

One of the problems with advertising spending is that some of these expenses are rationed at 1 percent of sales revenue. Moreover, in the author's opinion, the composition of the standardized costs was determined unsuccessfully. It is not clear why you need to limit your ad spending. As you know, advertising is the engine of trade. Accordingly, than more expenses on advertising, the more income and the higher the tax base.

The problem of limiting advertising costs is as follows: it establishes a list of advertising costs, both standardized and taken into account in full. However, the line between advertising and other promotional costs is very thin. In this regard, controllers often attribute to advertising costs that which is not advertising. In such situations, such expenses fall under regulated advertising (since they are on the list irregular expenses no advertising).
A similar situation has developed with regard to the costs of priority display of goods (merchandising).

We believe that here you need to figure out what merchandising is - is it advertising or not?
The essence of merchandising (priority display of goods) is that the performer (retail store) places the supplier's goods in the most visible and convenient display places for the buyer, which increases the likelihood of purchasing the goods.

Thus, advertising is primarily information about a product.
The meaning of the priority display is not in the dissemination of any additional information about the product, but in the fact that the product is placed in a more visible and convenient place for purchase. trading floor... The author believes that the priority display is a product promotion service, it is not an advertisement, since it does not carry additional information about the product.

Along with the priority display, the retailer may display product information for customers. Such Additional Information can be recognized as advertising, and then the service provided by the performer includes priority display services (merchandising) and advertising services. But such advertising is recognized as an expense without limitation as a window dressing service.

Judicial practice generally adheres to the approach that priority display services are not recognized as expenses for standardized advertising, but are other expenses that are taken into account without limiting the amount.

Thus, the judges of the FAS of the Moscow District considered the following situation.
The store provided the public with services related to special display, and services related to the allocation of taxpayer products by providing shields (shields for placing visual aids about the product), which are placed in places where goods are displayed, indicating that it is in this place that the products of the taxpayer are located.

Dispute between tax office and the taxpayer was just on the issue in question: is merchandising a regulated advertising or other expenses for product promotion?

The judgment was in favor of the taxpayer. At the same time, in its decision, the court noted that services for the priority display of goods are subject to full accounting as part of other costs associated with production and (or) sale, since they are not recognized as advertising in relation to the provisions.

Services for the placement of billboards (billboards for placing visual aids about the product) and price tags in places of special display are services for the design of points of sale of goods with advertising materials (window dressing). Such services are also taken into account for the purposes of taxation of profits in full.

It is worth noting that the display of the goods involves the placement of the goods itself at the points of sale, but the buyer does not receive additional information about the product or its manufacturer as a result of the display of the goods. Any information is contained only on the packaging of the product. In turn, the information contained on the packaging is not an advertisement in itself.

The purpose of advertising is to generate or maintain interest in the advertised persons, their type of activity, goods, ideas and undertakings, as well as to promote the sale of goods, ideas and undertakings. At the same time, the purpose of placing information on the packaging of the goods is to provide the buyer with information about the consumer properties of the goods, its purpose, composition, storage conditions, date and place of manufacture and packaging, etc.

The provision of this information, as well as other information containing the main characteristics of the goods and its purpose, is the responsibility of the seller in order to ensure the possibility the right choice goods by consumers. Thus, the identification of the information placed on the packaging with the advertising of the goods contradicts the goals and essence advertising activities.

In another decision, the judges of the FAS of the Moscow District also note that the display of the goods represents a certain location of the goods themselves in the places of their sale and does not contain additional information and information. The purpose of the layout is to attract the attention of buyers to the product, to stimulate the purchase of certain products, which is achieved by the competent location of the goods (a certain area of ​​the sales area, the level of shelves, and other factors are taken into account). Thus, the identification of a product display with its advertising contradicts the goals and essence of advertising. This judgment is also in favor of the taxpayer.

The same approach is expressed by other judges.
However, there are some court decisions where merchandising costs were found to be advertising costs.

So, examining one of the cases, the arbitrators of the Moscow District came to the conclusion that the cost of the priority display is the cost of advertising. But in this court case, the dispute was not about whether such expenses were normalized or not, but about whether such expenses were recognized at all or not. The court decision was in favor of the taxpayer.

A similar conclusion was made by the judges of the Ural District.
Based on the above, the author believes that the cost of priority display (merchandising) is recognized as other costs. If such services are accompanied by the placement of billboards with information about the product, then this part of the costs is recognized as non-standard advertising, like window dressing.

At the same time, given the position of the Russian Ministry of Finance on this issue, this approach may cause disputes with tax inspectors. Therefore, companies must independently assess the risks of claims from auditors. To substantiate your position, we recommend using the established judicial practice about this question.