Execution env. Innovation management. Tutorial. Analog pricing method for military products
Ministry of Education and Science of the Russian Federation. 2 Federal State Autonomous Educational Institution of Higher Professional Education Ural Federal University named after the first President of Russia B.N. Page 2 of 23 Contents of NUMPAGES 1. Purpose and scope .............................................................. ................................................. ...... 3 2. Normative references ............................................... ................................................. ....................................... 3 3. Terms, definitions and abbreviations ............................... ................................................. .................. 4 4. Description of the process .................. ................................................. ................................................. 7 4.1. Process input and output .................................................................. ................................................. ........... 7 4.2. Consumers and their requirements ............................................................... ................................................. 7 4.3. Resources and their providers............................................................... ................................................. ...... 8 4.4. General provisions................................................... ................................................. ................. 8 4.5. The procedure for performing R&D (SC R&D) .............................................. ......................................... 9 4.5.1. General requirements................................................ ................................................. ........ 9 4.5.2. Development of a draft design .............................................................. ....................................... 10 4.5.3. Development of a technical project ............................................... .................................. 11 4.5.4. Development of working design documentation for the manufacture of a prototype product .............................................................. ................................................. ........................... 11 4.5.5. Production of a prototype product and carrying out preliminary tests .......................................................... ................................................. ............................................... 14 4.5.6. Carrying out state (interdepartmental) tests of a prototype product. ................................................. ................................................. .................................. 15 4.5.7. Approval of the design documentation for the organization of mass production of products .............................. 17 4.5.8. Provision of development work .............................................................. .............. 17 4.6. Monitoring, analysis, improvement ............................................... ............................................... 17 4.7. Document management .................................................................. ................................................. 17 5. Responsibility ............................................................... ................................................. ......................................... 17 Annex 1 Process diagram "R&D procedure" .................................. .............................................. 18 Annex 2 Algorithm of the process "Development in the field of creation of defense products" ...... ................................................. ................................................. ............................... 20 Approval sheet .................. ................................................. ................................................. .... 21 Mailing list .............................................. ................................................. ......................................... 22 Change Registration Sheet .......... ................................................. ............................................... 23 UrFU Ministry education and science of the Russian Federation. 3 Federal State Autonomous Educational Institution of Higher Professional Education Ural Federal University named after the first President of Russia B.N. Page 3 of 23 1. Purpose and Scope of NUMPAGES This documented procedure determines the procedure for performing research and development work carried out at UrFU to create defense products. The procedure was developed in accordance with the requirements of GOST RV 15.002-2003. The requirements of the procedure are obligatory for application in the process of activities of officials and structural divisions of the University involved in the implementation of development work to create defense products. The purpose of the process "Procedure for performing development work on the creation of defense products" is to carry out developments in full compliance with the requirements of the TTZ (TOR) and the terms of the contract for R&D (SC R&D). 2. Regulatory references This procedure has been developed taking into account the following regulatory documents: 2.1. GOST RV 1.1-96 State standardization system of the Russian Federation. Metrological support of weapons and military equipment. Basic provisions. 2.2. GOST 2.102-68 ESKD. Types and completeness of design documents. 2.3. GOST 2.119-73 ESKD. Preliminary design. 2.4. GOST 2.120-73 ESKD. Technical project. 2.5. GOST 2.501-88 ESKD. Accounting and storage rules. 2.6. GOST RV 2.902-2005 ESKD. The procedure for checking, agreeing and approving design documentation. 2.7. GOST R 8.563-96 State system for ensuring the uniformity of measurements. Measurement techniques. 2.8. GOST RV 8.570-98 State system for ensuring the uniformity of measurements. Metrological support for testing weapons and military equipment. Basic provisions. 2.9. GOST RV 8.573-2000 State system for ensuring the uniformity of measurements. Metrological examination of samples of weapons and military equipment. Organization and procedure. 2.10. GOST RV 15.1 215-92 SRPP VT. Organization and procedure for conducting technical expertise in the process of product development. 2.11. GOST RV 15.002-2003 System for the development and production of products. Military equipment. Quality management systems. General requirements. 2.12. GOST R 15.011-96 SRPP. Patent research. Content and procedure 2.13. GOST RV 15.110-2003 SRPP VT. Reporting scientific and technical documentation for research work, advance projects and development work. Basic provisions. 2.14. GOST RV 15.201-2003 SRPP VT. Tactical and technical (technical) task for the implementation of development work. 2.15. GOST RV 15.203-2001 SRPP VT. The procedure for performing experimental design work to create products and their components. Basic provisions. 2.16. GOST V 15.206-84 System for the development and production of military equipment. Reliability programs. General requirements. Ural Federal University Ministry of Education and Science of the Russian Federation. 4 Federal State Autonomous Educational Institution of Higher Professional Education Ural Federal University named after the first President of Russia B.N. 4 of 23 2.17. GOST V 15.207-90 System for the development and production of military equipment. The procedure for carrying out work on standardization and unification in the process of development and NUMPAGES of putting military equipment into production. 2.18. GOST V 15.208-82 System for the development and production of military equipment. A single end-to-end plan for creating a sample (system, complex) and its (their) components. Basic provisions. 2.19. GOST RV 15.209-95 SRPP VT. Restrictive lists of products and materials permitted for use in military equipment. The order of development and application 2.20. GOST RV 15.210-2001 SRPP VT. Testing of prototype products and prototype repair samples of products. Basic provisions. 2.21. GOST RV 15.211-2002 SRPP VT. The procedure for developing programs and methods for testing prototypes of products. Basic provisions. 2.22. GOST V 15.213-89 System for the development and production of military equipment. Design guidelines. Basic provisions 2.23. GOST V 15.702-94 SRPP VT. The procedure for establishing and extending the assigned resource, service life, storage period. 2.24. GOST 16504-81 State product testing system. Testing and quality control of products. Basic terms and definitions 2.25. GOST 24297-87 Input control of products. Basic provisions 2.26. GOST RV 51540-99 Military equipment. Terms and definitions 2.27. GOST RV 52006-2003 Creation of products of military equipment and materials for military purposes. Terms and Definitions. 2.28. GOST R ISO 9000-2008 Quality management systems. Fundamentals and vocabulary. 2.29. GOST R ISO 9001-2008 Quality management systems. Requirements. 2.30. Quality manual, Part II, 2012 2.32. DP "Metrological support of Ural Federal University departments in the field of defense products", 2012. 3. Terms, definitions and abbreviations Abbreviations used in the text of the document are given and deciphered in Table 1. Table 1. Abbreviations and their full name No. Abbreviations Full name 1 VP military representation 2 VT military equipment 3 DP documented procedure 4 ESKD unified system of design documentation 5 ESTD unified system of technological documentation 6 ECTPP unified system of technological preparation of production Documentation 10 KRND commission for the development of scientific activities of the Ural Federal University Ministry of Education and Science of the Russian Federation. 5 Federal State Autonomous Educational Institution of Higher Professional Education Ural Federal University named after the first President of Russia B.N. 3-03-13-2012 11 12 13 14 16 16 18 19 20 21 22 22 22 22 24 25 26 27 ND OKR ONTD OIP PKI RPD RKD SRPP TZ TZ TZ TU URFU, University 28 EP instance No. 1 p. 5 of 23 normative documentation NUMPAGES development work reporting scientific and technical documentation responsible project executor Quality management department purchased component product project manager (R&D chief designer) working design documentation quality management system system for developing and putting products into production integral part technological documentation terms of reference tactical and technical specifications technical specifications Office of Records Management and General Affairs Federal State Autonomous Educational Institution of Higher Professional Education "Ural Federal University named after the first President of Russia B.N. Yeltsin" draft design The terms used in the text of the document are given and explained in Table 2. Table 2. Terms and definitions No. Term Definition pilot batch) of the VT product, performed during the creation (modernization) of the VT product according to the tactical and technical specifications of the state customer (customer) 2 tasks of creating (modernizing) a VT product (component of a VT product) Stage 3 (sub-stage) R&D A set of works characterized by signs of their (SC R&D) independent targeted planning and financing, aimed at obtaining certain final results for the development, verification and confirmation of compliance with product characteristics VT (an integral part of the VT product) to the established requirements and subject to acceptance by the customer 4 Prototype VT product manufactured in the course of R&D at UrFU Ministry of Education and Science of the Russian Federation. 6 Federal State Autonomous Educational Institution of Higher Professional Education Ural Federal University named after the first President of Russia B.N. 9 10 11 12 13 14 15 page 6 of 23 of the newly developed working design and technological documentation to verify by NUMPAGES testing the compliance of its parameters and characteristics with the requirements of TTZ (TOR) for R&D and the correctness of the adopted technical solutions General customer Legal entity representing the interests of the R&D the creation of a state customer when concluding a state contract for the implementation of R & D for the creation of an R&D product with the head performer of the work Executive authority in the organization Tactical and technical Initial technical document, approved by the customer for the implementation of R&D (SC R&D) and establishing the R & D complex (MC R&D) of tactical and technical requirements for the created VT product, as well as requirements for the content, volume and timing of the R&D Technical task The initial technical document approved for the implementation of the R&D midrange by the lead R&D contractor and establishing a set of technical requirements for the created component of the VT product, as well as requirements for the content, scope and timing of the R&D midrange performance. R&D coordinating the work of R&D mid-range performers and responsible for the implementation of R&D as a whole Performer of R&D mid-range The organization that has concluded a contract with the head performer of R & D or the customer for the performance of R&D mid-range and is responsible for the implementation of R&D mid-range State contract (agreement) concluded by the R&D customer and the contract (contract , the lead R&D contractor (R&D chief contractor and the contract) for the R&D MC contractor) and providing for the obligations to perform the R&D (RC of the parties and their responsibility for the performance of the R&D (RC R&D) R&D) Product development documentation for products, production and testing of a prototype, adjustment and approval of documentation after state tests Reporting scientific and technical documentation, including technical objective information on the content and results of R&D, documentation of R&D components, as well as containing recommendations on the use of these results Patent Research of a technical level and trends UrFU VT Instance No. 1 Minister
The complex of works on designing a new product usually includes three relatively independent stages of R&D (Table 1): 1) preparatory; 2) development of project documentation; 3) development of working documentation.
Table 1 Stages and stages of R&D
|
Stage |
Stage |
Main tasks and scope of work |
|
Preparatory |
Development of technical specifications for R&D |
Drawing up a project by the customer Project development by the contractor Establishment of a list of counterparties and coordination of private TK with them Coordination and approval of TK |
|
Development of project documentation |
Technical Proposal (is the basis for the adjustment of the TOR and the implementation of the preliminary design) |
Identification of additional or refined requirements for the product, its technical characteristics and quality indicators that cannot be specified in the TOR:
|
|
Preliminary design (serves as the basis for technical design) |
Development of fundamental technical solutions:
|
|
|
Engineering design |
The final choice of technical solutions for the product as a whole and its components:
|
|
|
Development of working documentation |
Development of working documentation for the manufacture and testing of a prototype |
Formation of a set of design documents:
|
|
preliminary tests |
Verification of the compliance of the prototype with the requirements of the TOR and determination of the possibility of its presentation for state (departmental) tests:
|
|
|
State (departmental) tests |
Assessment of compliance with the requirements of the TOR and the possibility of organizing mass production |
|
|
Development of documentation based on test results |
Making the necessary clarifications and changes to the documentation Assignment of documentation letter O1 Transfer of documentation to the manufacturer |
First stage - preparatory. At the preparatory stage of designing a new product, the need for its creation is substantiated and the composition of its main technical and economic parameters is agreed upon. At this stage, the market situation is studied, marketing research is carried out, the demand for a new product is analyzed and forecasted, and technological restrictions on the conditions for the production of a new product are established.
The results of calculations and approvals are reflected in the approved terms of reference (TOR) for development. This most important document contains the most essential characteristics of the designed product, detailed by the following aspects: the composition of the product and the requirements for its configuration, performance indicators, requirements for reliability, safety, manufacturability, unification, etc. At the preparatory stage, the process of project implementation is regulated: determining the composition of stages and works, the sequence and calendar dates for their implementation, establishing the composition of performers and distributing tasks between them, identifying contractors and planning cooperation. Planning and organization of work on the project includes determining the organizational form of work (independently or by a third-party organization), forming working groups, drawing up calendar schedules for the project, calculating the required resources and providing them, etc. management experienced design development
Second stage - - provides for the implementation of a set of works that determine the conceptual solutions for a new product. This stage of product design involves the completion of three stages of development 1) technical proposal, 2) draft design and 3) technical design.
Second stage - development of project documentation. This stage provides for the implementation of a set of works that determine the conceptual solutions for a new product: the choice of the principle of operation, the overall layout of the product, the requirements for the composition of nodes and functional blocks, engineering and cost analysis of the functional structure of the product, experimental work and testing of individual nodes and layout solutions, etc. .d. This stage of product design involves the completion of three stages of development 1) technical proposal, 2) draft design and 3) technical design.
Technical Proposal - a set of design documents containing a feasibility study for the development of the necessary product documentation based on the analysis of the technical specifications, various options for possible design solutions, patent research, etc. Documents are assigned the letter " P».
Preliminary design includes documents containing fundamental design solutions that give an idea about the device and the principle of operation of the product, as well as data that determine its main parameters and overall dimensions. Documents are assigned the letter " E».
Technical project - a set of documents that should contain the final technical solutions that give a complete picture of the design of the product, and the initial data for the development of working documentation. If necessary, models of experimental samples are made and tested. Documents are assigned the letter " T».
Completion of each of the listed stages is accompanied, as a rule, by the preparation of the relevant Project documentation, and the holding of agreements with the customer on the achieved intermediate results.
At the third stage - developing working documentation- a set of design documentation is being prepared, which is necessary for the material embodiment of the designed product. Working design documentation is developed separately for a prototype, for single, serial and mass production. With a single type of production, working design documents are assigned the letter " AND».
The working draft provides for the most complete detailing of the design being developed, which makes it possible to manufacture, control and accept individual parts and assemblies, as well as assemble, test and operate the product at the consumer's. Working documentation includes the preparation of working drawings of parts, assembly units and assemblies of the product, production and operational documentation (product passport, description for the user, operating instructions, service maintenance documents, warranty documentation, etc.). When carrying out engineering calculations, the choice of a system of tolerances is justified, dimensional chains, optical, mechanical, electrical and other parameters, characteristics of individual parts and assemblies are checked. At this stage, among other documentation, consolidated specifications of parts and assemblies of the designed product are compiled, which are necessary for organizing its production, coding of the structural elements of the new product and design documentation is carried out.
Specifications are compiled in the form of special lists of parts and assemblies of the product, and can also be presented in graphical form, reflecting the hierarchical structure of the product. The graphical representation of the specification is carried out in the form of a hierarchical diagram of the nodal and detailed composition of products. The design specifications of a new product are the most important result of R&D, widely used in production management for organizing new production, scheduling calculations in production departments and planning the supply of components and assemblies for cooperation.
"Actual issues of accounting and taxation", 2012, N 16
The company has carried out experimental design work (R&D) within the framework of the state defense order according to the terms of reference of a foreign customer (a Chinese company). The specificity of this transaction lies in the fact that, given the special regulation of relations in the field of military-technical cooperation with foreign states, it was concluded not directly with a foreign partner, but under a commission agreement with a state intermediary for the export (import) of military products.
Disputes with controllers on the issue of determining the place of implementation of these works for the purpose of taxing VAT reached the Presidium of the Supreme Arbitration Court of the Russian Federation. Looking ahead, let's say that the operative part of the decision at the time of publication of this material is already known. We will intrigue the reader - we will not immediately voice it. We believe that it is necessary to understand this complicated story step by step.
Circumstances of the dispute
So, the state-owned enterprise entered into a contract with a Chinese company for the import and export of products, assuming obligations to provide military-technical support for the work.
Due to the fact that this contract was concluded in the field of military-technical cooperation with foreign states, it was assumed that the transaction would be carried out by the enterprise as a state intermediary for the export (import) of military products on its own behalf, however (!) at the expense of the company with which this company has entered into commission agreement, in accordance with the terms of which the company undertakes to carry out development work on the terms of reference of a foreign customer and transfer a set of documentation and a prototype on the conditions provided for contract, imprisoned state-owned enterprise with a foreign customer.
Features of the sphere of interaction
Before delving into the dispute itself, which was the subject of litigation, we consider it necessary to note the following. The sphere of interaction between the three counterparties identified above (a foreign customer, a contractor and a company-consignor), namely military-technical cooperation, is very specific and not easy. It is possible to carry out only those types of activities that are expressly permitted, and by those persons who are expressly permitted to do so.
Relations in the field of military-technical cooperation of the Russian Federation with foreign states, state regulation and financing of work in it, the procedure for participation in the implementation of this cooperation of developers, manufacturers of military products is established by Law N 114-FZ<1>, in accordance with Art. 1 of which military-technical cooperation is understood as activities in the field of international relations related to the export and import, including the supply or purchase, of military products, as well as the development and production of military products, which recognizes weapons, military equipment, works , services, results of intellectual activity, including exclusive rights to them (intellectual property) and information in the military-technical field. It also includes the results OKR on the creation, modernization and (or) destruction (disposal) of weapons and military equipment (paragraph 17, article 1 of Law N 114-FZ).
<1>Federal Law No. 114-FZ of July 19, 1998 "On military-technical cooperation between the Russian Federation and foreign states".
In accordance with the provisions of the State Military Standard of the Russian Federation GOST RV 15.203-2001<2>(hereinafter referred to as the Standard) R & D is a set of works on the development of design and technological documentation for a prototype of a military equipment (VT) product, the manufacture and testing of a prototype (pilot batch) of a military equipment product, performed during the creation (modernization) of a military equipment product according to the tactical and technical assignment state customer (customer) (clause 3.1.1 of the Standard).
<2>"The system for the development and production of products. Military equipment. The procedure for performing experimental design work to create products and their components." Entered into force on 01.01.2003.
Article 12 of Law N 114-FZ enshrines the right of organizations engaged in foreign trade activities in relation to military products to participate in the military-technical cooperation of the Russian Federation with foreign states. Thus, according to clause 1 of this article, foreign trade activities in relation to military products can be carried out by federal state unitary enterprises (state intermediaries) established by decision of the President of the Russian Federation, joint-stock companies, 100% of whose shares are owned by the Russian Federation or state corporations, as well as the state corporation Russian Technologies "<3>.
<3>The Russian Federation was created on the basis of the Federal Law of November 23, 2007 N 270-FZ "On the State Corporation "Russian Technologies".
Note. The implementation of foreign trade activities by Russian individuals is prohibited (clause 4, article 6 of Law N 114-FZ).
This activity can be carried out by other Russian organizations, but subject to a number of conditions: firstly, they must be developers and manufacturers of military products; secondly, these persons must obtain the right to carry out foreign trade activities in relation to military products; thirdly, at least 51% of the shares (stakes) of such persons must belong to the Russian Federation.
Note! The subjects of civil law relations in the field of export of military products may not be any, but strictly defined persons who have received the right to do so in the prescribed manner.
Characters
As you can see, there are no strangers in this area. So, the characters of our story:
- a Chinese company (hereinafter referred to as a foreign customer);
- federal state unitary enterprise (hereinafter referred to as the executor). Indeed, the Rosoboronexport enterprise, which has concluded a contract with a foreign customer, is a state intermediary in the implementation of foreign trade activities in relation to military products (clause 1 of the enterprise's Charter<4>), in accordance with Art. 1 Law N 114-FZ, which is a military product in order to implement the state policy in the field of military-technical cooperation of the Russian Federation with foreign states and make a profit from this activity (clause 10 of the Charter of the enterprise);
- a company with which the performer has entered into a commission agreement and which is the main character, since as a result of an on-site tax audit, disputes with controllers arose in relation to it, which led to a series of litigation. According to the commission agreement society(principal) is obliged to perform R & D, produce and supply design documentation for a special product, its mathematical model and prototype<5>on the terms stipulated by the contract concluded by the contractor with a foreign customer<6>.
<5>A prototype of a VT product is a VT product manufactured in the course of R&D according to the newly developed working design and technological documentation for adoption (supply, operation, intended use) and production (clause 3.1.11 of the Standard).
<6>State contract for the performance of R & D - a contract concluded by the customer and the performer of the R & D, which provides for the obligations of the parties and their responsibility for the performance of the R & D (clause 3.1.17 of the Standard).
Position of the taxpayer
The Company, believing that it performs R & D as part of the fulfillment of obligations to a foreign customer, proceeded from the fact that the territory of the Russian Federation is not recognized as the place for the implementation of these works (clause 4, clause 1.1, article 148 of the Tax Code of the Russian Federation) and, accordingly, these operations are not an object taxation of VAT (clause 1, article 146 of the Tax Code of the Russian Federation).
We remind readers that the above norms establish a rule for determining the place of sale of works (services). Here the main criterion is the location of the buyer's activities. Thus, the territory of the Russian Federation is considered the place of the buyer's activities in the event of his actual presence in the territory of the Russian Federation on the basis of state registration of the organization, and in its absence - on the basis of the place specified in the constituent documents of the organization, the place of management of the organization, the location of the permanent executive body, the place location of a permanent representative office (if the works (services) are provided through this permanent representative office) (paragraph 2, paragraph 4, paragraph 1, article 148 of the Tax Code of the Russian Federation). That is, if the buyer operates on the territory of the Russian Federation, the territory of the Russian Federation is recognized as the place of implementation of work and, accordingly, the amount of VAT is payable to the budget of the Russian Federation. This provision applies in particular to R&D. Thus, if the buyer of these services is a foreign person registered and operating in the territory of a foreign state, the territory of the Russian Federation is not recognized as the place of sale of services and, accordingly, these services are not subject to VAT in the Russian Federation (Letters of the Ministry of Finance of Russia dated 08.09.2011 N 03 -07-08 / 276, Federal Tax Service of Russia for Moscow dated May 19, 2011 N 16-15 / 49161).
The position of the tax authorities
The controllers, on the contrary, came to the conclusion about the unlawful application by the company of the provisions of Art. 148 of the Tax Code of the Russian Federation, which determine the place of sale of works (services), considering that the result of the fulfillment of obligations by the taxpayer was export delivery through the commission agent of the military property complex (technical documentation and prototype). We believe that the basis for such conclusions was the following. The contractor (according to the commission agreement - the commission agent) under the agreement assumes, in particular, obligations for:
- providing legal and banking support for export operations related to the performance of work, the supply of property and documentation to the customer;
- ensuring, at the expense of the committent, obtaining an export license for the work performed, the supplied property and documentation, as well as issuing a transaction passport;
- registration by the customs broker of an export license with the customs authority, customs clearance of property and documentation;
- organization of ground handling of property and documentation at the airport of shipment, as well as the organization of air transportation and forwarding of property and documentation.
Taking into account the specifics of legal regulation in the field of military-technical cooperation with foreign states, having analyzed the terms of the contract and the commission agreement submitted as part of the tax audit, as well as having studied the documents available in the case (invoices, customs declarations, etc.), the inspection established that the contractor under the contract was issued an opinion on the export of military products supplied under the commission agreement. The export of technical documentation was issued by licenses for the export of military products. In the contract, the parties agreed on the terms of delivery of products, requirements for the procedure for its delivery, container and packaging. In the opinion of controllers, the export of technical project documentation is confirmed by cargo customs declarations.
Tax officials drew attention to another important point. According to the provisions of Art. 1371 of the Civil Code of the Russian Federation, exclusive rights to an invention, utility model or industrial design created in the course of the execution of an R&D contract are granted to the customer, provided that the contract contains the appropriate condition. In the absence of such a condition, the exclusive rights belong to the performer. In this case, the customer has the right, unless otherwise provided by the contract, to use the invention, utility model or industrial design created in this way for the purposes for which the relevant contract was concluded, under the terms of a simple (non-exclusive) license during the entire term of the patent without payment for this is the use of additional rewards.
In the case under consideration, the exclusive rights in respect of intellectual property obtained in the course of R&D under an agreement with a foreign customer remained on the territory of the Russian Federation. As follows from the case file, the company transferred the documentation and a prototype product to the foreign customer, but (in accordance with the contract) did not transfer exclusive rights to the result of intellectual property. Moreover, due to the peculiarities of the concluded transaction, these rights remained with the contractor, that is, on the territory of the Russian Federation. The fact is that in accordance with the concluded contract, all exclusive rights to intellectual property, including inventions, samples and other scientific and technical results, belong to the contractor.
Due to the fact that the contractual relations in question cannot be qualified as the implementation of R & D, since the exclusive rights to the results of the work were not transferred to the foreign customer, the inspection considered that the export delivery of the product was carried out in his favor (design documentation for the special product, its mathematical model and prototype ). Accordingly, according to the tax authorities, the place of OCR implementation is Russia, and the transaction with a foreign counterparty is the export of goods, the sale of which is taxed at a rate of 0%.
As a result, the inspectorate charged the company with VAT at a rate of 18% due to the failure to submit, after 180 days, the documents necessary to confirm the zero rate (Article 165 of the Tax Code of the Russian Federation).
Fight to the bitter end
The courts of three instances upheld the position of the inspectors on the commission of actions by the company for the export supply of products. Nevertheless, we believe that the taxpayer initiated a review of this case in the Supreme Arbitration Court of the Russian Federation as efficiently as possible, especially since the price of the issue is considerable - for this episode of the case under consideration, it amounted to more than 15 million rubles. Challenging the conclusions of the courts, the company "played" on the peculiarities of the legal nature of the concluded contract.
Legal regulation of relations related to the creation of new results of intellectual activity is carried out by Ch. 38 of the Civil Code of the Russian Federation. The definition of the contract for the implementation of R & D is given in paragraph 1 of Art. 769 of the Civil Code of the Russian Federation, in accordance with the norms of which the contractor undertakes to develop a sample of a new product, design documentation for it or a new technology, and the customer - to accept the work and pay for it. In other words, R&D contracts formalize relations for the creation of new results of intellectual activity, primarily scientific and technical products: new materials, devices, technologies, as well as direct research on their creation. The contractor undertakes, on the basis of the customer's technical assignment, to develop a sample of a new product, design documentation for it, and the customer - to accept the work and pay for it. Further, arguing in the given vein, the company distinguishes between the "contract for the performance of R & D" and the "delivery contract". In his opinion, the main difference lies in the fact that, under a supply agreement, the buyer receives an item purchased from third parties or manufactured by a supplier, but which does not have individual characteristics (serial model), while under an R & D agreement, a sample of a new product is developed in in accordance with the needs defined by the customer in the terms of reference. At the same time, the implementation of R&D is always associated with obtaining a certain result that has a materialized character - a sample of a new product or design documentation.
Proving that the concluded contract by its nature is an agreement for the performance of R & D, the place of performance of which is the location of the customer (in this case, the territory of a foreign state), and motivating its point of view by the terms of the concluded contract, the company argues as follows. The contract establishes that in order to fulfill the technical specifications of the customer, the contractor will do the work, and also put him documentation And property. The content of these terms is also defined by the contract:
- the term "works" means R & D for the development of documentation, the manufacture of special products, services provided by the contractor to the customer for the delivery of property and documentation, as well as consultations based on the results of the work performed;
- the term "documentation" means a set of design documentation for a special product and a mathematical model developed by the contractor for transfer to the customer;
- the term "property" means a sample of a special product developed by the contractor in accordance with the terms of reference of a foreign customer.
Accordingly, the concluded contract, by its nature, is an agreement for the performance of R & D, the place of performance of which is the location of the customer (foreign state). And the fact that the exclusive rights to the result of the work were not transferred to a foreign customer cannot be considered as a basis for a different qualification of the subject of the contract.
The bottom line is this. The Board of Judges of the Supreme Arbitration Court of the Russian Federation in Ruling No. VAC-2296/12 dated May 10, 2012 on the transfer of this case to the Presidium of the Supreme Arbitration Court of the Russian Federation, disagreeing with the conclusions of the lower courts, indicated that the resolution of the issue of ownership of the exclusive right to the results of intellectual activity created in the course of the R&D , does not affect the qualification of this agreement as a contract type agreement.
* * *
At a meeting held on 17.07.2012, the Presidium of the Supreme Arbitration Court of the Russian Federation canceled the decisions of the lower courts without remitting the case for a new trial. Note that at the time of preparation of the editorial material, only the operative part of the decision was known. However, in order to draw final conclusions regarding this situation, it is necessary to wait for the very text of the judicial act, the appearance of which we will inform the reader without fail.
N.V. Firfarova
Magazine editor
"Current Issues
accounting and taxation"
8. PROCEDURE AND EFFECTIVENESS OF R&D
8.1. Main tasks and stages of R&D
After the completion of applied R&D, subject to the positive results of an economic analysis that satisfies the firm in terms of its goals, resources and market conditions, they begin to perform development work (R&D). R&D is the most important link in the materialization of the results of previous R&D. Its main task is to create a set of design documentation for mass production.
The main stages of R&D (GOST 15.001-73):
1) development of technical specifications for R&D;
2) technical proposal;
3) preliminary design;
4) technical design;
5) development of working documentation for the manufacture and testing of a prototype;
6) preliminary tests of a prototype;
7) state (departmental) testing of a prototype;
An approximate list of works at the R&D stages is shown in Table 8.1.
Table 8.1
Approximate list of works at the stages of R&D
|
OKR stages |
|||
|
Development of technical specifications for R&D |
Drawing up a draft TK by the customer Development of the draft TOR by the contractor Establishment of a list of counterparties and coordination of private TK with them Coordination and approval of TK |
||
|
Technical proposal (is the basis for adjusting the TOR and performing a draft design) |
Identification of additional or refined requirements for the product, its technical characteristics and quality indicators that cannot be specified in the TOR: elaboration of research results; elaboration of forecasting results; study of scientific and technical information; preliminary calculations and clarification of the requirements of the TOR |
||
|
Preliminary design (serves as the basis for technical design) |
Development of fundamental technical solutions: performance of work on the stage of the technical proposal, if this stage is not carried out choice of element base for development selection of basic technical solutions development of structural and functional diagrams of the product selection of basic structural elements metrological examination of the project development and testing of layouts |
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|
Engineering design |
The final choice of technical solutions for the product as a whole and its components: development of basic electrical, kinematic, hydraulic and other circuits clarification of the main parameters of the product carrying out the structural layout of the product and issuing data for its placement on the site development of projects of specifications for the supply and manufacture of products testing mock-ups of the main devices of the product in natural conditions |
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The end of the table. 8.1
|
OKR stages |
Main tasks and scope of work |
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|
Development of working documentation for the manufacture and testing of a prototype |
Formation of a set of design documents: development of a complete set of working documentation its coordination with the customer and the manufacturer of serial products verification of design documentation for unification and standardization production in a pilot production of a prototype tuning and complex adjustment of the prototype |
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|
Preliminary tests |
Verification of the compliance of the prototype with the requirements of the TOR and determination of the possibility of its presentation for state (departmental) tests: bench tests preliminary tests at the facility reliability tests |
||
|
State (departmental) tests |
Assessment of compliance with the requirements of the TOR and the possibility of organizing mass production |
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|
Development of documentation based on test results |
Making the necessary clarifications and changes to the documentation Assignment of the documentation of the letter "O 1" Transfer of documentation to the manufacturer |
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8.2. Philosophy and design logic
Design is a set of measures that ensure the search for technical solutions that meet the specified requirements, their optimization and implementation in the form of a set of design documents and a prototype (s) subjected to a test cycle for compliance with the requirements of the technical assignment.
Any modern complex technical device is the result of complex knowledge. The designer must know marketing, the economy of the country and the world, the physics of phenomena, numerous technical disciplines (radio engineering, computer engineering, mathematics, mechanical engineering, metrology, organization and technology of production, etc.), product operating conditions, guiding technical documents and standards.
In addition, one should take into account: the features and requirements of real life, the team, other people's experience, the ability to receive and evaluate information.
Not the last requirement for the designer is the complexity of thinking, the ability to work with a large number of organizations. This skill is especially necessary for the developer of a product that is part of a more complex complex (for example, radio stations for a ship, aircraft) or associated with other systems (data output, power supply, control, etc.).
As an illustration, let's consider a typical procedure for the development and mastering of new technology in the interests of a particular department (Ministry of Defense, geological departments, Agroprom, etc.), see also Table 8.1:
|
Performers |
|
|
Academic Research Institute Leading research institute of the industry |
Search research, problem |
|
Research Institute, Leading Research Institute of the Industry, Design Bureau |
Applied research (research of the possibility of creating a product) |
|
Research executor Research institute of the customer |
Development of technical specifications for R&D |
|
Technical proposal (determination of the possibility of obtaining characteristics according to the TOR) |
|
|
Research institute of the customer |
Specification specification |
|
customer acceptance |
Draft design (determination of the main technical solutions, possible options for execution) |
|
Technical project (determination of the main development option, main technical solutions) |
|
|
Working draft (development of prototype documentation) |
|
|
pilot plant |
Prototype production |
|
Preliminary (bench) testing of a prototype |
|
|
Research Institute, design bureau, pilot plant, facility manufacturer |
Installation of a prototype on a carrier object |
|
Preliminary testing of a prototype at the facility |
|
|
State commission of the customer with the participation of research institutes, design bureaus |
State tests |
|
Development of documentation based on test results |
|
|
Transfer of documentation to the manufacturer of the series |
|
|
Plant, Research Institute, Design Bureau |
Preparation of production at a serial plant |
|
Release of an experimental batch |
|
|
Plant, Research Institute, Design Bureau |
Correction of documentation based on the results of the release of an experimental batch |
|
Release of the installation series |
|
|
Established batch production |
Both the developer (research institute, design bureau) and the manufacturer continuously improve the product as they gain experience in its operation.
The logical model of decision making by the developer can be stated as follows. The set of technical solutions that satisfy the i-th constraint will be denoted as Аi. Then the set of technical solutions admissible according to n restrictions will be defined as the intersection of sets . First of all, the developer must find out that the last set is non-empty. Further, from this set, solutions are identified whose elements X satisfy all the criteria specified in the terms of reference:
.
When designing any system, you can set its input and output signals (in the informational sense), external conditions and criteria for the success of the solution. In a general sense, the input of the system is the reaction of the environment to the system, and the output is the reaction of the system to the environment. External conditions can manifest themselves in two aspects: design constraints and a set of situations in which the system must operate.
The most complex and least developed task is the convolution of a set of criteria into a single one (objective function). This issue will be considered later.
The choice of specific technical solutions mathematically represents an optimization problem, for which known methods of the theory of operations (direct calculation, classical method of differentiation, method of Lagrange multipliers, calculus of variations, numerical search methods, linear and non-linear programming, Pontryagin's maximum principle) can be used.
8.3. Integral technical indicator of product quality
As already mentioned in Chapter 6, the ISO standard recommends comparing its characteristics with the corresponding characteristics of an analogue as a method for assessing the quality of a new product. Naturally, the validity of the assessment depends on the correct choice of analogue. First of all, you should choose an analogue that is closest in functionality, present on the market with a stable market price and known technical and economic characteristics. If the designed product, according to its functional purpose, replaces several existing products, then their totality is used as an analogue. The assessment of the quality level of the developed products is based on a comparison of the main groups of technical and operational parameters: purpose, reliability, manufacturability, unification, ergonomics, patent-legal and environmental. The choice of the nomenclature of indicators is made in accordance with the available materials (standards, industry-specific materials, etc.) or is made by the developer himself. The rationale for such a choice should be contained in the reporting materials of the ROC. For example, for different groups of electronic equipment, different functional indicators are recommended (Table 8.2.).
Table 8.2
Composition of indicators of functional purpose
for different groups of radio-electronic equipment (REA)
|
Indicators |
radio |
radio transmitter |
radio measuring equipment |
TV receiver |
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Sensitivity |
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frequency range |
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Range |
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Range Resolution |
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Angle Resolution |
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Radiated power |
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Process performance |
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Memory |
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Rebuilding time |
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Power efficiency |
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Information processing time |
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Noise immunity |
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|
Contrast |
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|
Nonlinear distortion |
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For each of the selected indicators for comparison by an expert, the coefficient of its weight (importance) must be determined.
As already mentioned, the form of presentation of a complex quality indicator cannot be unambiguously justified. Therefore, you should use the requirements of regulatory documents or justify your choice.
The two main forms of the integral quality indicator are most widely used:
1) additive
where gi is the weight coefficient of the i-th parameter; AI - quality indicator for the i-th parameter; n is the number of parameters by which the comparison is made;
2) multiplicative
The additive form (weighted average summation) is the most common, although its disadvantage is the possibility of "compensating" the quality level for one parameter at the expense of others. In addition, it allows the situation of the significance of the integral quality indicator with a zero value of one or more parameters. In this sense, the multiplicative form of representation is preferable, although it should be noted that the multiplicative form is easily converted to an additive form by simple logarithms.
When comparing a designed product with an analog, another problem arises - bringing the compared options to a comparable form. Comparability must be ensured:
- by areas and operating conditions;
- according to the regulatory framework for calculating costs and useful results;
- for the end result.
Comparability in areas and operating conditions is ensured by choosing an analogue.
Comparability in terms of a useful result is necessary if there are differences in the technical and operational parameters used. Usually, reduction to comparability is used with the help of reduction factors. Essentially, they provide comparability in terms of some selected reference parameters (energy, number of parameters and modes, accuracy, etc.). Thus, they indicate, for example, that in a complex comparison of the radiated power of the radar and its reliability, the failure rate should be used for the latter parameter, and not the probability of failure-free operation. This is due to the fact that both the radiated power and the failure rate correlate with hardware costs in the same direction and approximately equally.
The coefficients of reduction to a comparable form are contained in Table. 8.3.
Table 8.3
Reduction coefficients for various REA parameters
|
Parameter |
Calculation formula |
Conventions |
|
Performance |
Annual volume of work of analogue and new product |
|
|
Versatility |
The number of objects of an analogue and a new product required to simultaneously obtain information from a certain number of points Number of working channels |
|
|
Accuracy of measurements |
|
Probability of obtaining a result with a given margin of error by an analogue and a new product |
|
Communication range |
Ranges of analog and new product |
|
|
Reliability |
|
Probabilities of no-failure operation of an analogue and a new device |
|
Receiver sensitivity |
Sensitivity of analogue and new product |
|
|
Radiated power |
Radiated powers of analogue and new product |
8.4. Integral economic indicator of the product and its technical and economic efficiency
The consumption price serves as an integral economic indicator of a new product when compared with its analogue. It is expressed by the following formula:
where K - one-time capital costs (for the acquisition, transportation, installation, as well as related costs); З e - operating costs for the entire time of operation of the product.
With a long service life, of course, dynamic estimates must be made using discounting. If, as a result of a change in the reliability of a new product compared to a similar one, the assessment of damage (including in adjacent links) changes, this should be taken into account. In the same way, the accompanying positive results of using a new product should be taken into account. These should include, in particular:
- reduction in the dimensions and weight of aircraft and ships when new products are installed on them instead of analogues;
- increasing the accuracy and speed of the control system (aircraft, ship, air traffic, etc.), which reduces the length of the path, and hence the reduction in fuel consumption, control costs.
Thus, the complete formula for determining the integral economic indicator has the form
where is the total amount of damage from failures (Chapter 6); P c - concomitant positive results of using a new product.
It is convenient to evaluate the technical and economic efficiency of a new product using Table. 8.4.
Table 8.4
Evaluation of the technical and economic efficiency of a new product
|
Parameter, |
New product |
||||||
|
weightiness |
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The end of the table. 8.4
The integral cost indicator can hardly be more or less accurately calculated in the early stages of R&D. This is due to the incompleteness of design documentation and the lack of technological documentation. The only way out is to compare this indicator with a price similar in terms of element base, technology and product design. In this case, it is advisable to isolate large and complex components of the product and evaluate them separately.
8.5. Development Performance Management
As already mentioned in 8.2, the success of development depends on a large number of dialectically interrelated external and internal factors. Rice. 24 clearly shows the impact on the effectiveness of R&D of the main groups of factors:
- market (position in competition, turnover, demand);
- organizational (concept, choice, planning, control, personnel, structures, finances);
- scientific and technical (quality, projects, products);
- production (costs, technology, organization of production, fixed assets, implementation).
Rice. 24. The main factors determining the effectiveness of ROC
Rice. 25 illustrates the circulation of goals and objectives ("circular dependence") of market activity, R&D policy, specific developments and a firm's product portfolio. It should be noted that in Fig. 24 and 25 is present as the most important factor of time, which is not surprising if we recall our economic assessments in Chapter 5. The time factor is certainly one of the most important for the success of the implementation of R&D results (Fig. 26). To reduce the development time, it is advisable for the firm to control its R&D activities and plan and implement the activities shown in Fig. 27. It should be emphasized again that the R&D area of a firm cannot be viewed as independent of others. Only complex interaction and improvement of all areas of the company's activities can ensure the success of its innovative activities.
Rice. 25. The relationship between the main activities of the company, its R&D policy, specific R&D and product portfolio
Fig.26. Main results of development time reduction
Rice. 27. Basic methods for reducing ROC time
8.6. Summary of Chapter 8
R&D is a key step in the innovation process. Here, the results of the previous stages are materialized into a new product.
The main task of R&D is to create a set of design documentation suitable for mass production of the product. In order to work out the documentation and verify the compliance of the R&D results with the requirements of the technical specifications in the pilot production, a prototype is manufactured and tested in the factory and in full-scale conditions.
In the informational sense, OKR represents a field of complex interactions between various fields of knowledge: natural sciences, mathematics, economics, production organization, management of a team of developers, etc. The key task of technical and economic design as part of R&D is to ensure the effectiveness of a new product and, consequently, its competitiveness in the market. In this regard, the construction of an integral quality indicator and an integral economic indicator of a product is of particular importance.
In managing the effectiveness of development, in addition to ensuring its own technical and economic indicators, the reduction of time for R&D and the choice of the moment for bringing a new product to the market is of decisive importance.
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