ST 257 of the Criminal Code of the Russian Federation.
Production of wood alloy, construction of bridges, dams, transportation of wood and other forest resources, carrying out blasting and other works, as well as operation of water intake structures and pumping mechanisms in violation of the rules for the protection of aquatic biological resources, if these acts resulted in mass death of fish or other aquatic biological resources , destruction of significant amounts of feed reserves or other grave consequences - is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or by compulsory labor for a term of up to four hundred eighty hours, or by correctional labor for a term of up to two years.
Commentary to Art. 257 Criminal Code
1. The objective side is expressed in violation of the rules for the protection of aquatic biological resources during: a) the production of wood alloy; b) construction of bridges, dams; c) transportation of wood and other forest resources; d) carrying out blasting and other work; e) operation of water intake structures and pumping mechanisms.
2. A mandatory sign is the occurrence of one of the consequences specified in the law: a) mass death of fish or other aquatic biological resources; b) destruction of significant amounts of food reserves or c) other grave consequences.
The death of aquatic biological resources in a certain territory should be recognized as massive, in which the mortality rate exceeds the statistical average by three or more times.
The issue of recognizing the size of the destruction of feed stocks as significant is decided in each specific case, taking into account the volume of destroyed and damaged, the environmental and economic value of these stocks.
Other serious consequences include the destruction of spawning sites, disruption of the ecological balance of the biosystem, large losses associated with the restoration of the quality of the natural environment and the abundance of aquatic biological resources, etc.
3. Special subject of the crime - a person responsible for compliance with the rules for the protection of aquatic biological resources.
Second commentary to Art. 257 of the Criminal Code of the Russian Federation
1. On the subject of the crime, see the commentary to Art. 256 of the Criminal Code.
2. The objective side is characterized by the production of wood alloy, the construction of bridges, dams, the transportation of wood and other forest resources, the implementation of blasting and other works, as well as the operation of water intake structures and pumping mechanisms in violation of the rules for the protection of aquatic biological resources. It must be borne in mind that the law contains an open list of activities that may violate the rules for the protection of aquatic biological resources.
3. On the concept of mass fish death, see the commentary to Art. 250 CC.
The issue of recognizing the size of the destruction of feed stocks as significant is decided by the court. Their value expression is established according to the corresponding taxes. Other serious consequences include the destruction of breeding grounds for fish or other aquatic animals, the so-called wintering pits, disruption of the ecological balance of the biosystem, etc.
4. The subjective side is characterized by an intentional or careless form of guilt.
5. The subject of the crime is a person who has reached the age of 16 years.
Violation of rules for the protection of aquatic biological resources
Production of wood alloy, construction of bridges, dams, transportation of wood and other forest resources, carrying out blasting and other works, as well as operation of water intake structures and pumping mechanisms in violation of the rules for the protection of aquatic biological resources, if these acts resulted in mass death of fish or other aquatic biological resources , destruction of significant amounts of feed reserves or other grave consequences -
is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or by compulsory labor for a term of up to four hundred eighty hours, or by correctional labor for a term of up to two years.
Third commentary to Article 257 of the Criminal Code of the Russian Federation
1. The direct object of the crime in question is public relations in the field of aquatic biological resources, as well as environmental safety. The subject of the crime is fish, aquatic animals, natural food reserves of reservoirs as a source of nutrition for various representatives of aquatic fauna.
2. The objective side of the crime being commented on is an alternative to the most diverse illegal actions (inactions): in the production of wood alloy, construction of bridges, dams, transportation of wood and other forest resources, in carrying out blasting and other work, for example, laying a bypass channel, flooding a forest area or, conversely, draining water from a reservoir, as well as operating water intake structures and pumping mechanisms in violation of the rules for the protection of fish stocks.
3. The law formulates this act as a crime with a material composition, naming as its socially dangerous consequences the mass death of fish or other aquatic animals, the destruction of significant amounts of food reserves or other grave consequences, for example, the destruction of a spawning ground, the loss of a particular river of fishery significance etc.
4. From the subjective side in relation to the socially dangerous consequences that have occurred, the guilt of the subject of the crime most often manifests itself in the form of negligence, although in some cases intentional guilt is not excluded.
5. The subject of this crime may be a person whose economic activity consists of organizing the production of timber rafting or blasting operations, or a person carrying out construction or using water reserves to carry out production processes.
‹ Article 256. Illegal extraction (catch) of aquatic biological resourcesUp Article 258. Illegal hunting ›
Article 257 of the Tax Code of the Russian Federation. The procedure for determining the value of depreciable property (current version)
The tax authority, in assessing the disputed amount of income tax, motivated its decision by the fact that the organization underestimated the tax base for income tax as a result of a one-time write-off of expenses for the purchase of boilers, each of which meets all the characteristics of a fixed asset, which are independent units of fixed assets.
The court's position.
Within the meaning of Article 247 of the Tax Code of the Russian Federation, the object of taxation for corporate income tax is the profit received by the taxpayer. Profit for Russian organizations is recognized as income received, reduced by the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation.
According to Article 252 of the Tax Code of the Russian Federation, expenses are recognized as justified and documented expenses incurred (incurred) by the taxpayer. Justified expenses mean economically justified expenses, the assessment of which is expressed in monetary form. Documented expenses mean expenses supported by documents drawn up in accordance with the legislation of the Russian Federation.
According to the legal position of the Constitutional Court of the Russian Federation, set out in Definitions dated 06/04/2007 N 366-O-P, dated 06/04/2007 N 320-O-P, the general criteria for classifying certain costs as expenses specified in the contested provisions of Article 252 and other articles Chapter 25 of the Tax Code of the Russian Federation must be applied in the system of current legal regulation, taking into account the goals and general principles of taxation, as well as the legal positions of the Constitutional Court of the Russian Federation.
Chapter 25 of the Tax Code of the Russian Federation regulates the taxation of profits of organizations and establishes for these purposes a certain correlation between income and expenses and the connection of the latter specifically with the organization’s profit-making activities. The same criterion is directly outlined in paragraph four of paragraph 1 of Article 252 of the Tax Code of the Russian Federation as the main condition for recognizing costs as reasonable or economically justified: any costs are recognized as expenses if they are incurred to carry out activities aimed at generating income.
The Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 N 53 “On the assessment by arbitration courts of the validity of a taxpayer receiving a tax benefit” states that the validity of expenses taken into account when calculating the tax base should be assessed taking into account the circumstances indicating the taxpayer’s intentions to obtain an economic effect as a result of real business or other economic activity. In this case, we are talking specifically about the intentions and goals (direction) of this activity, and not about its result.
The disputed buildings already had and operated a heating system, which was worn out and did not meet safety requirements, and therefore required repairs. Heating boilers were an integral part of the heating system of the buildings in which they were installed, and these boilers could not be used independently in isolation from the heating system, since they would not be able to perform their main function - to heat the building. In this regard, the purpose of the company’s acquisition of boilers was to use them as part of a major overhaul of an existing heating system, and not to create a new heating system.
On the organization’s balance sheet, it is not the boilers or the heating system of the building that are taken into account as fixed assets, but the buildings themselves, which are heated by the controversial boilers through the heating system. The need for a major overhaul of the heating system of the organization's industrial buildings is confirmed by an order of the state energy supervision body.
The tax authority's arguments are unfounded, since the tax authority did not provide evidence that the replacement of heating boilers during the renovation of the administrative building entailed a change in the technological or service purpose of the building, an increase in its production capacity or an increase in the technical and economic indicators of the fixed asset and such a replacement cannot be considered such as modernization, reconstruction or technical re-equipment.
Based on the provisions of Articles 256 - 258, Article 260 of the Tax Code of the Russian Federation, as well as the Accounting Regulations “Accounting for Fixed Assets” PBU 6/01, approved by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n, the court correctly concluded that the company lawfully attributed the them the costs of replacing heating boilers in it to the costs of repairing fixed assets taken into account for tax purposes in the manner established by Article 260, and not by Articles 256 - 258 of the Tax Code of the Russian Federation.
(Based on the materials of the Resolution of the Federal Antimonopoly Service of the North Caucasus District dated 06.08.2010 N A53-17419/2008.)
Attention!
In practice, a business entity may have a question: is the initial cost of the leased property included in the amount of the commission paid to the lessor due to the latter’s execution of the leasing transaction?
In this case, the commission paid to the lessor is not included in the initial cost of the property.
This position is reflected in the explanations of official bodies.
Thus, the letter of the Ministry of Finance of the Russian Federation dated June 25, 2007 N 03-03-06/1/397 states that the costs of payment by the lessee of a commission fee to the lessor for the preparation of documentation necessary for concluding a leasing agreement can be taken into account in the reporting period by which they are attributed in accordance with the concluded agreement or distributed by the taxpayer independently.
This position is also reflected in judicial practice.
The crux of the matter.
The tax authority conducted an on-site tax audit, based on the results of which a report was drawn up, according to which the facts of incomplete payment of income tax by the company were established.
Based on the said act and the objections submitted by the company, the tax authority made the contested decision.
The tax authority refers to the fact that the costs of paying the commission for arranging financing under a leasing agreement are an integral part of lease payments and cannot be attributed to expenses taken into account when determining the tax base for corporate income tax, since these expenses must be taken into account in the initial cost fixed asset.
The organization entered into a leasing agreement, according to which the organization received for temporary use and possession hopper cars for business activities, purchased by the lessor from the organization on the basis of a purchase and sale agreement.
This property was accepted by the company to carry out its main activity related to the provision of transport services.
The court's position.
In accordance with paragraph 2 of Article 252 of the Tax Code of the Russian Federation, expenses, depending on their nature, as well as the conditions for implementation and areas of activity of the taxpayer, are divided into expenses associated with production and sales, and non-operating expenses.
The organization, in accordance with the terms of the leasing agreement, in addition to the obligation to pay lease payments and the redemption value of the property, is required to pay a commission for the financing service.
This payment is made by the organization in a lump sum within five days from the date of signing the agreement.
This payment is not a leasing payment and is not included in the redemption value of the property, but is an independent payment paid for the service provided by the lessor for arranging financing and organizing a leasing transaction.
Article 272 of the Tax Code of the Russian Federation does not contain any other method of accounting for such expenses other than their one-time recognition in the reporting period to which they relate.
The courts also examined the tax authority's argument that the company needed to include the costs of paying the commission for arranging financing in the initial cost of the leased asset, as well as the recognition of these costs for profit tax purposes by calculating depreciation.
This argument contradicts the requirements of paragraph 1 of Article 257, paragraph 4 of Article 259, paragraph 5 of Article 270 of the Tax Code of the Russian Federation.
Under these circumstances, the expenses incurred by the company as part of the execution of the leasing agreement on the commission for arranging financing are economically justified and are legally included in the costs associated with production and sales in accordance with the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation.
(Based on the materials of the Resolution of the Federal Antimonopoly Service of the Moscow District dated February 18, 2008 N KA-A40/240-08.)
The Federal Tax Service of Russia, in a letter dated November 29, 2010 N ШС-17-3/1835, explained that a material object (a set of material objects) is considered for tax purposes as fixed assets only if it (she) is capable of performing a certain function, used in production or management of an organization. From this point of view, computer technology without minimal software cannot be used in any way in the taxpayer’s activities.
Taking into account the above, in the case of purchasing computer equipment from a trade organization with the appropriate software that makes it possible to realize the consumer properties of this computer equipment publicly declared by the seller, separating the cost of such software from the cost of the equipment is not required.
The letter of the Ministry of Finance of Russia dated June 25, 2007 N 03-03-06/1/398 states that paragraph 1 of Article 257 and paragraph 8 of part 2 of Article 250 of the Tax Code of the Russian Federation do not establish any specific features for determining the value of gratuitously received property depending on the whether the transferring party is a Russian or foreign organization. In this regard, a taxpayer who has received depreciable property free of charge from a foreign organization has the right to confirm its value by conducting an independent assessment by an appraiser acting in accordance with the legislation of the Russian Federation.
Thus, it is the transferor’s responsibility to determine the residual value for the purposes of applying Sec. 25 Tax Code of the Russian Federation. At the same time, a foreign organization does not carry out tax accounting of fixed assets in accordance with this chapter.
Consequently, since a foreign person donating equipment does not carry out tax accounting in accordance with Chapter. 25 of the Tax Code of the Russian Federation, the Russian organization - the recipient of the equipment, when forming the initial cost, proceeds from its market price without using the “residual value” indicator.
Attention!
As the Ministry of Finance of Russia explained in letter dated June 24, 2010 N 03-07-10/10, the costs of paying for electricity and water purchased by an organization to ensure the construction of the specified property are subject to inclusion in the initial cost of the fixed asset being constructed.
The Ministry of Finance of Russia in letters dated November 12, 2008 N 03-03-06/1/623 and dated July 10, 2008 N 03-03-06/1/401 indicated that if newly built power plants require connection to existing electrical networks, then they can be put into operation and used in the production process, then the fee for their technological connection should be considered as an expense to bring the fixed asset object (power plant) to a state in which it is suitable for use.
In a letter dated January 23, 2009 N 03-03-05/6, the financial department reports that expenses in the form of fees for the technological connection of energy receiving devices (power plants) to electrical networks, provided they meet the criteria established by Article 252 of the Tax Code of the Russian Federation, are taken into account for the purposes of taxation of corporate profits as part of other expenses associated with production and sales.
If expenses in the form of fees for technological connection in accordance with Article 318 of the Tax Code of the Russian Federation and the accounting policy applied by the taxpayer for profit tax purposes are classified as indirect expenses, then such expenses are included in the expenses of the current tax (reporting) period.
In letters dated 05/08/2009 N 03-03-06/1/316 and dated 05/25/2009 N 03-03-06/1/342, the Ministry of Finance confirmed its position, indicating that the stated procedure for accounting for expenses also applies to fees, charged for connection to public infrastructure systems.
Until recently, local tax authorities disputed the legality of accounting for tax purposes as part of current expenses the costs of provision by an electric grid organization of services for connecting the taxpayer's telecommunication network to public networks, including work on laying cables. According to the tax authorities, such costs relate to capital expenses that increase the initial cost of the object and are subject to write-off through depreciation.
The courts on this issue proceed from the fact that if newly built power plants require connection to existing electrical networks, after which they can be put into operation and used in the production process, then the fee for their technological connection should be considered as an expense for bringing the facility to the main stage. means (power plant) to a state in which it is suitable for use.
In this case, expenses in the form of fees for technological connection are taken into account for tax purposes when writing off the initial cost of an object of depreciable property through the depreciation mechanism in accordance with Articles 257 - 259 of the Tax Code of the Russian Federation.
However, if the taxpayer does not create or construct new power plants, as well as their modernization or major repairs, the costs of paying for services for connecting to public networks are taken into account as part of current ones.
Thus, the Thirteenth Arbitration Court of Appeal in Resolution No. A56-15280/2008 dated December 10, 2008 indicated that if the taxpayer (enterprise) does not have a fixed asset (power plant) on its balance sheet, which is subject to commissioning by connecting to existing electrical networks, the fee for technological connection cannot be considered as an expense to bring the fixed asset to a state suitable for use.
The depreciation mechanism defined by Articles 257 - 259 of the Tax Code of the Russian Federation does not apply to fees for connection to electrical networks if there is no fixed asset on the taxpayer’s balance sheet. The court considered that in the case before it, the taxpayer was rightfully taken into account on the basis of subparagraph 6 of paragraph 1 of Article 254 of the Tax Code of the Russian Federation as part of the current costs of paying for services for connecting to public networks.
Attention!
When applying paragraph 2 of Article 257 of the Tax Code of the Russian Federation, it is also necessary to keep in mind the following.
According to the position of the Ministry of Finance of Russia, set out in letter dated 01.02.2011 N 03-03-06/1/49, expenses incurred by the lessee for delivery and bringing the leased asset to a condition in which it is suitable for use are not included in the initial cost of the leased asset .
In a letter dated January 20, 2011 N 03-03-06/1/19, the Ministry of Finance of Russia noted that the lessee’s expenses associated with putting the leased property into operation, made in accordance with the terms of the leasing agreement, are not included in the initial cost of the depreciable property. The specified expenses can be taken into account for the purposes of taxation of the organization's profit, provided that they meet the criteria established by Article 252 of the Tax Code of the Russian Federation, on the basis of the relevant provisions of the Tax Code of the Russian Federation.
In a letter dated 02/11/2011 N 03-03-06/1/89, the Ministry of Finance of Russia came to the conclusion that the initial cost of fixed assets is not subject to change in connection with the registration of rights to real estate and expenses for it.
As the Ministry of Finance of Russia indicated in letter dated 02/04/2011 N 03-03-06/1/62, an increase in the amount of lease payments under a leasing agreement does not increase the initial cost of the property that is the subject of leasing.
In a letter dated January 13, 2011 N 03-03-06/1/8, the financial department explained that expenses in the form of a one-time payment for the use of subsoil are not included in the initial cost of an intangible asset (license), determined in the manner established by paragraph 1 of Article 325 of the Tax Code. Code of the Russian Federation (hereinafter referred to as the Code), and are taken into account as part of other expenses associated with production and sales, on the basis of subparagraph 1 of paragraph 1 of Article 264 of the Code.
Attention!
If expenses are incurred for the purpose of ongoing maintenance of fixed assets in working condition, then such expenses are taken into account as part of other expenses associated with production and sales, as repair expenses in accordance with Article 260 of the Code, subject to their economic justification and documentary evidence (Article 252 of the Code ).
Thus, when distinguishing between modernization and repair of fixed assets, the change in the technological or service purpose of the equipment or its acquisition of other new qualities is of decisive importance. At the same time, the cost of the work, in accordance with Ch. 25 of the Code is not a criterion for such a distinction.
This position is set out in the letter of the Ministry of Finance of Russia dated April 22, 2010 N 03-03-06/1/289.
At the same time, in a letter dated 03.08.2010 N 03-03-06/1/518, the Ministry of Finance of Russia came to the conclusion that the replacement of individual failed elements of a fixed asset, not related to a change in the technological or service purpose of the equipment, or a change in its technical and economic indicators, is not a modernization of depreciable property and can be considered as a repair of a fixed asset (Article 260 of the Tax Code of the Russian Federation).
Attention!
There is no definition of major repairs in Chapter 25 of the Tax Code of the Russian Federation.
In accordance with paragraph 14 of Article 1 of the Town Planning Code of the Russian Federation, reconstruction is a change in the parameters of capital construction projects, their parts (height, number of floors, area, production capacity indicators, volume) and the quality of engineering and technical support.
The concept of “repair” is absent in the current tax and accounting legislation.
If we proceed from the definition of reconstruction, we can draw a conclusion “from the opposite”, namely: repair work does not change the purpose of the object, and also does not give the object of fixed assets new qualities compared to the original state (in particular, they do not increase production areas and capacities ).
Thus, repair work should include a set of measures aimed at maintaining or restoring the original operational qualities of a fixed asset.
According to experts from the financial department (letter of the Ministry of Finance of Russia dated November 23, 2006 N 03-03-04/1/794), when defining the terms “major repairs” and “reconstruction” one should be guided by:
— Regulations on carrying out scheduled preventative repairs of industrial buildings and structures. MDS 13-14.2000, approved by Decree of the USSR State Construction Committee of December 29, 1973 N 279;
— Departmental construction standards VSN 58-88 (R) “Regulations on the organization and implementation of reconstruction, repair and maintenance of residential buildings, communal and socio-cultural facilities”, approved by Order of the State Committee for Architecture under the USSR State Construction Committee dated November 23, 1988 N 312;
- Letter of the USSR Ministry of Finance dated May 29, 1984 N 80 “On the definition of the concepts of new construction, expansion, reconstruction and technical re-equipment of existing enterprises.”
Thus, in accordance with paragraph 5.1 of the Regulations on the organization and conduct of reconstruction, repair and maintenance of residential buildings, communal and socio-cultural facilities, major repairs must include troubleshooting of all worn-out elements, restoration or replacement (except for the complete replacement of stone and concrete foundations, load-bearing walls and frames) into more durable and economical ones, improving the performance of the buildings being repaired. In this case, an economically feasible modernization of a building or facility, its redevelopment can be carried out, without causing changes in the main technical and economic indicators of the building.
In addition to the above documents, some courts use other documents to classify the work performed, in particular:
— Methodology for determining the cost of construction products on the territory of the Russian Federation. MDS 81-35.2004, approved by Decree of the State Construction Committee of Russia dated March 5, 2004 N 15/1;
— joint letter of the USSR State Planning Committee N NB-36-D, USSR State Construction Committee N 23-D, USSR Stroybank N 144, USSR Central Statistical Office N 6-14 dated 05/08/1984 “On the definition of the concepts of new construction, expansion, reconstruction and technical re-equipment of existing enterprises” ;
— opinions of specialists and experts on the condition of the fixed asset before and after repairs;
— instructions (decisions) of government agencies issued to organizations on mandatory repairs of fixed assets (buildings).
From the analysis of the above documents, we can conclude that when classifying the work performed, the purpose of its implementation, as well as the consequences for the fixed asset, are of decisive importance. In particular, the purpose of repair is to eliminate faults (replacement of worn or broken parts (structures)), the presence of which makes the operation of the fixed asset impossible or dangerous.
The purpose of reconstruction is to improve (increase) the initially adopted standard indicators of the functioning of a fixed asset object, for example, increasing the useful life, increasing capacity, etc.
According to the Russian Ministry of Finance, we are talking about repairs only if without a new part (part) the inventory item would not be able to work. In this case, the decisive factor is not how its operational characteristics have changed, but the fact that the operability of the inventory object remains, which has not changed the performance of its functions as a whole (letter of the Ministry of Finance of Russia dated June 22, 2004 N 03-02-04/5, see also letter of the Department of Tax Administration of Russia for Moscow dated August 18, 2004 N 26-12/53999).
For questions about classifying certain works as major repairs or reconstruction, the Russian Ministry of Finance advises contacting the Federal Agency for Construction and Housing and Communal Services.
For clarification on questions about whether the work belongs to the overhaul of housing and communal services facilities, you should contact the Ministry of Regional Development of the Russian Federation. This was indicated by the Russian Ministry of Finance in letter dated July 28, 2009 N 03-03-06/1/494.
Attention!
Currently, there is no clear official position on whether installing software on them increases the cost of computers.
At the same time, the Ministry of Finance of Russia in letter dated July 1, 2008 N 07-05-06-149 states that the exclusive right of the author and other copyright holder to use a computer program is recognized for profit tax purposes as an intangible asset subject to depreciation in the manner established Articles 256 - 259 of the Tax Code of the Russian Federation.
At the same time, in this letter, the financial department does not consider the possibility of increasing the cost of computers when installing software on them.
The Federal Antimonopoly Service of the Moscow District, in Resolution No. KA-A40/2583-09 dated April 3, 2009, concluded that installing an additional program on it does not increase the cost of a fixed asset, if the fixed asset could be used without this program. As the court indicated, computer equipment (processors, monitors, server, printer) is suitable for use as personal computers with other software, that is, without special software obtained from the software supplier company. It should be noted that the court considered the issue of obtaining a non-exclusive license for the software by the taxpayer, however, in our opinion, the court’s conclusions regarding the possibility of increasing the cost of a fixed asset - a computer - can be applied to the situation under consideration.
As can be seen from the reviewed Resolution, the court took into account the fact that without an installed program, computers could perform their functions. It seems possible to reach the opposite conclusion if it is proven that without an installed program on the computer it would be impossible to work (for example, an operating system).
Attention!
Regulations ch. 25 “Organizational Income Tax” of the Tax Code of the Russian Federation does not establish the need to increase the value of an intangible asset in the event of its modification, change, or improvement.
The Ministry of Finance of Russia in letter dated May 25, 2009 N 03-03-06/2/105 indicates that, according to Ch. 25 of the Tax Code of the Russian Federation, intangible assets are depreciated, but their initial value does not increase as a result of modernization, reconstruction, etc.
In a letter dated 08/18/2008 N 03-03-06/2/105, the financial department indicates that the costs of updating a computer program, the exclusive right to use of which belongs to the organization, can be taken into account as expenses for the purposes of taxing the profits of organizations on the basis of subparagraph 26 paragraph 1 of article 264 of the Tax Code of the Russian Federation.
In a letter dated October 23, 2009 N 03-03-06/1/681, the Ministry of Finance of Russia indicates that in accordance with subparagraph 26 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation, as part of other expenses associated with production and (or) sales, expenses associated with with the acquisition of the right to use computer programs and databases under agreements with the copyright holder (license agreements). These expenses also include expenses for the acquisition of exclusive rights to computer programs worth less than 20,000 rubles. and updating computer programs and databases. Expenses for the implementation and modification of a software product for a computer are also taken into account as part of other expenses in accordance with subparagraph 26 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation.
FAS Moscow District, in Resolution No. KA-A40/5421-09 dated June 17, 2009, concludes that the costs of adapting a software product do not increase the cost of an intangible asset, since Ch. 25 of the Tax Code of the Russian Federation directly establishes: intangible assets include only the exclusive right of the author and other copyright holder to use a computer program or database. At the same time, the contract for adaptation of the software product provided for a non-exclusive license.
You can cite the position of the Federal Antimonopoly Service of the Moscow District, set out in Resolution No. KA-A40/2218-09 dated 01.04.2009. The court recognized as erroneous the conclusion of the tax authority that the taxpayer should increase the generated value of intangible assets each time he purchases legal services related to trademarks. As the court explained, paragraph 2 of Article 257 of the Tax Code of the Russian Federation regulates the procedure for changing the tax accounting of the cost of fixed assets (in the case of completion, additional equipment, modernization, reconstruction, technical re-equipment). Provisions of Ch. 25 of the Tax Code of the Russian Federation do not contain similar rules regarding intangible assets.
We believe that this conclusion of the court can be applied in the situation under consideration. Consequently, the norms of the Tax Code of the Russian Federation do not provide for the possibility of increasing the value of an intangible asset - a program in the event of its renewal.
It is worth considering that, on the basis of subparagraph 26 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation, other expenses associated with production and sales include expenses associated with the acquisition of the right to use computer programs and databases under agreements with the copyright holder (under license agreements) . These expenses also include expenses for the acquisition of exclusive rights to computer programs worth less than 20,000 rubles. and updating computer programs and databases.
Thus, an organization should not increase the value of an intangible asset if it is renewed.
