How can you reimburse your gasoline costs? A personal car is used for production purposes: how to account for fuel

Quite often, the specifics of the activities of a company that carries out, for example, delivery of sold goods directly to customers’ homes, suggests that the staff must include employees who have their own transport - a car or motorcycle. However, the employer cannot exploit the property of its employee forcibly and free of charge. To formalize relations in which the interests of the owner of such property will be taken into account, Russian legislation offers two possible schemes. And as usual, each of them has its own nuances.

Compensation

According to the provisions of Article 188 of the Labor Code, the use of an employee’s personal property in the interests of the company is possible only with his consent. At the same time, he is paid compensation and also reimbursed expenses associated with the use of the property. The amount of such compensation depends solely on what agreements the parties reach. Specific amounts are fixed in the employment contract. However, the higher it is, the larger the size of the accompanying tax expenses for each of the interested parties.

A company on OSNO can take into account the payment of compensation to an employee for the use of a personal car in the reduction of income tax, based on subparagraph 11 of paragraph 1 of Article 264 of the Tax Code. A similar opportunity is provided to companies using a simplified taxation system (subclause 12, clause 2, article 346.16 of the Tax Code of the Russian Federation). However, both of them must be guided in matters of determining maximum amount such expenses by the standards established by Decree of the Government of the Russian Federation No. 92. They, in turn, assume that for passenger cars with an engine capacity of up to 2,000 cubic centimeters inclusive, compensation should be 1,200 rubles per month, and for cars over 2,000 cubic centimeters - 1,500 rubles per month. For motorcycles, the Decree provides a compensation limit of 600 rubles. That is, regardless of the amount that the employee and employer agree on, the part of compensation exceeding this limit does not participate in tax expenses.

We should also not forget about the requirement of Article 252 of the Tax Code, which also applies to “simplers”: tax expenses are justified and documented expenses aimed at generating income. The latter is beyond doubt among tax authorities if the employee’s work actually involves constant travel in accordance with job responsibilities. Inspectors, as a rule, are more picky about the “paper” side of the issue. So the very fact of assigning compensation for the use of personal transport, as well as its amount, should be recorded in the order of the head of the organization. The employee, in turn, must provide a copy technical passport vehicle. And, of course, for the time during which the employee was on vacation, a business trip, on sick leave, in a word, when he actually did not work and his car was not used, compensation is not paid.

Now let’s look at compensation for a personal car from the point of view of taxation of the employee’s income. According to paragraph 3 of Article 217 of the Tax Code, all types of established current legislation of the Russian Federation, compensation payments related to the taxpayer’s performance of labor duties, within the limits of legally established norms, are not subject to personal income tax.

It must be said that the regulatory authorities have long been confident that the limits established by Government Resolution No. 92 are also valid in this case, and all payments in excess of the stated norms should not only be excluded from tax expenses, but also subject to personal income tax (letters from the Ministry of Finance dated March 26, 2007 No. 03-04-06-01/84, dated June 1, 2007 No. 03-04-06-01/171, dated December 24, 2007 No. 03-11-04/3/513). However, later, in letters dated December 31, 2010 No. 03-04-06/6-327 and dated October 25, 2012 No. 03-04-06/9-305, the financial department changed its position. The authors of these letters referred to the fact that Chapter 23 of the Tax Code does not provide for compensation for the use of an employee’s personal property for business purposes. Based on this, it was concluded that one should only be guided Labor Code, which in turn assumes that the amount of compensation depends entirely on the agreements of the parties. Similar conclusions emerge from the provisions of Article 9 of Law No. 212-FZ of July 24, 2009 and Article 20.2 of Law No. 125-FZ of July 24, 1998 (as amended on February 29, 2012): the entire amount of compensation is exempt from taxation of any contributions, stipulated in a written agreement between the employee and the company.

Car rental

In order for the organization not to be tied to the above-mentioned standards and to be able to fully take into account compensation (more precisely, its analogue) when calculating the tax base, you can register the use of the employee’s personal transport using the proposed Article 642 Civil Code method - by concluding a rental agreement for a vehicle without a crew. In this case, the parties sign an agreement according to which the employee transfers his personal car for temporary use to the company and receives a monthly payment for it. Sum rent is fully taken into account in tax expenses on the basis of subparagraph 10 of paragraph 1 of Article 264 of the Tax Code for general regime organizations and on the basis of subparagraph 4 of paragraph 1 of Article 346.16 of the Tax Code - for firms using the simplified tax system.

But for the owner of a car, the rental payment will be income subject to personal income tax of 13% on the basis of subparagraph 4 of paragraph 1 of Article 208 of the Tax Code. When paying it to an employee, the organization will have to fulfill its duties as a tax agent and withhold the appropriate amount of tax (Article 226 of the Tax Code of the Russian Federation). There are no rental fees. According to paragraph 3 of Article 7 of Law No. 212-FZ, as well as subparagraph 2 of paragraph 1 of Article 20.2 of Law No. 125-FZ, any payments and other remuneration made within the framework of civil contracts related to the transfer of property for use, the calculation base for calculating contributions is not increased.

Thus, by formalizing the use of an employee’s car in the interests of the company with a lease agreement, we have the opposite situation. If, upon payment of an adequate amount of compensation additional expenses tax burden falls on the employer, then in this case the employee will have to sacrifice part of the income. However, nothing prevents you from increasing the price in the lease agreement by 13/87 in order to cover the costs associated with payment of personal income tax. For the opportunity to write off corresponding amounts This will not affect the organization's expenses. The main thing is not to inflate the cost of rent so much that it differs radically from the market average.

Auto by proxy

There is one more nuance in the issue of paying compensation for the use of employee property. So, it’s no secret that you can drive a car on the basis of a power of attorney. However, if such a car is used in the interests of the company, then you should be prepared for the fact that compensation payments for it will be subject to taxation according to full program. Thus, in letters of the Ministry of Finance dated September 21, 2011 No. 03-04-06/6-228 and dated February 21, 2012 No. 03-04-06/3-42 it is clarified that paragraph 3 of Article 217 of the Code provides for exemption from Personal income tax compensation only for personal property. In addition, the employer's reimbursement of employee expenses related to the use of property that does not belong to him is not provided for by the Labor Code. And in continuation of the issue under consideration, in letter dated May 3, 2012 No. 03-03-06/2/49, specialists from the financial department categorically state: for the purposes of Chapter 25 of the Tax Code, the vehicle for the use of which compensation is paid to the employee must belong to him by right of ownership . This means that even in the simplified taxation system it is necessary to follow this rule, excluding payment of compensation for a car by proxy from tax expenses.

Payment for fuel and lubricants

Special attention should be paid to the issue of reimbursement of the cost of gasoline for an employee with personal transport. If we're talking about about payment of fixed monthly compensation, then its size, according to the Ministry of Finance, already includes all costs of operating the car, including fuel, lubricants, maintenance and Maintenance(letter dated January 31, 2013 No. 03-11-11/38). That is, in fact, this means that even with constant travel for official purposes, write off when calculating the “profitable” base actual cost You won’t be able to save any spent gasoline - you need to be guided by the same meager by today’s standards standards from Resolution No. 92.

This problem can again be solved with the help of a lease agreement. Just write in it additional compensation for fuel and lubricant costs as a separate item. In this case, such payments to the employee will not be subject to “salary” fees, because they are not remuneration and do not form the employee’s income. At the same time, they can be taken into account when calculating income tax or “simplified” tax. True, another nuance arises here. The fact is that, in the opinion of the Ministry of Finance, expressed, in particular, in letter dated November 17, 2011 No. 03-11-11/288, when writing off gasoline costs, one should be guided by the fuel consumption standards contained in the Methodological Recommendations approved by the Order of the Ministry of Transport of Russia dated March 14, 2008 No. AM-23-r. However, this document is intended for motor transport enterprises - this follows from its text. And in Tax Code no such rules are mentioned. So it won't big mistake, if the company takes into account full cost burned fuel in their tax expenses. Moreover, such an approach has also been approved in arbitration practice (decision of the Supreme Arbitration Court of the Russian Federation dated August 14, 2008 No. 9586/08, resolution of the Federal Antimonopoly Service of the West Siberian District dated January 27, 2009 No. F04-7730/2008(17508-A03-46)) .

But on the issue of the need to issue waybills as confirmation of the official purposes of each trip, judges and tax authorities are basically in agreement. These are the same necessary primary documents, such as receipts and invoices confirming the purchase of gasoline. And accordingly, their absence threatens the company with the exclusion of expenses for fuel and lubricants from tax calculations. It is necessary to issue waybills both in the case of using an employee’s car on the basis of a rental agreement, and when paying compensation.

Compensation for using a personal car for business purposespaid if the car was used with the consent (knowledge) of the employer (Article 188 of the Labor Code of the Russian Federation). You will learn further in the article how this compensation is taken into account.

Does compensation for using a personal car for business purposes reduce income tax?

The amount of compensation for the use of a personal car for business purposes is included in expenses that reduce the income tax base (subclause 11, clause 1, article 264 of the Tax Code of the Russian Federation), but this can only be done within the limits of legally approved norms.

How to take into account for income tax purposes the costs of purchasing fuels and lubricants (fuels and lubricants) for such a car? Is it possible to reimburse the cost of gasoline for personal vehicles used for business purposes, based on the text of clause. 11 clause 1 art. 264 of the Tax Code of the Russian Federation, which provides for the possibility of taking into account the costs of maintaining official transport?

The judges believe: it is possible if the expenses are justified and have a production focus. For example, the arbitrators of the West Siberian District (resolution No. A46-15928/2013 dated September 26, 2014) made a decision that was positive for the taxpayer, having analyzed the agreements concluded with employees on the use of personal vehicles for business purposes. The contracts stipulated that employees were obliged to:

• use personal cars on the instructions of the organization for the purposes and terms specified in the contract;
• maintain vehicles in good condition;
• produce at your own expense current and major renovation and bear other expenses for their maintenance;
• provide the organization with documents confirming the facts of using cars for official purposes (waybill) and purchasing fuel and lubricants for refueling cars.

The organization, for its part, pledged to instruct employees to perform tasks using personal cars only for business purposes and to reimburse expenses for fuel and lubricants.

Taking into account the fact that the cars were used by the employees not at their own discretion, but on the instructions of the organization, that is, they were actually in its use and possession, the judges concluded that the expenses for gasoline were justified and were incurred as part of production activities. And therefore, they can reduce taxable profit on the basis of subparagraph. 11 clause 1 art. 264 of the Tax Code of the Russian Federation, despite the fact that these are not official, but personal cars of employees.

The arbitrators also emphasized that reimbursement of actual expenses does not constitute payment of compensation for the use of a personal car for business purposes. This means that the reimbursed amounts are not subject to the standardization provided for in subparagraph. 11 clause 1 art. 264 of the Tax Code of the Russian Federation for amounts of compensation, and can be taken into account in full.

On the question of whether it is legal to write off expenses for fuel and lubricants in actual volume, and not according to standards, see our material .

Please note that in the case considered by the court, employees were only reimbursed for gasoline; they did not receive compensation for using a personal car for business purposes. At the same time, the issue of taking into account reimbursement of fuel and lubricants in expenses in addition to such compensation is also controversial, since the Ministry of Finance of Russia (letters dated April 10, 2017 No. 03-03-06/1/21050 and dated September 23, 2013 No. 03-03- 06/1/39239) believes that the costs of fuel and lubricants are already taken into account in compensation.

For an alternative point of view, see our material .

Results

For the use of a personal car for business purposes, the employee is entitled to compensation. However, it will be paid only if such use was agreed with the employer and actually took place. The amount of compensation that can be included in expenses for income tax purposes is limited by law. The question of whether it is possible to additionally take into account the costs of purchasing fuel and lubricants is controversial.

Employees use personal vehicles for business purposes, but fuel and lubricants are issued by the institution. How to correctly establish the procedure for writing off fuel and lubricants? Do I need to issue waybills?

Answer

Relations with an employee regarding the use of a personal car can be formalized in one of the following ways:

1. Conclude a rental agreement (free use) of a vehicle with the employee.

In the first case, draw up an additional agreement to the employment contract. In it, determine the amount of compensation and the period during which it is paid. Be sure to issue an Order for the payment of such compensation.

In the second case, there are two types of lease agreements Vehicle: with and without crew. Legal regulation Each of these agreements has its own characteristics.

If the institution itself provides the rented car with gasoline, then to confirm fuel consumption, the employee must issue waybills. For more information on how to write off gasoline using waybills, see here.

See rationale for details.

Natalia Guseva, director of the Center for Education and internal control Institute of Additional vocational education"International Financial Center", State Advisor of the Russian Federation, 2nd class, Ph.D. n.

How to account for and pay for the rental of an employee’s personal car

Quite often, institution employees use personal cars to carry out official errands. In this case, the employer must reimburse them for expenses by assigning appropriate remuneration.

In this case, relations with an employee regarding the use of a personal car can be formalized in one of the following ways:

1. Assign compensation to the employee - this payment is established by the employment contract and is paid within the framework of labor relations (Article 188 of the Labor Code of the Russian Federation).
2. Conclude a vehicle rental agreement with the employee.

It is the second case that we will consider in detail in this recommendation.

Types of vehicle rental agreements

There are two types of vehicle rental agreements: with and without crew. The legal regulation of each of these agreements has its own characteristics.

Rental with crew. Under such an agreement, the lessor must not only provide the lessee with a car, but also provide him with services for its management and technical operation (Article 632 of the Civil Code of the Russian Federation).

Rent without crew. By concluding such an agreement, you can simply receive the employee’s car for temporary possession and use (Article 642 of the Civil Code of the Russian Federation).

Situation: is it possible to conclude a rental agreement for a vehicle with a crew with an employee of the institution

It is safe to do this if the employee - individual entrepreneur, who has a driver and a mechanic.

After all, such conditions are prescribed in the Civil Code. Thus, when renting a vehicle with a crew from the lessor, drivers and technicians must work under an employment contract (Clause 2 of Article 635 of the Civil Code of the Russian Federation). Therefore, a non-entrepreneur without personal employees cannot enter into such an agreement. Otherwise, the court will invalidate such a document (Article 168 of the Civil Code of the Russian Federation).

Advice: instead of a vehicle rental agreement with a crew, it is better to conclude two separate agreements with the employee.

One is about bareboat rental, and the second is about management and technical operation services.

In this case, you have the right to ignore the condition that the employee must be registered as an entrepreneur and he must have his own wage-earners. Important detail: the provision of management and technical maintenance services should not be included in job responsibilities employee. Otherwise, during an audit, tax inspectors may recognize payments under such a service agreement as economically unjustified and withdraw these expenses (Article 252 of the Tax Code of the Russian Federation).

Documenting

Reflect transactions for obtaining a car for rent in accounting on the basis of the vehicle acceptance and transfer certificate. It will be the primary document reflecting the fact of transfer of property from the lessor to the lessee. The need to draw it up follows from the provisions of Part 1 of Article 9 of the Law of December 6, 2011 No. 402-FZ and paragraph 7 of the Instructions for the Unified Chart of Accounts No. 157n.

United standard form There is no document confirming the fact of transfer. Therefore, compose it in any form. Don't forget to include everything necessary details. The main thing is to include information in the transfer and acceptance certificate, which will then allow you to accurately identify the property transferred to the tenant: the cost of the car, its mileage, as well as the technical condition based on the inspection results.

In addition, to register the fact of transfer, you can use the unified act form form No. 0504101, which was approved by Order of the Ministry of Finance of Russia dated March 30, 2015 No. 52n.

Let’s talk separately about the act of providing services for renting a car. Such a document needs to be drawn up only if it is provided for in the lease agreement. The frequency of preparation is also specified in the contract - monthly, quarterly or even less frequently. If the contract does not contain a word about the act, then expenses can be taken into account without it. This point of view is shared by the Russian Ministry of Finance (letters dated March 24, 2014 No. 03-03-06/1/12764, dated November 16, 2011 No. 03-03-06/1/763).

Accounting: rent and lease payments

KVR and KOSGU

Expenses under the lease agreement for an employee’s personal car are paid according to element of expense type 244 “Other purchase of goods, works and services to meet state (municipal) needs.”

In accounting and reporting, enter expenses according to subarticle KOSGU 224 “Rent for the use of property.” That is, they need to be reflected in accounts that are linked to this code: 109.00.224, 401.20.224, 302.24.

This is stated in sections III and V of the instructions approved by order of the Ministry of Finance of Russia dated July 1, 2013 No. 65n.

Postings

The employee’s car, which the institution receives for rent, should be reflected in the balance sheet on account 01 “Property received for use.” For information on how to do this, see here.

In accounting for budgetary institutions:

To reflect settlements with the lessor, make the following entries in your accounting:

This procedure follows from the provisions of paragraphs 60, 61, 128, 129, 153 of Instruction No. 174n.

An example of how to reflect rental amounts in the accounting of a budgetary institution (tenant)

In June state-financed organization“Alpha” (tenant) entered into an agreement with the regular driver Yu.I. Kolesov rental agreement for a vehicle without a crew.

Rental object - passenger car:

• brand - TOYOTA CAMRY;
• registration plate - T543NE99;
• an identification number(VIN) - JТ4RN56S2F0139247;
• type - sedan;
• category - B;
• year of release - 2012;
• engine - No. 2GRFE 3500CC;
• White color;
• engine power (kW/hp) - 99/135;
• vehicle passport - series 62AC No. 776059;
• vehicle registration certificate - series 45 EX No. 062540.

The car was rented for official trips by the head of Alpha.
The contract period is from June 1 to December 31, 2017. The cost of the car is 800,000 rubles. The monthly rent for a car is RUB 10,000.

Alpha's accountant made the following entries in the accounting.

Additional expenses

According to the terms of the contract or by force of law, the tenant, in addition to the rent, must pay the costs of maintaining and operating the vehicle. Moreover, this needs to be done only if a bareboat lease agreement has been concluded with the employee.

Such expenses include:

• MTPL insurance;
• spare parts;
• repairs, etc.

This procedure is established by Articles 644-646 of the Civil Code of the Russian Federation.

If you rent a car with a crew, then all maintenance costs are borne by the lessor. In this case, you do not need to pay any expenses other than rent. This procedure is established by civil legislation (Articles 634-636 of the Civil Code of the Russian Federation).

Let's get back to renting a car without a crew. Let's take a closer look at the costs of fuel and lubricants. Indeed, in practice, it is precisely this moment that raises many questions.

Organize settlements with an employee regarding fuel and lubricants for a vehicle rented from him in one of two ways:

The employee buys gasoline himself, and the institution reimburses him for expenses;

The institution pays for the purchase of gasoline itself.

The employee buys gasoline himself.

In this case, the institution reimburses the employee’s expenses for gasoline based on supporting documents. This condition is usually specified in the lease agreement or formalized in a separate agreement. What does this look like in practice?

During the month (or other billing period), the employee himself purchases fuel and lubricants. And upon completion, he submits documents to the accounting department that confirm both the fact of purchase and the fact of expenditure.

In order to confirm expenses for the purchase of gasoline, the employee presents cash receipts, and issues waybills for its consumption. For more information on the procedure for writing off gasoline using waybills, see here.

It should be noted that reimbursement of expenses for fuel and lubricants in this case is not a purchase under Laws No. 44-FZ and No. 223-FZ. Because the tenant does not actually buy fuel, but only compensates for the landlord’s expenses.

Gasoline is purchased by the institution.

If the institution itself provides gasoline for the rented car, then the employee does not need to reimburse expenses. Gasoline will be purchased by the institution itself:

Through an accountable person for cash;

According to the agreement (contract).

To confirm fuel consumption, the employee issues waybills. For more information on how to write off gasoline using waybills, see here.

The purchase of gasoline by the tenant in this case will be considered a purchase. For information on how to do it, see:

How to purchase goods (works, services);

How to purchase goods (works, services) for autonomous institutions.

Expertise of the article: Sergey Rodyushkin, Legal Consulting Service, professional accountant-expert

All expenses taken into account when calculating the income tax base must be economically justified and documented.

Maintenance costs for passenger vehicles are no exception. But in a situation where the car is used not only for business, but also for personal purposes, difficulties may arise with tax accounting expenses for fuel and lubricants. One of the authors of the magazine “Actual Accounting” recommended how a company can insure itself against claims from inspectors.

Waybill: choose a convenient option

Expenses for the purchase of fuel are not written off immediately in tax accounting.
Based on the explanations of the tax authorities (letter of the Federal Tax Service of Russia for the city of June 30, 2010 No. 16-15/068679@), the cost of gasoline purchased, for example, using fuel cards cannot be included in expenses either at the time of payment (i.e. on the date of purchase of the card ), nor at the time of actual refueling of gasoline and debiting from fuel card its cost. This is due to the fact that filling gasoline into a fuel tank based on a gas station terminal receipt only confirms the fact of its purchase, but does not prove its intended use.

The main document confirming the consumption of fuel and lubricants, according to officials, is one that is intended to record and control the operation of the vehicle and the driver (clause 14, article 2, article 6 Federal Law dated 08.11.2007 No. 259-FZ; letter dated August 25, 2009 No. 03-03-06/2/161). Transportation of passengers and luggage, cargo, in particular, by passenger cars without issuing a waybill is prohibited.

The waybill must contain the following mandatory details (clause 3 of Mandatory details and filling procedure waybills, approved by order of the Ministry of Transport of Russia dated September 18, 2008 No. 152):

1) name and number;
2) information about the validity period;
3) information about the owner (holder) of the vehicle;
4) information about the vehicle;
5) information about the driver.

When preparing waybills, keep in mind that the unified forms (clause 2 of the post of the Goskomstat of Russia dated November 28, 1997 No. 78; letter of the Ministry of Finance of Russia dated September 20, 2005 No. 03-03-04/1/214) of this document are approved by the Goskomstat of Russia , are required to be used only by motor transport organizations.

All other companies can choose which form of waybill to use: unified or developed independently. When choosing the latter option, please note that such a waybill form must be approved as an attachment to the accounting record and contain all the required details (listed above).

Please note: list mandatory details does not require entering the route of the vehicle. That is, the company may not include this information in its own waybill form, which is especially important if the car is used not only for business, but also for personal purposes.

The same conclusions are confirmed by arbitrage practice.

For example, of interest is one of the decisions of the Federal Antimonopoly Service of the North-Western District, which was made in favor of the company (decision of the Federal Antimonopoly Service of the North-West District dated November 23, 2009 in case No. A56-4991/2009).

From the document:

<...>The information contained in the waybills (vehicle mileage, fuel consumption, remaining fuel and lubricants in the car tank upon departure and return) allows you to determine the expenses incurred, and in conjunction with other primary documents, issued by the Company in accordance with the requirements of Law No. 129-FZ, confirm their economic justification.<...>

The tax authority pointed out that the company’s monthly travel sheets and reports on fuel consumption do not contain information about the route of official passenger cars, the daily number of flights, numbers driver's licenses. The date, time of departure and return to the garage of cars, speedometer readings, remaining fuel in the tank at the beginning and end of each day and its daily consumption are also not indicated.

But the company presented the following documents to justify its costs: instructions for the use of official passenger cars, orders approved by orders on the procedure for using official vehicles, statements of issuing fuel coupons, registers accounting coupons, waybills.

The judges concluded that when deciding on documentary evidence of expenses, any evidence, even indirect evidence, is accepted to determine the basis.

Another positive for companies judgment was adopted by the Federal Antimonopoly Service of the Moscow District (registered by the Federal Antimonopoly Service of the Moscow Region dated July 20, 2010 No. KA-A40/7436-10).

From the document:
Resolution of the Federal Antimonopoly Service of the Moscow District dated July 20, 2010 No. KA-A40/7436-10

<...>the courts proceeded from the fact that the tax authority did not provide evidence that these expenses were unreasonable, and the absence of data on the route of the car in the waybills cannot be a basis for refusing to confirm the expenses incurred.

In addition, form No. 3 “Way list for a passenger car”, approved by Resolution of the State Statistics Committee of Russia dated November 28, 1997 No. 78<...>is mandatory only for motor transport organizations.<...>

Tax officials tried to prove that if the waybills do not indicate the route of the car, then such a document cannot confirm the costs of purchasing fuel and lubricants.

Justifying the expenses incurred, the company presented primary documents for receiving fuel from suppliers, their reports on the volumes of car refuelings, fuel consumption rates approved by the order. In addition, waybills indicating all the required details, confirming the daily mileage of the car, with information on receipt and consumption fuel, monthly fuel write-off statements, properly executed.

The court's conclusions were as follows: the tax authority did not prove that the expenses for fuel and lubricants are unreasonable, and the absence of data on the route of the car in the waybills cannot be a basis for refusing to confirm the expenses incurred.

As we see, organizations have every right include the cost of gasoline as part of tax expenses on the basis of documents confirming the fact of purchase of gasoline and an independently developed form of a waybill, which does not include the route. In this case, the waybill can be issued for any period - from one day to one month (clause 10 of the Mandatory details and the procedure for filling out waybills, approved by order of the Ministry of Transport of Russia dated September 18, 2008 No. 152).

And if any other documents do not indicate the non-productive nature of the trips (for example, from job description driver or written instructions from the director), then the company has the right to fully take into account the cost of gasoline (including that spent on trips for personal purposes) as an expense when calculating income tax.

Disadvantages of a unified waybill

If the company uses a unified form of waybill, then it is necessary to fill out the column “Place of departure and destination” and all other details of this form, because deleting individual details from the unified forms is not allowed (Procedure for using unified forms of primary accounting documentation, approved fast. Goskomstat of Russia dated March 24, 1999 No. 20).

<...>In the unified forms of primary accounting documentation (except for forms for recording cash transactions), approved by the State Statistics Committee of Russia, the organization, if necessary, can enter additional details. At the same time, all details of the unified forms of primary accounting documentation approved by the State Statistics Committee of Russia remain unchanged (including code, form number, document name). Removing individual details from unified forms is not allowed.<...>

Therefore, you should carefully check that “suspicious” addresses are not indicated as places of departure and destination, which could serve as a signal to tax authorities that the trip is not related to the performance of the director’s duties.

If the route information is not specified or the destinations indicate a non-productive nature of the trip, the company will not be able to include these gasoline costs as expenses for profit purposes.

In addition, in such a situation, the employee receives income in in kind in the form of the cost of fuel, from which the organization, being a tax agent, must calculate, withhold and transfer to personal income tax budget, as well as pay the mandatory insurance premiums(Articles 211, 226 of the Tax Code of the Russian Federation; Part 1, Article 7, Part 6, Article 8 of the Federal Law of July 24, 2009 No. 212-FZ).

VAT accepted for deduction from the cost of non-produced gasoline may also be considered unjustified by the tax authority (clause 1 of Article 171, clause 2 of Article 172 of the Tax Code of the Russian Federation).

Fuel write-off is strictly according to the norm

You should also remember that gasoline costs are regulated. And although the Tax Code does not provide for restrictions on accounting for expenses on fuel and lubricants when calculating income tax, consumption rates are contained in the Methodological Recommendations “Standards for the consumption of fuel and lubricants in road transport” (appendix to the order of the Ministry of Transport of Russia dated March 14, 2008 No. AM-23 -R).

These fuel consumption standards are required to be applied not only by motor transport enterprises, but also by all companies that operate cars. They are also intended for tax purposes.

Therefore, in order to avoid this, the amount of fuel actually consumed by the company must be compared with the standards contained in the Methodological Recommendations (letter of the Ministry of Finance of Russia dated September 3, 2010 No. 03-03-06/2/57).

From the document:

Letter of the Ministry of Finance of Russia dated September 3, 2010 No. 03-03-06/2/57
<...>when determining the validity of the costs incurred for the purchase of fuel for a company car, the taxpayer takes into account Guidelines“Standards for the consumption of fuels and lubricants in road transport,” put into effect by Order No. AM-23-r dated March 14, 2008.<...>

In relation to vehicles for which fuel and lubricant consumption standards are not approved, the company should be guided by the appropriate technical documentation or information provided by the car manufacturer (letter of the Ministry of Finance of Russia dated January 14, 2009 No. 03-03-06/1/6).

Tax accounting of the cost of fuel and lubricants based on gas station receipts

In accordance with paragraphs. 5 p. 1 art. 254 Tax Code of the Russian Federation to material costs include the taxpayer’s expenses for the purchase of fuel, water, energy of all types spent for technological purposes, production (including by the taxpayer himself for production needs) of all types of energy, heating of buildings, as well as expenses for production and (or) acquisition of power, transformation and energy transfer.
According to paragraphs. 11 clause 1 art. 264 of the Tax Code of the Russian Federation, other expenses associated with production and sales are, in particular, the taxpayer’s expenses for the maintenance of official transport (road, rail, air and other types of transport).
Based on paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, for profit tax purposes, the taxpayer reduces the income received by the amount of expenses incurred (except for the expenses specified in Article 270 of the Tax Code of the Russian Federation).
Expenses are recognized as justified and documented expenses (and in cases provided for in Article 265 of the Tax Code of the Russian Federation, losses) incurred (incurred) by the taxpayer.
Justified expenses are economically justified expenses, the assessment of which is expressed in in cash. Documented confirmed expenses expenses are recognized that are confirmed by documents that are drawn up in accordance with the law Russian Federation, or documents drawn up in accordance with business customs applied in the foreign state in whose territory the corresponding expenses were incurred, and (or) documents indirectly confirming the expenses incurred (including customs declaration, business trip order, travel documents, report on work performed in accordance with the contract).
Any expenses are recognized as expenses, provided that they are incurred to carry out activities aimed at generating income.
In order to recognize for tax purposes expenses on fuels and lubricants for a car driven and used by the director, in addition to confirming these expenses with primary documents that indicate the fact of purchasing fuel and lubricants (for example, gas station receipts), it is necessary to document the economic justification and production orientation of these expenses .
On January 1, 2013, the Federal Law of December 6, 2011 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402-FZ) came into force, according to which the forms of primary accounting documents contained in albums of unified forms of primary accounting documentation are not mandatory for use (Article 9 of Law No. 402-FZ). At the same time, the primary accounting document must contain the mandatory details listed in Part 2 of Art. 9 of Law No. 402-FZ.
At the same time, as explained in the information of the Ministry of Finance of Russia N PZ-10/2012 “On the entry into force on January 1, 2013 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting” (hereinafter referred to as Information N PZ -10/2012), forms of documents used as primary accounting documents established by authorized bodies in accordance with and on the basis of other federal laws continue to be mandatory for use.
Accordingly, the form of waybill independently developed by the organization must contain the mandatory details as provided for in Part 2 of Art. 9 of Law N 402-FZ, and those specified in Section II “Mandatory details of the waybill” of Order of the Ministry of Transport of Russia dated September 18, 2008 N 152 “On approval of the mandatory details and procedure for filling out waybills” (hereinafter referred to as Order N 152), since This order was issued in pursuance of the requirements of the Federal Law of November 8, 2007 N 259-FZ “Charter of Road Transport and Urban Ground Electric Transport” (Article 6).
Organizations also have the right to use a unified form of waybill for a passenger car (Form No. 3), approved by Decree of the State Statistics Committee of Russia dated November 28, 1997 No. 78, if necessary, adding or removing some of the details.
We remind you that based on the requirements of Part 4 of Art. 9 of Law N 402-FZ, all forms of primary accounting documents used by the organization, including those developed on the basis of unified forms, must be approved by the head of the organization either by a separate administrative document or as part of accounting policy for accounting purposes.
According to clause 10 section III“Procedure for filling out a waybill” of Order No. 152 of the Ministry of Transport of Russia, a waybill is issued for one day or a period not exceeding one month. Accordingly, organizations have the right to provide any period for issuing waybills, but not more than one month.
It should be noted that the mentioned order of the Ministry of Transport of Russia does not indicate the route as a mandatory detail of the waybill. At the same time, according to the explanations of the official bodies, information about the route of the car makes it possible to confirm the fact of the use of the car in the activities of the taxpayer and, accordingly, serves as evidence of the economic justification of expenses for fuel and lubricants and their connection with activities aimed at generating income based on the requirements of Art. 252 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 02/20/06 N 03-03-04/1/129, Federal Tax Service of Russia for Moscow dated 7/07/08 N 20-12/064123.2, dated 04/13/07 N 20-12/035154, dated 11/14/06 N 20-12/100253, dated 06/19/06 N 20-12/54213@).
IN judicial acts, in which the position was supported tax authorities on the issue of the correct filling out of waybills, it is clarified that a waybill that does not contain in its details information about the specific route of the vehicle indicating the name of the organization and address cannot confirm the expenses incurred by the taxpayer for the purchase of fuel and lubricants for official purposes and indicate the validity of these expenses.
These conclusions are given in the resolutions:
— FAS Povolzhsky District dated May 21, 2013 N A55-23291/2012 (Decision of the Supreme Arbitration Court of the Russian Federation dated August 30, 2013 N VAS-11880/13 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation);
- FAS Povolzhsky District dated June 20, 2013 N A55-26509/2012 (Decision of the Supreme Arbitration Court of the Russian Federation dated October 7, 13 No. VAS-13642/13 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation), dated October 21, 2009 - N°А33-13602/08 and dated 08/06/08 N А78-3068/07-Ф02-3517/08;
- FAS East Siberian District dated July 16, 2010 N A33-10451/2009 (Determination of the Supreme Arbitration Court of the Russian Federation dated October 11, 2010 N VAS-13567/10 refused to transfer this case to the Presidium of the Supreme Arbitration Court of the Russian Federation), dated October 21, 2009 . N A33-13602/08.
At the same time, there are examples of judicial acts confirming that the lack of information about the route of a vehicle cannot serve as a basis for non-recognition of expenses for fuel and lubricants. According to the conclusions of the courts, the absence of information about the routes in the waybills does not give grounds to believe that the organization actually used the car for purposes other than official purposes, since such information is not mentioned among the mandatory details of the waybill in the order of the Ministry of Transport of Russia N 152 (resolution of the FAS of the Volga region dated 5.03. 13 N A55-19369/2012, FAS North Caucasus District dated 05/14/12 N A25-1314/2011, dated 08/31/11 N A53-26379/2010, FAS Moscow District dated 02/29/12 N A40-63465/11-116-182, dated 08/26/10 N KA-A41/9668-10, dated 07/20/10 N KA-A40/7436-10, dated 01/26/10 N KA-A40/15099-09, dated 12/8/09 N KA- A40/13500-09, Federal Antimonopoly Service of the North-Western District dated November 23, 2009 N A56-4991/2009, etc.).
The presence of a fairly extensive arbitration practice indicates that the absence of indication in the waybill of the route of a company car, including the name of the organization and address, may entail the emergence of tax risks in relation to expenses for fuel and lubricants.
Thus, it seems appropriate to include in the details of the waybill form, including those to be filled out by the manager, in addition to the address of the destination, the name of the organization (institution) where the official vehicle was sent.
Regarding the issue of recognition for tax purposes of expenses for the director’s purchase of fuel and lubricants based on gas station receipts issued on weekends, in our opinion, what matters is not the fact of purchasing fuel and lubricants on weekends, but the time (period) of using these fuels and lubricants. For example, fuels and lubricants were purchased on Sunday evening for their further use from the beginning of the work week during the working hours of the manager established by the employment contract, which will be confirmed by waybills, which are drawn up taking into account the above requirements.
The resolution of the Federal Antimonopoly Service of the Moscow District dated February 3, 2009 N KA-A40/96-09 considered a similar situation.
Having established that the cars driven by some drivers, according to the waybills, left the garage no earlier than 9.00 and returned no later than 18.00, whereas according to cash receipts in a number of cases, gasoline was purchased at gas stations either before 9.00 or after 18.00, tax office considered that the named persons received income to be taken into account when personal income tax calculation. However, the organization explained that based on the orders cars were transferred to persons admitted to management for safekeeping at their place of residence due to the lack of parking at the enterprise. These orders stipulate that these employees are reimbursed for expenses based on advance reports related to the purchase of fuel and lubricants during non-working hours. It was established that the purchase of fuel and lubricants outside working hours is justified by the goal of unhindered travel to the line the next day.
Because service motor vehicle after returning from the line (work) or before going to the line (work), including refueling with fuel and lubricants, is an objectively necessary action to ensure the continuity of the production process, the court indicated that the fact of driving the vehicle from the location of the plant to the residence of the driver who accepted the vehicle for safekeeping, does not indicate the use of the specified product and purchased on issued on account cash Fuel and lubricants for personal use.
In the resolution of the Federal Antimonopoly Service of the Moscow District dated February 4, 2008 N KA-A40/13427-07-2, in which the court also supported the taxpayer, it was noted that the amount and relationship of expenses for fuel and lubricants, including those purchased on weekends, with production activities companies are confirmed by cash receipts, advance reports drivers, an order on shift work for drivers.
At the same time, we draw attention to the resolution of the Federal Antimonopoly Service of the Moscow District dated December 3, 2012 N A41-20691/11. According to the taxpayer, taking into account the traveling nature of the work of the director and his deputy, the costs of paying for gasoline, auto parts and car washing, as well as travel expenses are included in the cost of maintaining official transport. It does not matter that the expenses are incurred on weekends and holidays, since this does not prove the fact that the car is used for non-production purposes.
As the court indicated, recognizing the taxpayer’s position as unlawful, accountable persons The taxpayer paid for car washing services in cash and purchased fuel and lubricants. Since the inspection established that the expenses were not incurred in the region of the company’s activities on days when employees were not sent on business trips (including on weekends and holidays), and the documents submitted do not allow the vehicles to be identified, these expenses do not meet the requirements of Art. 252 of the Tax Code of the Russian Federation, as not confirming their production focus.
In addition, the court agreed with the inspection’s qualification of the disputed amounts as material benefit, received by the director of the company and his deputy in the form of reimbursement of expenses for fuels and lubricants and car wash services and subject to personal income tax.
Therefore, if fuels and lubricants are used by the director for business trips on weekends, which must be confirmed by properly completed travel sheets, the following must also be taken into account.
The director, on the one hand, is the leader - the sole executive body of the organization, which decides all economic, managerial and financial questions, and on the other hand, he is an employee of the organization who works under an employment contract and complies with labor regulations. Relations between the company (employer) and the director as an employee are regulated by the norms of labor law in their entirety (Articles 16, 20, 56, 273 of the Labor Code of the Russian Federation, Article 40 of the Federal Law of February 8, 1998 N 14-FZ “On Limited Companies liability”, hereinafter referred to as the Law on Limited Liability Companies).
The employer in relation to the manager is the general meeting of participants of the LLC or the sole participant (clause 4, clause 2, article 33 of the Law on Limited Liability Companies).
Provisions of Art. 100 of the Labor Code of the Russian Federation provide for the possibility of using various working hours, including work with irregular working hours for individual categories workers.
According to Art. 101 of the Labor Code of the Russian Federation, irregular working hours are a special mode of work, according to which, by order of the employer, if necessary, individual employees may be occasionally involved in the performance of their duties. labor functions outside the working hours established for them.
Thus, for an employee working on a five-day workweek schedule, the condition of irregular working hours means only an occasional increase in the duration of his working hours and cannot serve as a basis for his involvement in work on weekends.
A similar conclusion follows from the letter of Rostrud dated June 7, 2008 N 1316-6-1: the introduction of irregular working hours for employees does not mean that they are not subject to the rules defining the start and end times of work, the procedure for recording working hours, etc. . These workers are generally exempt from work on weekly rest days and holidays.
Involvement of employees who have an irregular working day to work on their days off must be carried out using the provisions of Art. 113 and 153 of the Labor Code of the Russian Federation.
It should be remembered that work under conditions of irregular working hours (Article 101 of the Labor Code of the Russian Federation), on weekends and holidays (Articles 113 and 153 of the Labor Code of the Russian Federation), overtime work (Articles 99, 152 of the Labor Code of the Russian Federation) are independent labor regimes in conditions deviating from normal (Article 149 of the Labor Code of the Russian Federation, letter of Rostrud dated December 2, 2009 N 3567-6-1). Therefore, if a company car driven by a director will be used for production purposes on weekends, the established procedure for attracting the manager to work on weekends and remunerating him must be followed (Articles 113 and 153 of the Labor Code of the Russian Federation).
Failure to comply with the requirements of the mentioned norms of the Labor Code of the Russian Federation is a violation of labor legislation, for which the organization can be brought to administrative responsibility in accordance with Art. 5.27 Code of Administrative Offenses of the Russian Federation.
In addition, compliance with the specified requirements of labor legislation in relation to the manager, along with the proper completion of travel sheets, will make it possible to recognize expenses for fuels and lubricants purchased and used on weekends for business trips as justified for tax purposes.
Thus, the Federal Tax Service of Russia for the city of Moscow in a letter dated June 19, 2006 N 20-12/54213@ reported that in order to recognize expenses for the purchase of fuel and lubricants during the period of operation of motor transport in excess of the normal working day (working hours) for profit tax purposes, it is necessary the presence of internal regulations approved by the head of the organization, providing for work on weekends and ensuring accurate accounting of overtime work performed by car drivers.
For example, in the resolution dated February 4, 2008 N KA-A40/13427-07-2, the FAS Moscow District indicated that the cost of fuel purchased on weekends also meets the cost criteria established by clause 1 of Art. 252 of the Tax Code of the Russian Federation, since the organization presented orders from the manager on shift work of drivers.
However, taking into account the fact that the manager is an employee with a special status, his involvement in work on weekends, in our opinion, should be provided for by the decision of the company's participants, or the latter on the basis of the protocol general meeting participants are given the right to the manager to independently decide on working on weekends and/or include a corresponding provision in the employment contract concluded with the director.

Accounting for travel costs on a toll road

The Federal Tax Service of Russia for Moscow, in a letter dated June 7, 2012 N 13-11/050285, clarified questions about whether the taxpayer has the right to take into account expenses for travel on a toll road and how to confirm the validity of such expenses.
Article 264 of the Tax Code of the Russian Federation establishes that taxpayers have the right to take into account as part of other expenses, including the costs of maintaining official vehicles (clause 11, clause 1, Article 264 of the Tax Code of the Russian Federation), as well as consular and airfield fees for the right of entry and passage , transit of automobile and other transport, for the use of sea canals, other similar structures and other similar payments and fees (clause 12, clause 1, article 264 of the Tax Code of the Russian Federation).
Clause 2 of section 1 and clause 3 of section 2 of the Temporary rules for determining the cost of travel on toll highways and road facilities and the use of funds collected for travel (approved by Decree of the Government of the Russian Federation of August 27, 1999 N 973) (hereinafter referred to as the Temporary Rules) it is established that travel on federal highways common use and bridges, overpasses, and tunnels located on them can only be tolled if there is a free alternative passage in the same direction.
If the organization can document the fact of expenses incurred for travel on a toll road, as well as economic feasibility use of toll roads if there is a free alternative travel in the same direction, then these expenses can be taken into account as part of other expenses for the purpose of calculating corporate income tax.
Accordingly, in order to avoid claims from tax authorities regarding the unreasonableness of expenses for travel on toll roads, it is advisable to argue for the need to use toll highways. In particular, you can specify the following:
— the free road is much longer, so traveling on a toll road allows you to reduce the cost of fuel and lubricants;
— increasing the comfort of vehicle traffic and reducing damage from road accidents.
Travel coupons provided for in clause 13 of the Rules for the provision of travel services can be used as documents confirming payment for travel.
Explanations from the Ministry of Finance of Russia and judicial practice on the issue of the validity of including the costs of paying for travel on a toll road as expenses for the purpose of calculating income tax when employees travel to work and back are not available in information and reference systems.
A similar tax dispute regarding the validity of expenses for travel on toll highways (in other countries) was considered in the resolution of the Federal Antimonopoly Service of the North-Western District dated March 24, 2009 N A21-1241/2008. The court supported the taxpayer, indicating that the costs of delivering the leased asset along toll roads in the territory foreign country the taxpayer has the right to include it as part of other expenses, provided they are documented (receipts for road payments, checks for the purchase of fuel and lubricants).
- safer travel (clause 3 of the Temporary Rules), since the condition of the free road is poor. The owner of the toll road is obliged, in particular, to ensure unimpeded passage of vehicles on the toll road, eliminating the formation of traffic jams (provided that users comply with the prescribed speed limit and ensure their safety traffic), as well as compliance of the transport and operational characteristics of the toll road with regulatory requirements (clause 19 of the Rules for the provision of services for organizing the passage of vehicles on public toll roads of federal significance, toll sections of such roads, approved by Decree of the Government of the Russian Federation of January 19, 2010 N 18 (hereinafter referred to as the Rules for the provision of travel services);
— savings in operating costs ( transport costs) when driving on toll roads by reducing fuel consumption, tire wear, and repair costs;
Thus, taking into account the special status of the director as an employee of the company, if his rights are not limited by the charter, employment contract or decisions of the general meeting of the company’s participants, he has the right to independently decide on paying for travel on a toll road when traveling to work and home.
At the same time, in order to eliminate tax risks, it is advisable, in our opinion, to draw up a local regulatory act (an administrative document signed by the director) justifying the operational need for travel on a toll road, using, among other things, the above arguments.