It is not possible to revise the price of a contract concluded in accordance with Law No. 223-FZ in connection with a change in the amount of the counterparty's tax obligations
In accordance with Federal Law No. 223-FZ of July 18, 2011 "On Procurement of Goods, Works, and services by Certain Types of Legal Entities", the customer and the company entered into a contract for the performance of construction works. Referring to the fact that, as a result of the performance of the contract, the institution must pay in excess of the price specified in the contract, specified without VAT, the amount of costs for the payment of VAT by the company to its suppliers when purchasing goods and services necessary for the performance of work, the company sent the relevant claim to the institution. The institution left this claim without satisfaction, which served as the basis for the company's appeal to the arbitration court with a corresponding application (Review of the judicial Practice of the Supreme Court of the Russian Federation No. 1 (2021)).
The decision of the court of first instance, left unchanged by the decisions of the courts of appeal and cassation, satisfied the stated requirements. At the same time, the judicial board of the Supreme Court of the Russian Federation overturned the decisions of the lower courts and dismissed the claim.
In particular, justifying its position, the Court pointed out that the burden of properly accounting for VAT amounts in determining the final amount of the price specified in the contract lies only with the seller as a taxpayer. Therefore, the possibility of increasing the transaction price and additional collection of VAT amounts from the buyer in the event of incorrect tax accounting by the seller when forming the final amount of the contract price is allowed only in cases where such a possibility is agreed by both parties to the contract, or provided for by regulatory legal acts. The court noted that the price of the contract is fixed, the contract does not contain provisions on the possibility of its increase due to changes in the tax obligations of the contractor. There is no law that establishes the obligation to review the contract price in this situation. Consequently, the conclusion of the lower courts on the admissibility of the revision of the contract price in connection with the fact of a possible change in the amount of the tax obligations of the contractor cannot be recognized as legitimate.
In addition, for a contractor applying a simplified tax system, the amount of" incoming " VAT is part of its costs for the purchase of relevant goods (works, services).
Thus, the Supreme Court of the Russian Federation concluded that the company's claims were not subject to satisfaction.