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По мнению Департамента бюджетной политики в сфере контрактной системы Минфина России, ставка НДС не является существенным условием госконтракта и может быть изменена путем заключения дополнительного соглашения без изменения цены контракта (письмо Минфина России от 8 ноября 2018 г. № 24-03-07/80187 «О рассмотрении обращения»).
Такое разъяснение обусловлено поправкой, внесенной в Налоговый кодекс Федеральным законом от 3 августа 2018 г. № 303-ФЗ «О внесении изменений в отдельные законодательные акты Российской Федерации о налогах и сборах» (далее – Закон № 303-ФЗ). В частности, предусмотрено увеличение с 1 января 2019 года размера ставки НДС с 18% до 20%.
Ранее Минфин России уже затрагивал вопрос изменения цены контрактов в рамках Федерального закона от 5 апреля 2013 г. № 44-ФЗ «О контрактной системе в сфере закупок товаров, работ, услуг для обеспечения государственных и муниципальных нужд» (далее – Закон № 44-ФЗ) в связи с повышением ставки НДС. В информационном письме Минфина России от 28 августа 2018 г. № 24-03-07/61247 отмечалось, что цены контрактов, заключенных до повышения ставки НДС, не подлежат изменению в связи с таким увеличением.
Является ли сумма НДС частью цены договора, подлежащей оплате покупателем, узнайте из материала «Переход на применение ставки НДС 20% с 2019 года» в «Энциклопедии решений. Налоги и взносы» интернет-версии системы ГАРАНТ. Получите полный доступ на 3 дня бесплатно!
Теперь же в дополнение к указанной позиции подчеркивается, что ставка НДС в размере 20% будет применяться в отношении товаров (работ, услуг), имущественных прав, отгруженных (выполненных, оказанных), переданных начиная с 1 января 2019 года (п. 4 ст. 5 Закона № 303-ФЗ). При этом исключений для товаров (работ, услуг), поставляемых (выполняемых, оказываемых) в рамках договоров по Закону № 44-ФЗ до указанной даты, не предусмотрено.
Кроме того, с учетом нормы ст. 432 Гражданского кодекса размер процентной ставки НДС признакам существенности не соответствует – он не является условием договора, относительно которого между сторонами должно быть достигнуто соглашение, а также условием существенным или необходимым для договора поставки товара, выполнения работ, оказания услуг (в т.ч. приобретения недвижимого имущества или аренды имущества).
Не исключено, что неопределенность в вопросе изменения цены госконтракта в связи с повышением ставки НДС в скором времени будет решена на законодательном уровне – Минфин России уже прорабатывает поправки в части установления права заказчика по соглашению сторон изменять цену контрактов, подлежащих исполнению после 1 января 2019 года, с учетом изменения ставки НДС.
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цены госконтракта в связи с повышением ставки НДС | pravozak.ru
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