Tax gopher. Features of the simplified tax system when working under contracts with Apple, Google and others

In this article, I will try to conduct a brief legal literacy campaign for developers on some provisions of the Civil Code that are relevant in the context of the activities of individual entrepreneurs and organizations that use the simplified taxation system, in contracts with Apple, Google and other companies, and also pay attention to some not always obvious tax nuances, which, as shown by personal experience of studying this topic, quite often elude the attention of developers or cause a lot of questions and questions oops.

Read this article carefully if you apply the simplified taxation system with the “income” tax object at a rate of 6 percent and sell games or applications on Google Play, the Apple App Store, and other digital content — for example, 3D models — on Steam, Unity Asset Store or on other sites, in terms of contracts with which there are commissions, agency fees and other forms of revenue sharing between the parties.

From the material you will learn:
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• Why is it desirable for a developer to have at least basic legal literacy?
• What from the point of view of the Civil Code are games and applications, and what rights do developers have in addition to copyright to them
• What is an agency agreement and why all this is important when working under an agreement with Apple or Google
• Who is a tax gopher and why he can turn into a fur animal
• What kind of “catch” exists for applying “simplified” in terms of determining the tax base
• Why value added tax (VAT) continues to haunt us, even when we are not its payers
• How, from the point of view of the Federal Tax Service, in-game purchases are subject to VAT (InApp Purchases)

Preface. What and how are developers at risk

I will start the article, no matter how I would like to go straight to the point, from a distance, but not too far. At the initial stage of development, many developers prefer to work as individuals and receive “author's remuneration” for their work, pay 13 percent of the personal income tax in the spring of the year following the reporting year, and feel relatively dry and comfortable. This approach, however, has its own nuances, risks and pitfalls, but more importantly, its discussion is not the topic of this article.

In this material I would like to focus on those who decided to go to the next level in their activities, faced the need to register themselves or their company as a business entity, and successfully completed these actions. In the overwhelming majority of cases, developers moving from working as an individual to a new stage become individual entrepreneurs or create a limited liability company. It is quite expected that simultaneously with such registration, developers will have the responsibility and obligations defined by law to the state, including tax compliance. And here quite predictable difficulties usually begin.

There is a very common and in many respects fair opinion that law and law are very confused and in many respects inaccessible to a layman. Moreover, there are quite a few developers who hold such an opinion, who continue to work as an individual entrepreneur or a limited liability company more “on a whim,” rather than with an understanding of the legal basis of their, essentially, business. Some of the developers in an attempt to come to some kind of confidence in relations with regulatory bodies from time to time or on a permanent outsource condition attract various consultants or accounting firms to design and conduct their activities - after all, in general, this is quite profitable and convenient. Nevertheless, the lack of legal literacy among the developers themselves, it seems to me, carries an abundance of various risks, among which I would like to emphasize the following:

• Without possessing at least basic knowledge of the legal basis of their activities, the developers are forced to rely almost entirely on the competence of the lawyers, accountants and tax experts they use to service this activity.
• The lack of necessary knowledge creates an objective inability to control the quality of legal, accounting and consulting services provided, which exposes the developer to a significant risk of committing various violations in the relevant areas.

Among other things, among the negative consequences can be identified the risks of inadvertently committing tax violations , the danger of which is exacerbated due to their accumulated nature. If for some reason taxes were initially calculated and paid incorrectly, the amount of potential non-payment is constantly increasing, and with it the degree of responsibility (fines, penalties, and so on) grows. A bad scenario implies the identification of such irregularities during a field tax audit, which can be carried out quite a long time after the developer begins its activity as an individual entrepreneur or a limited liability company, for example, in 5-7 years. Accordingly, violations accumulated over all these years can “surface” at the same time and by the amount prove to be significant or very significant, depending on the financial success of the developer during this period of time. The penalties that follow the inspection may become proportional to the size of the supervisory authority in the event of violations (in this case, the Federal Tax Service).

Of course, law and law are indeed very confused, especially considering the quality of legislation, but the situation in which people continue to conduct their activities without at least a basic understanding of these processes cannot but cause alarm. Developers, in my opinion, people are far from stupid and are more than capable, with their own will and little help from the side, to increase their legal literacy to a level sufficient to begin a meaningful understanding of the laws and codes, which, in fact, basically regulate their activities of the state. That, in turn, is a significant step towards a stable and secure existence of a business over a long period of time.

Unfortunately, it is necessary to recognize that an ordinary developer is practically deprived of sufficiently accessible ways to obtain adequate information about the various legal and tax nuances of his business. State bodies with which he can interact through written and electronic appeals often do not have the competence to conduct legal expertise and delve into all the subtleties of the questions asked by them regarding the basis of work, for example, with Apple or Google, and therefore rarely give answers to the merits and often limited to quoting relevant legislation and codes. The lack of competence, by the way, means that these bodies do not have such a function assigned to them by law, that is, formally, in principle, they should not and are not obliged to carry out legal examinations and give official interpretations to business contracts.

One of the relatively realistic ways to get an answer from, for example, the tax service, which has at least some practical value, is to send a correctly formulated question, which, again, is most often impossible due to lack of legal literacy, and moreover, in many cases even this cannot resolve the ambiguity of the interpretation of legislation. If you ask the tax authorities "How to work properly under an agreement with Apple?", In response, in most cases, you can get the already mentioned quoting of legislation and tax code. Which, again, does not have any particular practical benefit, since without an answer in essence, the developer is again alone with his questions, at the same point in which he was before the referral. Thus, for the most part, it is only through mutual assistance from the developer community that it is possible to shed light on such a complicated, but extremely important topic such as the ability to read and understand laws, and most importantly, apply them for the purposes of conducting their activities correctly in terms of legislation and paying taxes.

For urgent need, I devoted the last week to a thorough study of some parts of the Civil and Tax Codes, as well as reading forums, feature articles and opinions of various legal specialists, in order to create a relatively complete picture of what we, the developers, are doing from the point of view of legislation and tax authority serving as our main supervisory authority and counterpart. The result was the identification of some tax nuances directly related to developers implementing their applications and games under contracts with Apple and Google, as well as the understanding that the information gathered properly arranged and presented to all interested readers would be the best way to make a modest contribution to the dissemination. It seemed to me very useful knowledge that can be useful to most of us.

Before turning to the content of the article, I would like to make a few explanations so that readers can correctly evaluate the following. Of course, it would be great if this article was prepared and published by a professional lawyer specializing in the field of IT, but so far there is no such person, as far as I know. Personally, I, unfortunately, do not have the qualifications of a lawyer, accountant, economist or tax service employee, so do not take all the provisions and theses of this article as an indisputable truth in the last resort. If someone is still interested, then in my professional activity my interests lie in the field of game development and 3D graphics, and besides this I am an individual entrepreneur with an employee who uses a simplified taxation system, therefore my interest in the topic indicated in the title is including a purely practical interest.

The article in my vision is more food for thought, a collection of useful information, an incentive to increase legal literacy and an invitation to discuss controversial issues. If you have additional questions or comments on individual statements, ask them in the comments or dispute my interpretation there. In the discussion, as you know, truth can be born. In other words, if this article gives rise to additional discussions, new opinions and comments of experts in the field of law, accounting or taxation, I will only be glad, because a good comment can be essentially more valuable than all the material as a whole (although I tried to This situation did not arise, ho-ho!).

The content of the article was decided to present in two stages - by presenting some theoretical background at the first stage and practical analysis at the second. In the theoretical part, I will share the experience of studying the Civil and Tax Codes, and also pay attention to the basic concepts, knowledge of which is necessary for understanding the legal basis of our activities. In the practical part, we will look at two tax “tricks” arising from those applying the simplified taxation system, and also consistently follow the logic of applying the Tax Code to interpreting our activities from the point of view of legislation in order to substantiate these very tax nuances and get answers to some questions.

Stocking tea, cookies, patience and begin.

Civil Code, Property Rights and Agency Agreement

So, as already mentioned, the theoretical part will be mainly devoted to the Civil Code and some of its provisions that are directly related to the developers and what they essentially do when they sell their games and applications under contracts with Apple or Google. To begin with, I consider it necessary to put forward certain theses and substantiate them from the point of view of the Civil Code. If it would be interesting to someone to get a more complete picture of the following, I recommend that you study Chapter 69 of the Civil Code or even the VII section as a whole, since I will try not to dwell too much on citing the provisions of the code, highlighting only the essential points.

Thesis: from the point of view of the Civil Code, applications and games are computer programs for which the developer-creator has exclusive property rights to the result of intellectual activity (such objects are sometimes called intellectual property). To justify this thesis, we use the corresponding articles of the Civil Code.


By the way, in addition to exclusive property rights, authors also have personal non-property rights, such as, for example, the right of authorship and the right to a name, which you cannot refuse or transfer to someone else in principle - such rights are inalienable and non-transferable.

Thus, based on the foregoing, in the sale of applications and games under contracts with Apple or Google in the relevant shopping venues, in fact, non-exclusive rights to the result of intellectual activity are transferred through a licensing agreement between the seller (developer) and the buyer. In my opinion, knowledge of what, from the point of view of legislation, applications and games are, is simply necessary because the Tax Code uses the terms “goods, services, property rights, intellectual property rights”. A developer who, for the second time in his life, has discovered the code, it may be completely incomprehensible whether the programs are goods, or services, or both. Accordingly, he cannot correctly apply the provisions of the articles of the Tax Code, in which often goods, services and property rights are regulated differently. Now, knowing that applications and games belong to the object of civil law “property rights to the results of intellectual activity,” when reading the laws, it will be possible to clearly understand what is relevant to us and what is not.

The articles of the Civil Code cited above mention the license contract several times. The license agreement as a means of disposing of property rights to the result of intellectual activity is mainly governed by the provisions of Articles 1235-1240 of the Civil Code. I will quote them under the spoiler, but within the framework of this material they are not strictly required for reading, although I would still recommend to get acquainted with their provisions at your leisure. Those who have decided not to do this yet can safely move on.

Contract type classification

No less important topic that needs consideration and clarification is the topic of classification of the type of contracts with Apple and Google from the point of view of the Civil Code. This is a question of fundamental importance, since the ownership of a particular contract to a specific type of civil law contract entails certain tax and other consequences, which will be discussed more specifically a little later.

Now consider this question on the example of the agreement on the sale of games and applications in the App Store with Apple. The contract concluded with Apple and its Luxembourg subsidiary iTunes SARL is mixed and contains elements of the agency agreement and commission agreement. . , , Schedule 2 - . Schedule 2, 2014 , . , , , , - - - — , Google Play . Steam ( , , ), , , Unity Asset Store . , Google Adsense. .

is a fairly common type of contract, and countless articles have been written on the subject of discussing the most varied nuances of such contracts, legal opinions have been expressed, hundreds of explanations have been given and judicial practice has been gained, therefore there is no need for any in-depth research under the agency contract as such . We confine ourselves to general theses, references to the Civil Code, and some comments.

Thus, an agency agreement is an agreement whereby one party (agent) undertakes to perform, on remuneration, on behalf of the other party (principal) legal and other actions on its own behalf, but at the expense of the principal or on behalf of and at the expense of the principal. This type of contract is governed by the norms of Chapter 52 of the Civil Code of the Russian Federation, the main provisions of which include the following:


As can be seen from Article 1011 of the Civil Code, in addition to the provisions of Chapter 52 governing agency contracts, the provisions of Chapter 49 ( commission agreement ) and Chapter 51 ( commission agreement). The reason for this is that the agency agreement is in its essence a mixed type of contract, providing for the commission of legal actions on behalf of the Principal and at the expense of the Principal (signs of an order agreement) and legal actions on behalf of the Agent and at the expense of the Principal (signs of an agreement ). The classification, as can be seen from the description, depends on whose name the agent acts under the terms of the contract. In addition, under the agency contract, the Agent also performs actual actions - for example, concluding transactions with end customers, delivering applications, hosting and so on, for which the Agent receives a reward and which suggests that there are signs of compensated services provided by the Agent - Principal.

Separately, I would like to emphasize an extremely important circumstance, which is key to understanding the further discussion of the tax consequences of such contracts and characterizing equally the agency contracts, commission contracts and commission contracts - all transactions under these contracts are made at the expense of the Principal, the Principal or the Principal , respectively. This means that any property rights, including rights to the results of intellectual activity transferred to the Agent (attorney, commissioner) in order to fulfill the subject of the contract, remain the property of the Principal (the principal, the principal), and , , (, ) , . , .

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, .Over time, the amount of unpaid tax in the conduct of activities inevitably increases, and with it the amount of penalties that will be applied to an individual entrepreneur or organization after the violation is detected. What is perhaps the worst of all - errors of this kind do not lie on the surface and in most cases are revealed only during the on-site tax audit , , -. , «», , , , . , , . , , , - , , .

Thus, there is every chance for quite a long time successfully and without apparent difficulties to work with Apple or Google, to receive income and not to know grief, however, during an on-site tax audit, the inspector will be able to open a copy of our contract, read it, pay attention to the availability of conditions in the contract Apple’s commissions for their services in the amount of 30% of the proceeds, classify it almost unmistakably as an agency agreement and with a smile, clarify whether we paid, in accordance with the tax code, tax on the entire amount received by our agent (Apple) from the implementation of our property rights to the result of intellectual activity. The answer “no” to such a question will be quite expensive - both in the form of the tax amount assessed according to the results of the audit, and in the form of fines and penalties for late tax payments.Specific amounts of fines and penalties are in the Administrative Code and the Tax Code. In the worst case, if we’ve been working very successfully all these years (every cloud has a silver lining), there can be a question of tax evasion on a large or very large scale, with responsibility up to criminal responsibility. Although, of course, this is an extremely unlikely scenario, as to accumulate such sums on underpaid taxes, the turnover should go to tens and hundreds of millions of rubles over several years, not counting other qualification criteria under the Articles of Criminal Code (intentional commission and other signs).Although, of course, this is an extremely unlikely scenario, as to accumulate such sums on underpaid taxes, the turnover should go to tens and hundreds of millions of rubles over several years, not counting other qualification criteria under the Articles of Criminal Code (intentional commission and other signs).Although, of course, this is an extremely unlikely scenario, as to accumulate such sums on underpaid taxes, the turnover should go to tens and hundreds of millions of rubles over several years, not counting other qualification criteria under the Articles of Criminal Code (intentional commission and other signs).

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Naturally, the signs of the agency contract are not limited to this quoting, and the essence of such a relationship stems from the entire complex of the agreement with Apple. I also remind you that, according to the Civil Code, transactions within agency contracts are made at the expense of the Principals, and the proceeds from the sale of funds initially become their property in full .

Referring to the Tax Code to determine what is subject to taxation when applying the simplified taxation system.


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It is worth noting that very many people are confused by the very wording of the object of taxation “income”, because in our ordinary, civilian understanding, income is just what we got and left for ourselves. However, in terms of legislation, this is not the case. It would be more correct if the object of taxation was originally called “ revenue ”, and not income, and such a term still appears in the Tax Code, but some time later. We will be consistent in our presentation and go further, drawing attention to the established procedure for determining income under the simplified tax system. This procedure is established by Article 346.15 of the Tax Code. Also pay attention to sub-clause 1.1 of clause 1 of this, which establishes that when determining income, some types of income are not taken into account.


Thus, in the incomes under the simplified taxation system “incomes” at a rate of 6 percent, income from sales, defined by article 249 of the Tax Code , and non-operating income are taken into account, but the income specified in article 251 is not taken into account. By the way, a rather subtle point is non-sale income. in particular, the interest of the bank under the bank account agreement for the use of funds placed on the account , 6 250 . , , — , , .

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As can be seen from Article 249, revenue from the sale is recognized revenue from the sale of property rights . From the first part of this article and the Civil Code, we remember that the rights to the result of intellectual activity, which is also a computer program (game or application), are property rights. Thus, for tax purposes with a simplified taxation system, income from the sale of property rights is equal to the proceeds from the sale of property rights . , , , . , , , /, , / .

251 , , , , , /. , , , does not exempt the Principal from including Agent remuneration in the tax base . The only sub-clause that mentions relations within the framework of agency contracts is sub-clause 9 of clause 1, but it is used by Agents and Commissioners, not Principals and Committees, that is, it has no relation to us.

Let us sum up the sad result: the sale of paid games and applications on the App Store or Google Play is essentially a paid transfer of property rights to the result of intellectual activity , and the revenue under these contracts is the full amount paid by the final buyers for the game or application and, in turn, it is also "income" «» 6 . , ( Apple Google, , ) , , , // «» 6 , , // , . 06.06.2014 № 03-11-11/27455in which the agency also refers to the norms of Article 251 of the Tax Code, which does not provide for a reduction in the "income" of principals by the amount of remuneration paid to them by agents. In this regard, the principal applying the simplified taxation system with the object “income” must recognize as income the entire amount of the proceeds that goes to the agent’s account.

For purposes of this brief illustration, consider the simplest example. If Apple sold 10 copies of the game for $ 10, then the revenue was $ 100, Apple’s commission would be, say, $ 30, and the developer’s share would be $ 70. The tax must be calculated and paid from one hundred dollars, even if they have never been on the developer’s account, since his property rights arose at $ 100, and then offsetting mutual claims in payment of Agent’s services (Apple) occurred. By the way, if you take into account Apple's commission of 30% of revenue, as well as the fact that you need to pay 6% of the tax in the USN with the entire amount, and not just with your share, then the "effective" tax rate is compared to the "old" will be 8.57% .

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In this part of the article we will discuss the imposition of a value-added tax (VAT) on remuneration for the services of a foreign organization that is a foreign person who is not registered with the tax authorities of the Russian Federation as a taxpayer. Apple and Google, as you know, are foreign organizations, and developers contract with their foreign representative offices - iTunes SARL, for example, acting as a party to a contract with Apple, is not a resident of the United States, but of Luxembourg. Therefore, according to the Tax Code, in certain situations their services rendered in Russia may be subject to VAT. Let's try to understand this issue, having examined more closely the relevant provisions of the Tax Code.

The first question that will probably arise in connection with the designated topic is that individual entrepreneurs and organizations that apply the simplified taxation system are not VAT payers. This is true and not true at the same time. For clarification on this subject, we turn to the same Tax Code.


Indeed, in accordance with the provisions of this clause of Article 346.11, individual entrepreneurs and organizations applying the simplified taxation system are not VAT payers. However, in paragraph 5 of the same article there is an important provision that clarifies this provision:


Thus, if in certain situations the legislation assigns the entrepreneur or the organization the functions of a tax agent, he may become a VAT payer “for another”, when the “other” cannot pay this tax himself, regardless of whether the entrepreneur or the organization is VAT payer for its activities or not. We conclude: applying a simplified taxation system are not VAT payers "for themselves", but may be tax agents for VAT .

For further consideration, we take Apple and the contract with it as a model. It should be emphasized once again that what is stated in this article, as I believe at the moment, is equally applicable to contracts with Google, Steam and similar companies operating under similar conditions.

We know that Apple Inc. is a foreign person who is not registered as a taxpayer in the tax authorities of the Russian Federation. Here it is worth making two reservations - firstly, it is more correct to speak about the existence of a contract with the Luxembourg company iTunes SARL, the daughter of Apple, from which we receive money, not Apple, Inc., and secondly - there is still a company in Russia "Apple Rus", which, as far as I know, is engaged only in the sale of Apple technology and, most likely, the relationship to iTunes SARL and Apple, Inc. for tax purposes in the context of the mentioned VAT for the services of its parent company does not matter. I doubt very much that Apple has gone on to pay VAT on Russian developers through Apple Rus, especially in light of the factthat last year the form of the contract was changed so that any possible additional taxes are passed on to the developers.

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Consequently, the services listed in subparagraphs 1-4.1 and 4.4 of paragraph 1 are considered to be rendered in Russia, if the buyer of the works (services) is an individual entrepreneur or organization registered in the Russian Federation, and all other services not mentioned in it are considered to be provided in Russia, only if a performer of works or services is registered in Russia .

But this is not the end - there is hope! In all the same article 148 there are points 3 and 4, which potentially still exempt us from paying VAT on the amount of Apple's remuneration. Their provisions are as follows:


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Documents confirming the place of provision of services (in this case, apparently, it is appropriate to speak about the whereabouts of the agent providing these services), in accordance with paragraph 4 of Article 148, contracts with a foreign person (apparently, the contract is meant), where that services are performed on Apple servers and from which it is clear that Apple itself is a foreign company, as well as other documents confirming the fact of rendering services (most likely, reports from Apple and acts drawn up by individual applications are under this item employers or organizations). I admit, at first I was inclined to believe that VAT would still have to be paid, but now the interpretation of the main and auxiliary services looks very plausible to me and at the moment I think that there is no need to pay VAT on the cost of Apple services.If someone has sensible comments on this subject or - I will be glad to see them in the comments.

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At the end of the article I want to talk a bit about Free-To-Play games, free applications, InApp-purchases, advertising display through services like AdMob and other alternative ways of monetization, but without lengthy calculations on the articles of the Tax Code - in the format of reasoning and giving food for thought . In addition, almost all the necessary articles have already been mentioned in the text above, so if you wish, anyone will be able to return to them and try to trace how these purchases and services look like from the NK point of view (a hint is advertising). We will talk about the taxation of these types of income value added tax (VAT), or rather, what opinions on this matter exist at the organizations and the tax service.

Those who follow the news may have noticed that in the past year and a half at least twice there were reports that the gaming unit of Mail.Ru Group is suing the Federal Tax Service about returning the previously paid VAT on in-game purchases in the amount of at least 184 million rubles. Mail.Ru Group, obviously, does not apply the simplified taxation system, so we will keep in mind that the matter directly concerns only the general taxation system (DOS). At the same time, the very fact of the interpretation and determination of the essence of InApp purchases by the Tax Service is important, therefore, the mentioned proceedings are relevant and may be relevant for those applying SST.

The Mail.Ru case deals mainly with the legality of applying the tax benefit provided for in subparagraph 26 of paragraph 2 of Article 149, which exempts certain operations from VAT. This sub-item and the essence of the benefit, expressed in it:


Mail.Ru Games considered that the additional functionality acquired by users in the form of in-game purchases is an extension of their rights to use the results of intellectual activity, that is, in fact, an extension of the license and “getting access to certain parts of the program code for a fee”. Therefore, such purchases would not be subject to VAT. However, the Federal Tax Service is of a different opinion: the department considered that this is not a “license extension”, but a completely independent additional service, or, to be more precise, “application management service”. Since services rendered on the territory of Russia (we recall Article 148 of the Tax Code), with some exceptions, are subject to VAT, the claim for the return of VAT paid was denied in the court of first instance,as well as in the arbitration court at the retrial. If these decisions are not canceled, Mail.Ru Games will probably not only have to leave the VAT already paid on the tax service accounts, but also pay it later on from all in-game purchases made in their games and applications. The bill will go to billions of rubles. I think that the position of the supervisory authority on this issue is expressed very clearly, so draw the appropriate conclusions if this issue affects your activities.therefore, draw appropriate conclusions if this question affects your activities.therefore, draw appropriate conclusions if this question affects your activities.

Now what concerns advertising in free applications. The procedure for calculating the tax under the simplified taxation system, apparently, as in the contract with Apple, may depend on what type of contract the agreement with the intermediary who provides us with banners or other materials of advertisers will be assigned to. If such a contract is recognized as an agent, then the tax base for the USN 6% will be the entire amount of the proceeds received by the agent. At the same time, in the comments to this article, we managed to find out that the contract, for example, with AdMob as an option of the Adsense program, is not , . , . , «» , , «» , , .

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And the last.Residents of Belarus will probably find it helpful to know that practically the same principles set forth in this article also apply to their activities. However, there are some differences - for example, in Belarus there are no privileges exempting from paying income tax of foreign organizations that do not operate in the territory of the Republic of Belarus through a permanent representative office. And the tax rate, by the way, is as much as 15 percent. To be exempted from this tax, you must provide the tax office with a certificate confirming the foreign location of the organization with which the contract was concluded. Moreover, an agreement on the avoidance of double taxation should be concluded with this country (by the way, there is no such agreement with Luxembourg). At the moment, I sent an appeal to the Ministry of Taxes and Duties to clarify some details and requirements for such a certificate.If there are interested habrovchan from Belarus, I think in two or three weeks it will be possible to issue a new article and consider in it the features of the legislation of the Republic of Belarus in the same context as the material of this article.

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That's all.I hope that the article was useful to you and you learned a lot of new and interesting. I also want to congratulate everyone who read it completely and came to this point - you showed incredible resilience! Let me remind you that all controversial points can be discussed in the comments, and there it would be great to see the opinions of professional lawyers or tax experts, if any, look at this page. I wish you good luck in business and let the gophers get around us all!

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