Agreement on gratuitous transfer of property between legal entities

Accounting and tax accounting

Free assistance from the founder. Postings

Accounting depends on what is being transferred, whether there are associated expenses, and what tax regime the company has. When a gratuitous transfer of property occurs between legal entities, transactions from the parent organization are collected in debit 91 of the “Other income and expenses” account.

The receiving institution credits 82, 83, or 91 accounts. Experts have different points of view on the use of these accounts. In practice, 83 or 91 counts are more often used.

Free assistance from the founder - the postings for the subsidiary company will be as follows:

Debit	Credit	Contents of operation
51	91	The financial assistance of the founder is taken into account. Funds have been deposited into the current account
10		Reflected materials received from the founder
41		Goods transferred by the founder to the subsidiary company are reflected

The founder has the opposite information on how to transfer materials to another organization free of charge:

Debit	Credit	Contents of operation
91-2	10	The write-off of materials transferred under a gift agreement in favor of a subsidiary is reflected

Income tax

In tax accounting, the parent company has neither income nor expense. Hence, companies applying PBU 18/02 have a permanent tax difference. It is drawn up in an accounting certificate and reflected by posting Dt 99 subaccount “Permanent tax liability” Kt 68 subaccount “Calculations for income tax”.

Accrued VAT is not included in expenses (Clause 16, Article 270 of the Tax Code of the Russian Federation).

For the organization receiving the property, if the founding company has a share of more than 50%, income tax does not arise (clause 11, clause 1, article 251 of the Tax Code of the Russian Federation). When applying PBU 18/02, a permanent tax asset arises.

VAT

In general, the gratuitous transfer of property rights is recognized as a sale (clause 1 of Article 39 of the Tax Code of the Russian Federation, subclause 1 of clause 1 of Article 146 of the Tax Code of the Russian Federation, for exceptions see clause 2 of Article 146 and Article 149 of the Tax Code of the Russian Federation). The company must calculate and pay VAT, issue an invoice and include it in the sales book.

VAT is not charged if:

funds are transferred (clause 1, clause 3, article 39 of the Tax Code of the Russian Federation);
The host organization is non-profit.

There are other cases (Article 146 of the Tax Code of the Russian Federation).

simplified tax system

The parent organization does not generate income (Articles 346.15, 249, 250 of the Tax Code of the Russian Federation). If the company takes into account expenses, then, according to Art. 346.16 of the Tax Code of the Russian Federation, the residual value of property and related expenses are not taken into account.

If a company uses the simplified tax system to give up property before the normative deadline (paragraph 14, paragraph 3, article 346.16), then expenses must be restored. The gratuitous transfer of property under the simplified tax system requires the restoration of expenses only in relation to fixed assets. According to paragraph 3 of Art. 346.16 of the Tax Code of the Russian Federation, when transferring a fixed asset before the expiration of three years from the date of recognition of the costs of its acquisition (before the expiration of 10 years, if the useful life of the fixed asset exceeds 15 years), the donor must recalculate the tax base for the entire period of use of the specified fixed asset.

To recalculate the tax base, expenses for the acquisition of fixed assets should be excluded from expenses. It is allowed to take into account the amounts of depreciation accrued in relation to this fixed asset in accordance with the provisions of Chapter. 25 Tax Code of the Russian Federation. This position is given in letters of the Ministry of Finance of Russia dated 04/11/2016 No. 03-03-06/3/20413, dated 04/14/2014 No. 03-11-06/2/16837.

The receiving party will not have any income if the parent company owns more than 50% of the authorized capital (Article 346.15 of the Tax Code of the Russian Federation, paragraph 11, paragraph 1, Article 251 of the Tax Code of the Russian Federation). Otherwise, other income will arise.

UTII

If an organization operates only on UTII, the receipt for free will have to be carried out under the general or simplified regime.

Legal documents

Art. 575 Civil Code of the Russian Federation
Art. 50 Civil Code of the Russian Federation
Art. 574 Civil Code of the Russian Federation
Art. 251 Tax Code of the Russian Federation
Art. 572 Civil Code of the Russian Federation
PBU 18/02
Art. 270 Tax Code of the Russian Federation
Art. 251 Tax Code of the Russian Federation
Art. 39 Tax Code of the Russian Federation
Art. 146 Tax Code of the Russian Federation
Art. 149 Tax Code of the Russian Federation
Art. 346.15
249
250 Tax Code of the Russian Federation
Art. 346.16 Tax Code of the Russian Federation
Art. 346.15 Tax Code of the Russian Federation
Art. 251 Tax Code of the Russian Federation

Comments on the document “Agreement on the transfer of equipment for free use”

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Eugene

Status: Client

08/14/2013 at 15:13:43

Fine

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Anna

06/27/2014 at 11:00:01

I would also like to get applications

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Elena

01/25/2016 at 11:25:46

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05/16/2018 at 14:36:14

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10/12/2018 at 06:06:54

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06/19/2019 at 15:30:17

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07.11.2019 at 13:25:00

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11/13/2019 at 08:25:06

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08/12/2020 at 14:23:36

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12/07/2020 at 13:04:04

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12/11/2020 at 08:27:29

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12/30/2020 at 09:35:27

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Legal regulation of free use of property

An agreement of gratuitous use (loan agreement) is an agreement between the parties, by virtue of which one party (the lender) undertakes to transfer or transfers an item for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same item in the condition in which it received it. , taking into account normal wear and tear or in the condition stipulated by the contract (Article 689 of the Civil Code of the Russian Federation).

Thus, the object of gratuitous use can only be material objects that do not lose their natural properties during their use (non-consumable things) and can be individually determined. The individual certainty of these items is due to the fact that the borrower, at the end of the period of use, must return to the lender exactly the thing that he received from him and in the condition in which it was provided to him (taking into account normal wear and tear or wear and tear determined by the agreement between the parties) . This is the main difference between a gratuitous use agreement and a loan agreement, by virtue of which the borrower must return to the lender a certain number of things of the same kind and quality (similar things) or the same amount of money that he previously received.

Property transferred under a contract for gratuitous use must be clearly established. If the terms of the agreement do not contain data about the property that allows it to be clearly identified, then even the agreement signed by the parties is not considered concluded. To identify the property being transferred, the contract must necessarily indicate the name of the property, a description of its quality and other characteristics that make it possible to accurately determine the relevant object and its condition.

Property transferred for free use may include:

real estate, including buildings, structures, office premises;

motor vehicles;

electronic and computer technology;

office furniture and other interior items;

other non-consumable and individually defined property.

It should be noted that the transfer of property for free use should be distinguished from the gratuitous transfer of property, during which the ownership of it passes to the party to whom this property is transferred. The right of ownership to property transferred for free use remains with its former owner. The contract we are considering is characterized by gratuitousness. This is its main difference from a lease agreement (property lease), according to which a thing is provided for temporary use and possession for a fee.

The parties to this contractual legal relationship can be legal entities and individuals, including those registered as entrepreneurs without forming a legal entity. The right to transfer a thing for free use belongs to its owner or a person authorized by him to perform the specified actions (Part 1 of Article 690 of the Civil Code of the Russian Federation). In particular, the lender may be the lessee of the property, who has the right, with the consent of the lessor, to provide the property for free use to third parties. The owner’s permission in this case is recorded in the lease agreement (Part 2 of Article 615 of the Civil Code of the Russian Federation). The law establishes a restriction, which is expressed in the fact that a commercial organization (open or closed joint-stock company, limited liability company) does not have the right to act as a lender in relation to persons who are its founder (participant), director or member of its management and control body . Agreements for gratuitous use, in which one of the parties is a legal entity, must be drawn up in writing (Part 2 of Article 690 of the Civil Code of the Russian Federation).

The lender is obliged to provide the thing (Article 691 of the Civil Code of the Russian Federation):

in a condition that corresponds to the contract and its purpose;

with all its accessories and related documents (for example, instructions for its use, technical data sheet), unless otherwise provided by the contract.

This party to the contract is also obliged to warn the borrower when concluding the contract about all the rights of third parties to the transferred item (for example, if this item is pledged) (Article 694 of the Civil Code of the Russian Federation).

According to Article 695 of the Civil Code of the Russian Federation, the borrower is obliged to:

maintain this property in good condition, including carrying out routine and major repairs;

bear all expenses for its maintenance.

However, by agreement of the parties, these responsibilities can be redistributed between them. For example , an agreement may establish the obligation of the lender to carry out all types of repairs to the property.

As a general rule, the risk of accidental loss or accidental damage to property, including that transferred for free use, is borne by its owner. But in cases established by law, the burden of these risks falls on the borrower.

In accordance with Article 696 of the Civil Code of the Russian Federation, this occurs if the property is lost or damaged due to the fact that the borrower:

used it not in accordance with the terms of the contract or its purpose;

transferred it to a third party without the consent of the lender;

taking into account the actual circumstances, he could have prevented undesirable consequences for the specified property by sacrificing his property, but chose to keep his property.

The gratuitous use agreement may specify the period during which it is valid.

If the period of gratuitous use is not specified in the contract, then the contract is considered concluded for an indefinite period. In this case, each of the parties has the right to cancel the agreement at any time, warning the other party one month in advance, and in the case of gratuitous use of real estate - three months in advance. The agreement may establish a different period for termination of a gratuitous use agreement concluded for an indefinite period.

The condition on the validity period of this legal relationship has a significant impact on the procedure for refusal of either party from the contract.

According to Article 699 of the Civil Code of the Russian Federation, the following procedure for refusal is established. Under a gratuitous use agreement concluded without specifying a period, each party has the right to cancel the agreement by notifying the other party one month in advance. Under a gratuitous use agreement concluded with a specified period, only the borrower has the right to withdraw from the agreement. In this case, he is obliged to notify the other party about this one month in advance. Please note that the contract may establish a different period for notifying the counterparty in case of cancellation of the contract.

For non-fulfillment or improper (for example, untimely) fulfillment of obligations stipulated by the contract, economic sanctions in the form of a penalty (fine or penalty) may be applied to the guilty party. Such a sanction is a measure of civil liability and is provided for by the contract.

In addition to gratuitousness, the differences between a gratuitous use agreement and a lease agreement are as follows:

the amount of liability of the lender (failure to provide the item for defects in the item transferred for free use). Under this agreement, only actual damage is subject to compensation, while under a lease agreement, actual damage and lost profits are subject to compensation;

the scope of the borrower's rights. If the thing is not provided for free use, the borrower does not have the right to claim it from the lender, while if the thing is not provided for rent, the lessee has such a right;

the scope of the borrower's obligations regarding the maintenance of the thing. As a general rule, the borrower bears the costs of carrying out major repairs of the property used free of charge. Under the lease agreement, this responsibility is assigned to the lessor.

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Personal income tax

Since tax authorities believe that the gratuitous transfer of property to employees for temporary use is the provision of a service, they demand that personal income tax be withheld from the employee. They proceed from the following.

When determining the tax base for personal income tax, all income of an individual received by him both in cash and in kind is taken into account (clause 1 of Article 210 of the Tax Code of the Russian Federation). Moreover, on the basis of clause 2 of Article 211 of the Tax Code of the Russian Federation, income received in kind also includes services provided in his interests free of charge. And since the transfer of property for temporary use is a service, then it falls under the scope of this article of the Tax Code of the Russian Federation.

Example 1 . In May 2004, Ilovlinskaya Secondary School No. 2 gave an MTZ-80 tractor for free temporary use to its employee for a period of one week. The fixed asset was returned the same month. The tractor was purchased by the school using funds it received from doing business.

During a tax audit of the school’s economic activities, inspectors considered this operation to be a gratuitous provision of a service and established that the educational institution had arrears of VAT and that personal income tax was not withheld from the employee.

The inspection staff found that ZAO Svetly Put, located in the same village as the school, rents out tractors of the same brand and year of manufacture at the rate of 150 rubles. per day, including VAT.

Thus, the tax authorities assessed additional VAT:

150 rub/day x 7 days : 118% x 18% = 160.17 rubles;

and personal income tax:

150 rub/day x 7 days x 13% = 136.5 rub.

The fiscal authorities were unable to assess additional income tax. Since the tractor was handed over for free use in May, the school should have stopped accruing depreciation on it for tax purposes from June 1. However, the tractor was returned in May. Thus, the school can also resume depreciation on June 1. Since the moments of termination of depreciation accrual and its resumption occurred in the same month, there are no legal grounds for terminating the first of these procedures.

If the tractor were handed over at the end of May and returned at the beginning of June, then the school would have to stop accruing depreciation on the tractor on June 1 and resume only on July 1. Thus, a whole month would be lost.