Tax accounting of property transferred for free use

Documenting

Document the fact of receipt (return) of property with a document in any form, since there is no unified form for this. The main thing is that it contains all the mandatory details listed in Part 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ. For example, when receiving property, draw up an act of acceptance and transfer of property for free use. This procedure follows from Part 1 of Article 9 of the Law of December 6, 2011 No. 402-FZ.

For the received fixed asset, you can open a separate inventory card of form No. OS-6, approved by Decree of the State Statistics Committee of Russia dated January 21, 2003 No. 7. In this case, to account for the received property, you can use the inventory numbers assigned to it by the lender himself. This is stated in paragraph 14 of the Methodological Instructions, approved by order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n. (Despite the fact that this rule applies when receiving property for rent, it can (but not necessarily) be used to organize accounting when receiving property on loan, since these transactions are largely similar.)

Property received for free use should be reflected on the balance sheet. The Chart of Accounts does not provide for a special account to reflect property received free of charge. Therefore, the organization has the right:

• or independently open a new off-balance sheet account, securing it in the working Chart of Accounts. For example, this could be account 012 “Property received for free use”;

• or use an off-balance sheet account to account for leased fixed assets - 001 “Leased fixed assets”, since the lease agreement and the agreement for gratuitous use are in many ways similar.

Procedure for transfer of property

Even if the transaction does not involve any particular difficulties in regulating relations with the borrower, it is recommended to draw up an agreement. in which to record agreements that relate to the transfer of property. The conclusion of an agreement will protect you from omissions and claims, knowingly defining the legal framework for the relationship.

For a document to be valid, it is necessary to ensure that all essential points are specified in its paragraphs. Otherwise, the interested party will be able to invalidate it.

The signing of a gratuitous transfer agreement is accompanied by actual actions upon the fact, with the event reflected in the acceptance certificate, indicating the start date of use and a description of the condition of the object (defects, identified features).

How to draw up an agreement for the gratuitous transfer of property for use

An agreement for the transfer of property for temporary use has much in common with the clauses of a lease agreement, with the exception of the main thing - the borrower does not pay any remuneration for the acquired right. This means that the owner has no right to expect payment, provision of services, or provision of other valuables in return for what was transferred. Entrepreneurs who find it beneficial to secure a free right to use real estate or other objects are of particular interest in such registration options.

Download: Agreement for free use of property (sample) (21.9 KiB, 932 hits)

Sample agreement for the gratuitous transfer of real estate (29.4 KiB, 594 hits)

Sample donation agreement (16.3 KiB, 230 hits)

Standard form and example of a contract for the gratuitous transfer of property (50.0 KiB, 711 hits)

You should not ignore the recommendations of the law to record oral agreements in writing in order to avoid unpleasant consequences with unscrupulous borrowers or claims from government agencies.

The bilateral document must include the following items:

1. An exact description of the subject of the transaction: address, cadastral number, technical characteristics, features of the object.
2. It is not necessary to reflect the rights and obligations in the document, however, these clauses will ensure the protection of the interests of the borrower and the lender to an equal extent. For example, the owner of an object undertakes to give it for use for a certain period of time, and the borrower must take care of the safety and payment of maintenance bills.
3. Indication of the parties to the transaction, which will help identify the participants if any claims or questions arise.

The parties may voluntarily include other additional terms based on individual circumstances, excluding the right to any form of remuneration.

Additional documents

Together with the bilateral agreement, the parties sign an acceptance certificate reflecting the fulfillment of agreements and recording the condition of the object at the time of acceptance for use. The more detailed the situation is described, the higher the chances of a successful resolution of issues if one of the parties to the transaction has them.

Unlike lease and other paid forms of transfer of property, drawing up a receipt from the lender is not provided, since payment is not allowed.

Grounds for termination

If any of the parties decides to terminate the contract before its expiration, it is necessary to be guided by Article 698 of the Civil Code of the Russian Federation.

The grounds for unilateral early termination of use may be:

• An action or inaction of the borrower that led to a deterioration in the condition of the property.
• Refusal to pay current expenses associated with the use of property.
• Violation of the intended purpose of the object, when the borrower decided to use the property in a manner inconsistent with the current restrictions.
• The emergence of third parties claiming to use the object transferred to the borrower.

The law does not prohibit parties to a transaction from terminating agreements by mutual agreement. But sometimes the initiative comes solely from the borrower. This happens if:

• during use, defects were discovered that make the property unsuitable for meeting the specific needs of the borrower, and there is evidence that the lender was silent about the existence of problems;
• force majeure circumstances have arisen due to which the borrower is not to blame for the impossibility of using the property in his own interests;
• persons appeared claiming to own property previously transferred free of charge by the lender.

The basis for considering the contract terminated at the initiative of the borrower may be the owner’s dishonest attitude towards the obligations of providing documentation for the facility, including the acceptance certificate.

Accounting: receiving property

When receiving the property, make the following entries:

Debit 001 (012) – property received under a loan agreement.

Reflect the return of property as follows:

Loan 001 (012) – property was returned to the lender.

This procedure follows from paragraph 21 of the Methodological Instructions, approved by order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n, Instructions for the chart of accounts, paragraph 4 of PBU 1/2008 and is confirmed by letter of the Ministry of Finance of the Russian Federation dated March 23, 2001 No. 04-02-05 /3/11.

The value of the property received for free use should be indicated in the valuation recorded in the contract. This is stated in the Instructions for the chart of accounts. (Despite the fact that this rule applies when receiving property for rent, it can (but not necessarily) be used to organize accounting when receiving property on loan, since these transactions are largely similar.)

The borrower does not charge depreciation on property received for free use. If necessary, this continues to be done by the owner of the assets - the lender. This follows from paragraph 49 of the Methodological Instructions, approved by Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n.

Accounting: property maintenance costs

The responsibility for maintaining the property in good condition (including carrying out current and major repairs) rests with the borrower, unless otherwise provided by the agreement for gratuitous use (Article 695 of the Civil Code of the Russian Federation). Costs for maintaining property in good condition are expenses for ordinary activities. In accounting, reflect such expenses with the following entries:

Debit 20 (23, 25, 26, 29, 44...) Credit 10 (60, 69, 70, 76...) - reflects the costs of maintaining property received for free use in good condition.

This follows from paragraphs 5, 7, 11 and 16 of PBU 10/99 and the Instructions for the chart of accounts.

An example of reflecting in accounting the receipt, maintenance and return of property received for free use

In July, Alpha LLC received premises for free use. According to the loan agreement, the premises are valued at 1,000,000 rubles. The costs of its maintenance are assigned to Alpha.

In the same month, Alpha carried out routine repairs to the premises. Repair costs amounted to RUB 100,000, including:

• services of a third party for repairs – RUB 35,400. (including VAT – 5400 rub.);
• the cost of own materials used in repairs is RUB 51,980.

In September, the contract was terminated at the request of Alpha.

The Alpha accountant uses account 001 “Leased fixed assets” to account for property received free of charge.

The accountant reflected the operations for receiving and carrying out repairs as follows.

In July:

Debit 001 – 1,000,000 rub. – premises were received under a loan agreement;

Debit 26 Credit 60 – 30,000 rub. – reflects the cost of services of a third-party organization performing repairs to the premises;

Debit 26 Credit 10 – 51,980 rub. – materials for repairs of the premises were written off;

Debit 19 Credit 60 – 5400 rub. – reflects input VAT on services provided by a third party.

In September:

Loan 001 – 1,000,000 rub. – the premises received under the loan agreement were returned.

Accounting: inseparable and separable improvements

Inseparable and separable improvements to gratuitously used property should be reflected in accounting and taxation in the same way as improvements to leased property. This is due to the fact that in civil legislation uniform rules apply to them (clause 2 of Article 689 and clauses 1, 3 of Article 623 of the Civil Code of the Russian Federation). Therefore, they should be reflected in accounting uniformly. For example, the cost of improvements that remain the property of the borrower and related to fixed assets is repaid in accounting by calculating depreciation (clause 17 of PBU 6/01).

For more information about this, see How a lessee should account for expenses for inseparable improvements to leased property and How for a lessee to account for expenses for separable improvements to leased property.

BASIC: income tax

Free use of someone else's property is a property right received free of charge, which for the purpose of calculating income tax is recognized as non-operating income of the borrower.

When calculating income tax, this income must be reflected based on market prices for the rental of identical property. This procedure is established by paragraph 8 of Article 250 of the Tax Code of the Russian Federation and is confirmed by letters of the Ministry of Finance of Russia dated May 12, 2012 No. 03-03-06/1/243, dated April 19, 2010 No. 03-03-06/4/43.

Attention: if the tenant does not reflect the debt to the landlord in accounting and does not transfer payments under the lease agreement, inspectors may decide that the property is being used free of charge. Then the inspectors will include the cost of rent in non-operating income on the basis of paragraph 8 of Article 250 of the Tax Code of the Russian Federation.

Judges do not share this approach (see, for example, the resolution of the Federal Antimonopoly Service of the Volga District dated February 15, 2011 No. A55-5367/2010). They indicate that failure to reflect rental payments in accounting is a violation of the rules for accounting for income and expenses, but does not indicate that the tenant has no debt on rental payments. And the fact that the organization did not make lease payments within the period established by the contract does not mean that in the future it is not obliged to fulfill its obligations.

Situation: when calculating income tax, is it necessary to include in income the value of the property right to the gratuitous use of property received from the founder with a participation share of more than 50 percent?

Yes need.

Subject to the restrictions established by subparagraph 11 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, income in the form of property received free of charge from the founder (participant, shareholder) is not subject to income tax. However, the gratuitous use of an asset is a property right (clause 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98), and for tax purposes property rights are not recognized as property (clause 2 of Article 38 of the Tax Code of the Russian Federation). Thus, the right granted by the founder to use his property free of charge for the recipient organization is non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). The Ministry of Finance of Russia adheres to a similar point of view in letters dated February 13, 2009 No. 03-03-06/1/69 and dated March 17, 2008 No. 03-03-06/1/183.

When calculating income tax, this income must be reflected based on market prices determined taking into account the rules of Article 105.3 of the Tax Code of the Russian Federation. Confirm this information with documentation or an independent assessment. This procedure is established by paragraph 8 of Article 250 of the Tax Code of the Russian Federation.

Arbitration practice confirms the legality of this approach (see, for example, the decisions of the Supreme Arbitration Court of the Russian Federation dated April 1, 2009 No. 2944/09, dated September 22, 2008 No. 11458/08, resolutions of the FAS Volga-Vyatka District dated December 4, 2008 No. A82-12138/2007-20, dated July 2, 2008 No. A82-11801/2007-14, North-Western District dated March 7, 2006 No. A56-42032/04, West Siberian District dated January 23, 2006 No. F04-9850/2005(19018-A27-15)).

Using the accrual method, recognize income during the entire period of use of the property at the end of each reporting period (month, quarter) (clause 1 of Article 271 of the Tax Code of the Russian Federation).

Under the cash method, the date of receipt of income in the form of a gratuitously received right to use property is the date of transfer of the property for gratuitous use (for example, the date of drawing up the transfer and acceptance certificate). This follows from paragraph 2 of Article 273 of the Tax Code of the Russian Federation.

For a non-profit organization, the economic benefit from the acquired right of gratuitous use is not subject to income tax if it is transferred state (municipal) property necessary for the implementation of its statutory activities. Such property rights are recognized as targeted revenues, which are not taken into account when calculating income tax. This is stated in subparagraph 16 of paragraph 2 of Article 251 of the Tax Code of the Russian Federation. Similar clarifications are contained in letters of the Ministry of Finance of Russia dated March 26, 2010 No. 03-03-06/4/34 and dated March 19, 2010 No. 03-03-06/4/24.

The borrower does not bear expenses in the form of the value of property received for free use. The ownership of the received property does not pass to him. This follows from paragraph 1 of Article 689 of the Civil Code of the Russian Federation. Therefore, in particular, the borrower has no right to charge depreciation on fixed assets received for free use (clause 3 of Article 256 of the Tax Code of the Russian Federation).

Expenses associated with the receipt, maintenance and use of property can be taken into account when calculating income tax if the obligation to bear them is assigned to the borrower by agreement and (or) law, that is, if they are economically justified (clause 1 of Article 252 of the Tax Code of the Russian Federation). This applies, for example, to the costs of maintaining property in good condition (including current and major repairs) (Article 695 of the Civil Code of the Russian Federation). Similar clarifications are contained in letters of the Ministry of Finance of Russia dated July 24, 2008 No. 03-03-06/2/91 and dated April 4, 2007 No. 03-03-06/4/37. For more information on how to reflect the cost of repairing fixed assets received for free use in tax and accounting, see How to take into account repairs of fixed assets for tax purposes.

Do not take into account the costs associated with the maintenance and use of non-productive property when calculating income tax. This is due to the fact that expenses that reduce the tax base must be incurred to carry out activities aimed at generating income (clause 1 of Article 252 of the Tax Code of the Russian Federation).

Also, don't factor in the costs associated with reimbursing the lender for taxes. This is explained by the fact that income can be reduced only by the amount of taxes that the taxpayer pays for himself (subclause 1, clause 1, article 264 of the Tax Code of the Russian Federation, letters of the Federal Tax Service of Russia for Moscow dated January 9, 2008 No. 18-11/000184 and dated August 20, 2007 No. 20-05/078880.2).

When using the accrual method, take into account the costs associated with the maintenance and use of property received for free use in the period to which they relate (paragraph 1, clause 1, article 272 of the Tax Code of the Russian Federation).

Under the cash method, expenses associated with the maintenance and use of such property are recognized after they have been paid (clause 3 of Article 273 of the Tax Code of the Russian Federation).

Taxation of an agreement for the gratuitous use of property

Question

Good afternoon. Is it possible for an organization that has equipment to transfer this equipment under a free use agreement? What are the consequences of concluding such an agreement instead of a lease agreement?

Answer

Yes, an organization can enter into such an agreement.

When transferring any property (both movable and immovable) for gratuitous use (loan), two documents must be drawn up in two copies (one for the lender, the other for the borrower):

— agreement for gratuitous use (loan) (clause 1 of Article 689 of the Civil Code of the Russian Federation). If real estate is transferred for a loan, the agreement does not need to be registered with Rosreestr;

— act of acceptance and transfer of property.

For income tax purposes and under the simplified tax system, the lender does not have any income or expenses when transferring property on loan (Letter of the Ministry of Finance dated 02/01/2013 N 03-03-06/1/2069).

In case of OSN for property transferred on loan, it is not necessary to restore:

— VAT;

- depreciation bonus.

However, from the month following the month of transfer of fixed assets for loan, depreciation calculations must be stopped for it (clause 3 of Article 256 of the Tax Code of the Russian Federation). Depreciation is not accrued until the month following the month in which the fixed assets are returned to the lender.

On the last day of each quarter during which the property is in gratuitous use, the lender must:

1) charge VAT on the market value of the lease (excluding VAT) of identical property by posting (clause 1 of Article 39, clause 1 of clause 1 of Article 146, clause 2 of Article 154 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance dated July 29, 2011 N 03 -07-11/204) D 91 K 68 - VAT is charged on the market value of the rental of property transferred for free use

2) draw up an invoice in one copy;

3) register the invoice in the sales book.

The amount of accrued VAT cannot be taken into account in tax expenses.

The market rental value of identical property can be confirmed by one of the following documents:

- or a certificate compiled by the organization itself based on available information on rent for similar property (for example, from the media);

— or a report from an independent appraiser.

If the property transferred as a loan is subject to property tax, transport or land tax, then these taxes continue to be assessed and paid by the lender. Amounts of taxes are included in tax expenses in the period of their accrual (Letters of the Ministry of Finance dated December 2, 2015 N 03-05-05-02/70114, dated July 19, 2006 N 03-03-04/1/589).

Applications

• Question ___According to paragraph 1 paragraph 1 article 146 of the Tax Code of the Russian Federation, a taxable object (47 kB)
• Correspondence of accounts How are reflected in the organization's accounting (132 kB)
• Tax guide_ Encyclopedia of disputed situations on ND (30 kB)
• Transaction Guide_ Loan_ Lender (214 kB)
• Article Transfer of property for free use_ Accounting (71 kB)
• Typical situation How to register and account for the transfer of property (55 kB)
• Form Certificate of acceptance and transfer of movable property (attachment (43 kB)
• Form Loan Agreement (Prepared by ConsultantP specialists (76 kB)

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BASIS: VAT

Amounts of input VAT from the cost of third-party services (for example, for transporting property), or from the cost of materials purchased and used in repairing property, are deductible in the general manner (subclause 1, clause 2, article 171, clause 1, art. 172 of the Tax Code of the Russian Federation).

When receiving state (municipal) property for free use, the borrower in some cases must fulfill the duties of a VAT tax agent. For more information about this, see Who is recognized as a tax agent for VAT.

An example of reflection in accounting and taxation of property received for free use. The organization applies a general taxation system

Alpha LLC received premises worth 1,000,000 rubles for free use. The premises are used for business activities. According to an independent appraiser, renting a similar premises costs 10,000 rubles. per month (excluding VAT).

Alpha calculates income tax on an accrual basis on a monthly basis.

The Alpha accountant uses off-balance sheet account 001 “Leased fixed assets” to account for property received free of charge. The accountant reflected the receipt of premises for free use as follows:

Debit 001 – 1,000,000 rub. – premises received under a free use agreement are accepted for accounting.

When calculating income tax, Alpha monthly includes in non-operating income the market value of gratuitous use of property in the amount of 10,000 rubles.

Since this income is not recognized in accounting, the organization’s accountant makes a monthly entry:

Debit 99 subaccount “Continuous tax liabilities” Credit 68 subaccount “Calculations for income tax” - 2000 rubles. (RUB 10,000 × 20%) – reflects the permanent tax liability that arose in connection with the recognition in tax accounting of income that is not taken into account in accounting.

When is the gratuitous transfer of property subject to VAT?

In tax legislation, values ​​or rights transferred to the recipient without issuing counter obligations are considered to be received free of charge (clause 2 of Article 248 of the Tax Code of the Russian Federation). The accrual and payment of a particular tax occurs only if there is a tax base. For the purposes of calculating and paying VAT, the gratuitous transfer of valuables is recognized as a sale (Clause 1, Article 39 of the Tax Code of the Russian Federation). This means that the party must also pay VAT on the value of the valuables transferred free of charge.

VAT is calculated for the gratuitous transfer of valuables at the time the transaction itself is performed (clause 1 of Article 167 of the Tax Code of the Russian Federation). The transfer date is considered to be the date of execution of the primary documents:

• in case of transfer of goods - the date of issue of the invoice;
• if services were provided free of charge (work performed) - the date of drawing up the acceptance certificate.

Read about the details that are a mandatory component of such an act in the material “Accounting - Postings for Services”.

The tax base is determined by the market price of the transferred property on the date of the transaction (clause 3 of Article 105.3 of the Tax Code of the Russian Federation, clause 2 of Article 154 of the Tax Code of the Russian Federation). As for the VAT rate, in case of gratuitous transfer, the rate provided for this type of product (work, service) is applied.

The cost of the property or other benefits transferred free of charge, as well as the amount of VAT calculated for payment to the budget, are reflected in the invoice. This document is registered in the sales book during the period of transfer of valuables (clauses 1, 3 of the rules for maintaining the sales book, approved by Decree of the Government of the Russian Federation dated December 26, 2011 No. 1137).

Read about the features of issuing an invoice for services in the article “Invoice for services - sample filling in 2018 - 2021.”

In the case of accrual and payment of VAT upon gratuitous transfer, input VAT paid to suppliers for the acquisition of gratuitously transferred property can be deducted (subclause 1, clause 2, article 171 of the Tax Code of the Russian Federation).

simplified tax system

Free use of someone else's property is a property right received free of charge, which for the purpose of calculating the single tax under simplification is recognized as the income of the borrower.

Include this income in the tax base based on market prices for the rental of identical property. This procedure follows from paragraph 1 of Article 346.15 and paragraph 8 of Article 250 of the Tax Code of the Russian Federation and is confirmed by letters of the Ministry of Finance of Russia dated August 25, 2014 No. 03-11-11/42295, dated May 12, 2012 No. 03-03-06/1 /243.

Situation: when simplifying, is it necessary to include in income the value of the property right received from the founder with a participation share of more than 50 percent?

Yes need.

Subject to the restrictions established by subclause 11 of clause 1 of Article 251 of the Tax Code of the Russian Federation, income in the form of property received free of charge from the founder (participant, shareholder) is not subject to a single tax (subclause 1 of clause 1.1 of Article 346.15 of the Tax Code of the Russian Federation). However, the gratuitous use of an asset is a property right (clause 2 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98), and for tax purposes property rights are not recognized as property (clause 2 of Article 38 of the Tax Code of the Russian Federation). Thus, the right granted by the founder to use his property free of charge for the recipient organization is non-operating income (clause 1 of Article 346.15 and clause 8 of Article 250 of the Tax Code of the Russian Federation). The Ministry of Finance of Russia adheres to a similar point of view in letters dated October 31, 2008 No. 03-11-04/2/163 and dated July 1, 2008 No. 03-11-04/2/93.

Include this income in the tax base based on market prices determined taking into account the rules of Article 105.3 of the Tax Code of the Russian Federation (excluding VAT). Confirm this information with documentation or an independent assessment. This procedure follows from paragraph 1 of Article 346.15 and paragraph 8 of Article 250 of the Tax Code of the Russian Federation.

Arbitration practice confirms the legality of this approach (see, for example, Resolution of the FAS of the North Caucasus District dated October 22, 2008 No. F08-6323/2008).

Similar conclusions are contained in court decisions adopted in relation to organizations that apply the general tax system (see, for example, the decisions of the Supreme Arbitration Court of the Russian Federation dated April 1, 2009 No. 2944/09, September 22, 2008 No. 11458/08, resolutions FAS Volga-Vyatka District dated December 4, 2008 No. A82-12138/2007-20, dated July 2, 2008 No. A82-11801/2007-14, Northwestern District dated March 7, 2006 No. A56-42032/ 04, Ural District dated September 11, 2006 No. Ф09-6958/06-С7, West Siberian District dated October 11, 2006 No. Ф04-6725/2006(27205-А27-26) and Volga District dated June 13, 2006 No. A55-22580/05-30). Considering that when calculating income tax and when calculating the single tax, the same procedure for recognizing income from the gratuitous use of property applies, these decisions should also be taken into account by organizations that apply the simplification.

The date of receipt of income in the form of a gratuitously received right to use property is the date of transfer of the property for gratuitous use (for example, the date of drawing up the transfer and acceptance certificate). This follows from paragraph 1 of Article 346.17 of the Tax Code of the Russian Federation.

For a non-profit organization, the economic benefit from the acquired right of gratuitous use is not subject to a single tax if it is transferred state (municipal) property necessary for carrying out its statutory activities. Such property rights are recognized as targeted revenues, which are not taken into account when calculating the single tax. This follows from subparagraph 1 of paragraph 1.1 of Article 346.15 and subparagraph 16 of paragraph 2 of Article 251 of the Tax Code of the Russian Federation and is confirmed by letter of the Ministry of Finance of Russia dated March 26, 2010 No. 03-03-06/4/34.

The borrower does not bear expenses in the form of the value of property received for free use. This is explained by the fact that ownership of the property does not pass to the borrower (Clause 1, Article 689 of the Civil Code of the Russian Federation).

Costs associated with the receipt, maintenance and use of property should be taken into account when calculating the single tax only if they are provided for in Article 346.16 of the Tax Code of the Russian Federation and the obligation to bear them is assigned to the borrower by agreement or law (clause 2 of Article 346.16, clause 1 of Art. 252 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated November 30, 2006 No. 03-11-04/2/251). This applies, for example, to the costs of maintaining property in good condition (including current and major repairs) (Article 695 of the Civil Code of the Russian Federation, subparagraph 3, paragraph 1, Article 346.16 of the Tax Code of the Russian Federation).

In this case, a prerequisite for recognizing expenses is their payment (clause 2 of Article 346.17 of the Tax Code of the Russian Federation).

Do not take into account the costs associated with the maintenance and use of non-productive property when calculating the single tax. This is due to the fact that expenses that reduce the tax base must be incurred to carry out activities aimed at generating income (clause 2 of Article 346.16 and clause 1 of Article 252 of the Tax Code of the Russian Federation).

The return of property received under a free use agreement does not affect taxation. Since there is no transfer of ownership, the organization does not receive income and does not incur expenses.

An example of reflection in accounting and taxation of property received for free use. The organization applies simplification and maintains accounting in full

Alpha LLC, which uses the simplified procedure, received a truck worth 1,000,000 rubles for free use from its founder. According to an independent appraiser, renting a similar car costs 40,000 rubles. per month (excluding VAT).

The Alpha accountant uses account 001 “Leased fixed assets” to account for property received free of charge. The accountant reflected the receipt of premises for free use as follows:

Debit 001 – 1,000,000 rub. – the car was accepted for registration under a free use agreement (based on the transfer and acceptance certificate).

In the book of income and expenses, “Alpha” monthly reflects income from the gratuitous use of property in the amount of 40,000 rubles, which increases the tax base for the single tax.

You receive property free of charge using the simplified tax system

Individual entrepreneurs and LLCs cannot simply receive property worth more than 3,000 rubles from other commercial organizations.
But from individuals, non-profit organizations, state and municipal bodies, foreign companies - they can do so without restrictions on the amount. Individual entrepreneur in this context also refers to commercial organizations, because according to Art. 50 of the Civil Code of the Russian Federation, commercial organizations are distinguished by their goal - making a profit. Therefore, gratuitous cases of individual entrepreneurs are also not typical.

How to take into account in the simplified tax system

Consider the receipt of such property as normal payment. Just not with money, but with goods or materials. The date is usually indicated in the acceptance certificate.

Exception: the income of the simplified tax system may not take into account material assistance from the founder or organization whose share in the authorized capital of the company is more than 50%.

How to calculate market value

To understand how much income to take into account in rubles, determine the market value of the donated property. The easiest way is to compare it with a similar one. Article 40 of the Tax Code of the Russian Federation allows you to take information about prices in the media, which means you can find a similar product in online stores, selling platforms and compare it with what was given to you. You can also apply improving or worsening coefficients if you cannot find a product in exactly the same condition. Be sure to record in free form how you calculated this cost.

But this can be done with simple property such as equipment, furniture or cars. With real estate, for example, it is better not to do this - the calculations there are much more complicated and it is better to evaluate it by an independent appraiser.

Transport tax

If an organization has received a vehicle for free use, it does not have the obligation to pay transport tax. It is paid by the organization to which the vehicle is registered (Article 357 of the Tax Code of the Russian Federation). The owner can register a vehicle (clause 20 of the Rules approved by order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001, clause 4 of the Methodological Recommendations approved by order of the Ministry of Taxes of Russia dated April 9, 2003 No. BG-3-21/177) . (The legislation provides for a number of exceptions to this rule (for example, when leasing vehicles), but gratuitous use does not apply to them.) The ownership of vehicles under an agreement for gratuitous use does not pass to the borrower (clause 1 of Article 689 of the Civil Code of the Russian Federation) . Therefore, he does not have a subject to transport tax.

Agreement for free rental of non-residential premises under the simplified tax system

Many legal entities of economic activity, which include various LLCs, as well as other enterprises, choose a simplified taxation system (STS). It provides for a fixed payment of 15% of the amount of their income (tax), as well as other mandatory payments to various funds (for example, for their employees).

Such business entities can rent real estate free of charge, both from ordinary citizens and from legal entities, as well as individual entrepreneurs.

Free rent of non-residential premises from an individual and from participants in business activities is subject to taxation in accordance with the Tax Code, as well as other explanatory legal acts (clarification of the Supreme Administrative Court, letters from tax inspectors).

To calculate the required amount of money from which taxes will be paid, the following information is used. The general characteristics of the premises are taken, and then statistical or market data, based on which you can find out how much rent is paid for similar objects by business entities in the region or in a specific locality. This is necessary for those enterprises that produce goods or provide services. Based on this information, the monthly estimated rental amount is included in the cost of the product, then the income from sales is calculated, and the simplified tax system is paid. This calculation algorithm is used for all business entities that act as borrowers. If this is not done, then the tax office will do it, and then, in addition to the tax, you will have to pay not only a penalty, but also penalties.

Those citizens who own premises do not pay any taxes for renting out their property for free use. The exception is the tax that is paid for the ownership of the real estate itself.

It is important to understand that in legal practice there is no such agreement as the gratuitous lease of non-residential premises. To formalize such legal relations, an agreement is concluded to provide a loan in the form of a specific piece of real estate, which indicates its individual characteristics.

Agreement for free use of non-residential premises

In legal practice, there are situations when an entity engaged in business activities (individual entrepreneurs, LLCs and other legal entities) enter into agreements for the gratuitous use of non-residential premises.

It should be noted right away that these agreements do not in any way affect the process of forming the tax base, therefore it is formed on the grounds that were indicated above.

Typically, such transactions are used by different legal entities that have the same founders. This is necessary in order to reduce production and other costs for the production of products or services. Tax authorities treat such agreements with special attention, and employees of the accounting services of such business entities are required to be attentive to the process of forming the base from which deductions in the form of taxes will be paid.

It is important to know that such gratuitous rental of non-residential premises between legal entities is characterized by the fact that lenders, although they do not pay any fees for providing a gratuitous loan, are subject to mandatory payment of a fee for real estate, which, although rented out for gratuitous use, is located in them on the balance sheet.

Land tax

If an organization has received a plot of land for free use, then the obligation to pay land tax depends on the period for which the loan agreement was concluded.

For land plots received for temporary free use, the borrower does not need to pay tax (clause 2 of Article 388 of the Tax Code of the Russian Federation).

If an organization has received a land plot for permanent (indefinite) use free of charge (by decision of a state or municipal department), then it will need to pay land tax if regional or local legislation does not establish any benefits (clause 1 of Article 388, Article 395 Tax Code of the Russian Federation).

UTII

Free use of someone else's property is a property right received free of charge. The object of UTII taxation is imputed income, which is calculated based on the size of the physical indicator (number of employees, sales floor area, number of sales places, etc.) (clauses 1, 2 of Article 346.29 of the Tax Code of the Russian Federation). Therefore, the economic benefit received from the free use of property does not affect the calculation of the single tax.

However, an object can be received for free use, which is taken into account when calculating the physical indicator in certain types of activities (vehicle, retail space, etc.). In this case, receiving property for free use may affect:

• or for the amount of UTII to be transferred to the budget;

• or the right to apply a special regime.

For example, this is possible when a vehicle is received for free use by an organization transporting goods.

This type of activity falls under UTII if the number of vehicles intended for transportation (regardless of the type of rights on the basis of which the organization disposes of vehicles (ownership or disposal)) does not exceed 20 units. If, upon receipt of a vehicle for free use, this limit is exceeded, the organization will lose the right to use the special regime.

If the limit is not exceeded, the amount of UTII to be transferred to the budget will increase. It is explained like this. The amount of the single tax for this type of activity is calculated based on the number of cars actually used by the organization, regardless of the type of rights on the basis of which the organization disposes of the cars (ownership or disposal). That is, when receiving a vehicle intended for transportation for free use, it will need to be taken into account when calculating UTII.

This follows from subparagraph 5 of paragraph 2 of Article 346.26, paragraphs 2, 3 of Article 346.29 of the Tax Code of the Russian Federation and is confirmed by letter of the Ministry of Finance of Russia dated December 4, 2007 No. 03-11-04/3/479.

Situation: is it necessary to pay income tax on the economic benefits received from the gratuitous use of property? The organization pays UTII.

Yes need.

Only certain types of activities are transferred to the payment of UTII (clause 2 of Article 346.26 of the Tax Code of the Russian Federation). The operation of obtaining property for free use is not named in this list. Accordingly, income in the form of economic benefits from the gratuitous use of property must be taken into account separately as not related to activities on UTII (clauses 9, 10 of Article 274 and clause 7 of Article 346.26 of the Tax Code of the Russian Federation). The benefit should be recognized as non-operating income received as part of other independent business activities. The amount of income received must be included in the taxable base for income tax (clause 8 of Article 250 of the Tax Code of the Russian Federation). Similar clarifications are contained in letters of the Ministry of Finance of Russia dated September 20, 2012 No. 03-11-06/3/66, dated December 23, 2008 No. 03-11-04/3/568 and dated October 22, 2008 No. 03- 11-04/3/468.

Advice: when calculating income tax, such income may not be taken into account. The main thing is that such property is used in activities on UTII.

Such explanations were given to entrepreneurs on UTII in a letter from the Ministry of Finance of Russia dated December 19, 2014 No. 03-11-11/65823. But they can also be used by organizations in the same special regime.

The return of property received for free use may affect the calculation of the single tax if it was taken into account when calculating the physical indicator.

OSNO and UTII

If an organization uses the general system and pays UTII, then the taxation of income in the form of economic benefits from receiving property for free use depends on the activity within which it is used.

You will pay income tax on the economic benefits from the gratuitous use of the received property in activities under the general taxation system. For information on how to pay taxes if property was received directly for carrying out an activity transferred to the payment of UTII, see Is it necessary to pay income tax on economic benefits received from the gratuitous use of property.

If the property was received to carry out an activity transferred to a special regime, it may affect:

• or for the amount of UTII to be transferred to the budget;

• or the right to apply a special regime.

This follows from paragraph 2 of Article 346.26 and paragraphs 2, 3 of Article 346.29 of the Tax Code of the Russian Federation. See above for more details.

Costs for the maintenance and use of property that an organization uses simultaneously in activities subject to UTII and activities for which taxes are paid under the general taxation system must be distributed in proportion to the share of income received from each of these types of activities (clause 9 of Article 274 of the Tax Code RF).

The costs of maintaining property that is used in any one type of activity do not need to be distributed.

The return of property received for free use may affect the calculation of the single tax if it was taken into account when calculating the physical indicator. The return of property will not affect the calculation of taxes within the general taxation system. Since there is no transfer of ownership, the organization does not receive income and does not incur expenses.

Do not deal with gratuitous services

But it is absolutely impossible to receive or provide services free of charge to commercial organizations and individual entrepreneurs. Even if they are cheaper than 3 thousand rubles. Here's the thing: inexpensive property can still be regarded as a gift between commercial partners, but the service is no longer there. Free services contradict the very principle of commerce.

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