In case of gratuitous (unpaid) transfer (provision) of property (property), the specifics of calculating income tax are documented and presented in the Civil and Tax Codes.
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What is gratuitous transfer of property?
The unpaid provision of property means the transfer of things, financial resources, services or intellectual property from one person to another with the absence of payment for temporary or permanent (donation) use, formalized by an appropriate agreement.
Temporary use and donation differ:
- owner of the property. A gift implies that the recipient becomes the owner of the property, whereas in an unpaid transfer the transferor remains the owner;
- temporary or permanent nature of ownership of property. A donation does not imply the return of the object of the agreement. Temporary use is intended for the return of previously received property. At the time of return, the condition of the property is determined by agreement or, by default, the level of natural wear and tear is taken into account.
The parties to the agreement for the transfer of ownership rights may be:
- commercial education;
- non-profit education;
- physical entity;
- a legal entity that is the owner of the donated item.
The following have the right to present property for free use:
- owner of the thing4
- other persons who have this right granted to them by law or by the owner.
Good to know! A commercial association does not have the right to provide property for unpaid use to a person if the latter is its founder, shareholder, manager, and is also a member of the board and inspection bodies.
Donation items may include:
- products belonging to the owner;
- owner's property right;
- property right of the owner in relation to a third party or gratuitous waiver of a certain claim;
- getting rid of the fulfillment of a property obligation (forgiveness of a debt obligation);
- release from a debt obligation to another person.
Let's celebrate! When transferring property, you must include all accessories, components, as well as documents - technical passport, instructions for its use, etc.
Transfer of real estate for free use
This obligation is similar to a regular lease or lease, which involves the transfer of real estate into possession and use for a fee, with the only difference that gratuitous use does not imply reciprocal performance. The contract must clearly state the subject, that is, the premises that are transferred for use. You can also determine the circle of persons who have the right to use the premises together with the borrower. Despite the fact that such a transaction does not provide for payment for the use of real estate, this does not mean that the borrower does not incur any expenses. He is responsible for maintaining the property in proper condition and bearing the costs of its maintenance.
In law.
In cases of real estate registration, you have the right to compensation for financial expenses and legal costs, as well as compensation for moral damages, collecting them in court.
Income tax for an organization transferring property for free use
Since the participant transferring the property for unpaid use has no income, no income tax is charged.
Accordingly, expenses that are not taken into account for taxation in relation to the lender include:
- the total value of the freely transferred property;
- the costs of its maintenance.
Features of tax accounting
To carry out tax accounting, it is necessary to first conduct an assessment of the unpaid property received, which is made on the date of its receipt and corresponds to its market value.
This assessment can be made by:
- an independent appraiser who has the necessary license;
- the taxpayer himself.
Good to know! If the assessment is carried out by the taxpayer, he must prove the validity of the calculation of the value of the thing through documents showing the submitted prices.
A taxpayer can use the following sources of information about prices on the market:
- exchange prices;
- national statistical offices;
- institutions that regulate pricing;
- mass media.
Property transferred for free use includes:
material and production reserves:
- raw materials and materials used in the production process;
- things intended for sale;
- materials and funds used for management coordination;
- fixed assets;
- intangible funds;
items of intellectual property (prerogative right of the patent holder, copyright, property right, owner's right):
- invention, production model;
- computer utilities, databases;
- topologies of aggregate chips;
- trademark and service mark, name of the place of production of goods;
- breeding achievements;
cash deposits:
- national, municipal and other securities;
- investments in the authorized capital of other institutions;
- loans, depositary investments in credit institutions, receivable liabilities acquired through relaxation of the right to claim, etc.
Taxable income...
According to tax accounting rules, all income that is not revenue from the sale of goods (work, services) and property rights is considered non-operating income. Their open list is in Article 250 of the Tax Code of the Russian Federation. For example, non-operating income includes:
- dividends;
- interest received under loan and credit agreements;
- gratuitously received property and property rights;
- income from previous years identified in the current period;
- amounts of accounts payable written off due to the expiration of the statute of limitations;
- the cost of surplus inventories and other property identified during the inventory, etc.
Among non-operating income subject to income tax is income in the form of gratuitously received property (work, services) or property rights (clause 8 of Article 250 of the Tax Code of the Russian Federation).
After all, income is not only the actual receipt of money. Income (economic benefit) from the free use of property consists of the money saved that the company would have paid if it had used the property for a fee.
In this case, income must be assessed based on market prices, but not lower than the residual value - for depreciable property and not lower than production (purchase) costs - for other property (work performed, services provided). The taxpayer - recipient of property (work, services) must confirm information about prices with documents or by conducting an independent assessment.
Income tax for an organization that has received property for free use
Property (thing, labor relations, service) or owner's rights acquired free of charge are considered as non-operating income of the taxpayer.
However, transferred property is not recognized as non-operating income if it was acquired from:
- a providing institution whose investment (part of the share) is equal to 50% or more of the authorized capital of the acquiring participant, and vice versa;
- an individual whose investment (part of the share) is equal to 50% or more of the authorized capital of the acquiring participant;
- founders of the organization to increase net assets, such as the formation of surplus capital and/or funds.
Let's celebrate! If the agreement imposes the costs of maintaining the property on the lender, they are excluded from the costs of the borrower; accordingly, the taxpayer reduces the income received by the totality of available costs.
Agreement for free use of a car
A contract for the free use of a car is concluded between the owner and the person to whom the car is transferred for temporary free use. Such agreements are quite common in practice; in everyday life, as a rule, they are not drawn up in writing. The parties simply agree on everything verbally.
However, such a formal attitude can lead to unpleasant consequences in cases of damage to both the car itself and other vehicles, and in some cases, injury to citizens. No one is immune from this, since a car is a source of increased danger. Therefore, it would be correct to formalize the relationship for gratuitous use in writing.
What should you pay attention to when concluding an agreement for the free use of a car?
First, the parties must describe in detail the technical condition of the car. To do this, you can use the services of specialized organizations. The acceptance certificate describes the appearance of the car, its technical condition, the presence of additional equipment and the condition of the interior.
Secondly, the contract must indicate who has the right to drive the car, and whether transfer of the vehicle to third parties is allowed.
Thirdly, the contract must contain information about the operating conditions of the car. It is clear that vehicles are subject to wear and tear, which depends on its use. A car used as a taxi will be subject to much more abuse than a car used only for commuting and weekend shopping. Cars in sports competitions experience great risk in use and serious loads.
Income tax on gratuitous transfer (receipt) of property with transfer of ownership
When carrying out the transfer or acquisition of property with the acquisition of ownership rights, when calculating the amount of income tax, it is necessary to remember that in this case non-operating income arises. The resulting non-operating income is determined by the number of transfers of property.
The tax amount may include:
- property tax;
- transport tax;
- depreciation amount.
Good to know! The above amounts are accrued when the subject of the agreement becomes subject to taxation and is paid by the owner (acquiring participant).
When calculating income tax on the gratuitous transfer of property, you should take into account:
- type of agreement for gratuitous transfer of property;
- liability of the parties;
- features of the calculation of this tax according to the subject of taxation.
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Parties to an agreement on the free use of property
Any contract requires at least two participants.
The free use transaction involves:
- the lender, that is, the party providing the property;
- borrower - a person to whom property is temporarily transferred.
Before signing an agreement, it is important to ensure that the potential lender has the appropriate authority. It is the owner's prerogative to transfer property to someone. At the same time, there may be some restrictions on the rights of the owner, for example, if the property is pledged or under arrest.
The lender, in addition to the owner, can be a subject who has the right to dispose of the entrusted property on behalf of the owner or possessor. For example, the tenant has the right to transfer the leased object for free use, subject to the consent of the owner. If we are talking about leasing an enterprise, then the owner’s consent is not required.
It is worthwhile to dwell specifically on the powers of guardians and trustees. Since the guardian (trustee) is obliged to act strictly in the interests of his ward, in order to conclude an agreement for gratuitous use or approve such an agreement, he must obtain the consent of social services.
Restrictions are established not only in relation to lenders, but also those to whom property can be transferred for temporary use. Article 690 of the Civil Code contains a direct prohibition on carrying out such transactions between a commercial company with its founders, as well as participants and managers.
Another ban was established by Federal Law No. 73-FZ of June 25, 2002 “On objects of cultural heritage (historical and cultural monuments) of the peoples of the Russian Federation.” Thus, the transfer to commercial companies without payment of state-owned cultural objects named in the relevant register is prohibited.
Judicial practice extends this analogy to many proceedings in which a gratuitous use agreement is concluded between commercial organizations. The courts proceed from the fact that such transactions contradict the principles of the activities of commercial enterprises created, first of all, to conduct business and make a profit.
