How a company sells real estate and records the transaction

When does the moment of determining the tax base arise?

According to the general rule (clause 1 of Article 167 of the Tax Code of the Russian Federation), the moment of determining the VAT base is the earliest of the following dates:

• the day of shipment of goods (works, services), transfer of property rights;
• day of payment, partial payment for upcoming deliveries of goods (performance of work, provision of services), transfer of property rights.

Otherwise provided for in paragraphs 3, 7 - 11, 13 - 15 of Art. 167 Tax Code of the Russian Federation. We are interested in clause 3, which states: if the goods are not shipped or transported, but the transfer of ownership of it occurs, such transfer of ownership for the purposes of calculating VAT is equivalent to its shipment. However, as of July 1, 2014, an exception also appeared to this rule - clause 16.

When selling real estate, the date of shipment for the purposes of this chapter is the day of transfer of real estate to the buyer of this property under a transfer deed or other document on the transfer of real estate.

Another exception that needs to be paid attention to is clause 14, on the basis of which if the moment of determining the tax base is the day of receipt of the advance payment, then on the day of shipment of goods (performance of work, provision of services) on account of the previously received payment, the moment of determining the tax base also arises bases.

Thus, when selling real estate, the moment of determining the VAT base is:

• the day of receipt of payment for the upcoming sale (if, based on the terms of the contract, the transfer of real estate is carried out on an advance payment basis);
• the day of transfer of property to the buyer according to the transfer deed (other transfer document).

In this case, the moment of transfer of ownership, that is, the date of state registration of the buyer’s ownership of the acquired property, does not affect the time of determining the tax base, as it was before 07/01/2014.

At the same time, the Ministry of Finance in Letter dated December 17, 2015 N 03-07-11/74052 indicated that the moment of formation of the VAT base for the sale of real estate is determined before the date of state registration of the buyer’s ownership of this property. This approach does not always work, since state registration of property rights may well be carried out before the actual transfer of the property to the buyer. Therefore, there is no need to charge VAT before the transfer of the property due to the fact that state registration of ownership has been carried out. Confirmation of this can be found in judicial practice.

Calculation of VAT on the sale of renovated and furnished apartments

Answer In accordance with the provisions of subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation, transactions for the sale of goods are recognized as an object of VAT taxation

(
works
, services) on the territory of the Russian Federation, as well as transfer of property rights.

Consequently, operations for the sale of goods and services on the territory of the Russian Federation are subject to VAT taxation in the generally established manner.

At the same time, by virtue of subparagraph 22 of paragraph 3 of Article 149 of the Tax Code of the Russian Federation, sales operations

residential buildings,
residential premises
, as well as shares in them.

Thus , the transaction for the sale of residential premises is exempt from VAT taxation on the territory of the Russian Federation

.

From the question it follows that the price of the contract for the sale of residential premises includes work on carrying out designer renovations and equipping the kitchen with furniture.

The operations of repair work and the sale of furniture themselves are recognized as operations subject to VAT. Meanwhile, we note the following.

In accordance with paragraph 1 of Article 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (goods) into the ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it.

By virtue of paragraph 1 of Article 549 of the Civil Code of the Russian Federation, under an agreement for the purchase and sale of real estate (real estate sale agreement), the seller undertakes to transfer into the ownership of the buyer a land plot, building, structure, apartment or other real estate (Article 130).

The contract for the sale of real estate must provide for the price of this property (clause 1 of Article 555 of the Civil Code of the Russian Federation).

In this case, the general provisions on the quality of goods apply to the contract for the sale of real estate.

Thus, on the basis of paragraph 1 of Article 469 of the Civil Code of the Russian Federation, the seller is obliged to transfer to the buyer goods, the quality of which corresponds to the purchase and sale agreement.

When selling goods according to a sample and (or) description, the seller is obliged to transfer to the buyer the goods that correspond to the sample and (or) description

(Clause 3 of Article 469 of the Civil Code of the Russian Federation).

Article 557 of the Civil Code of the Russian Federation establishes that in the event of a transfer by the seller to the buyer of real estate that does not comply with the terms of the contract for the sale of real estate on its quality, the rules of Article 475 are applied

“Consequences of the transfer of goods of inadequate quality” of the Civil Code of the Russian Federation, with the exception of provisions on the buyer’s right to demand the replacement of goods of inadequate quality with goods that comply with the contract.

From the above rules it follows that the parties to the contract for the sale of residential premises have the right to establish in the contract a condition that the premises subject to sale are renovated and equipped with a kitchen

.

In this case, premises that meet the conditions stipulated by the contract will be recognized as goods of appropriate quality.

.

Thus, in our opinion, in the case we are considering, as part of the contract for the sale of residential premises, the seller is obliged to transfer to the buyer premises that meet the following conditions:

— availability of designer renovation;

— the kitchen is equipped with furniture.

In this case, in our opinion, the renovation of the premises and equipping the premises with furniture are not an independent subject of the contract

, but are directly related to the sale of residential premises.

Consequently, the seller does not carry out individual repair work in relation to the buyer and does not sell kitchen furniture, but fulfills the requirements stipulated in the contract for the sale of real estate regarding bringing the object of sale to the condition specified in the contract and suitable for sale.

Based on the above, we believe that the cost of repair work, as well as the cost of furniture, should not be separately allocated in the contract.

o, and are also
not subject to VAT
.

Let us note that, by virtue of paragraph 2 of Article 170 of the Tax Code of the Russian Federation, tax amounts presented to the buyer when purchasing goods (work, services) are taken into account in the cost of such goods

(works, services),
in cases
:

1) acquisition of goods (works)

, services) used for operations for the production and (or) sale (as well as transfer, execution, provision for one’s own needs) of goods (work, services) that are
not subject to taxation (exempt from taxation)
.

Thus, the inclusion of the amount of “input” VAT on purchased furniture and purchased repair work will be an additional argument for the Organization in favor of the fact that these objects were acquired for the purpose of carrying out a VAT-free transaction - the sale of residential premises.

Meanwhile, we draw your attention to the presence of court decisions in which, in the case of the lease of residential premises with furniture, the tax authority calculated VAT on the amount of the rental payment, which, in the opinion of the tax authority, relates to the rental of household appliances, i.e. activities subject to VAT - Resolution of the Federal Antimonopoly Service of the Ural District dated January 12, 2011 No. Ф09-10619/10-С2 in case No. А60-17733/2010-С8:

“According to sub. 10 paragraph 2 art. 149 of the Code is not subject to value added tax (exempt from taxation) the sale on the territory of the Russian Federation of services for the provision of residential premises for use in the housing stock of all forms of ownership.

The Tax Code of the Russian Federation does not contain the concept of “services for the provision of residential premises for use.”

In accordance with paragraph 1 of Art. 671 of the Civil Code of the Russian Federation, under a residential lease agreement, one party - the owner of the residential premises or a person authorized by him (lessor) - undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it.

According to paragraph 1 of Art. 682 of the Civil Code of the Russian Federation, the amount of payment for residential premises is established by agreement of the parties in the rental agreement for residential premises. If, in accordance with the law, a maximum amount of payment for residential premises is established, the payment established in the contract should not exceed this amount.

Article 154 of the Housing Code of the Russian Federation distinguishes between fees for the use of residential premises (rental fees), which are charged to the tenant of residential premises, and fees for the maintenance and repair of residential premises, which includes fees for services and work on managing an apartment building, maintenance and current repair of common property in an apartment building, collected from both the tenant and the owner (tenant) of the residential premises.

In accordance with paragraph 2 of Art. 15 of the Housing Code of the Russian Federation, residential premises are recognized as isolated premises, which are real estate and are suitable for permanent residence of citizens (meets established sanitary and technical rules and regulations, and other legal requirements).

As follows from the case materials and established by the courts, on June 20, 2008, the entrepreneur (landlord) entered into a rental agreement for residential premises, according to which the tenant is transferred to the tenant a premises owned by the landlord for a fee for temporary possession and use for living in it - a three-room apartment.

According to clause 1.6. simultaneously with the premises, keys, household appliances, furniture and other property are transferred to the tenant under the acceptance certificate.

Clause 1.3. The agreement provides for a fee for using the apartment in the amount of 40,000 rubles.

The premises and property are transferred to the tenant according to the deed.

In total, in the 3rd and 4th quarters of 2008, the entrepreneur received 240,000 rubles under the contract.

The courts have determined that other property transferred under the contract (furniture, household appliances)
is a component of the leased premises and the transfer of this property is not an independent subject of the contract
.

Under such circumstances, the courts correctly declared unlawful the additional charge of VAT to an entrepreneur on the specified basis

».

From the text of the Resolution it follows that the court ruled in favor of the taxpayer. However, the very existence of judicial practice indicates the presence of a risk associated with the additional assessment of VAT by the tax authority in relation to a transaction associated with the transfer of other property as part of a residential premises.

We note that there are no official explanations from fiscal authorities and arbitration practice on the issue we are considering. In this connection, we cannot assess the likelihood of claims from the tax authorities.

College of Tax Consultants, November 9, 2021

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About the transfer of real estate

The statement that state registration is possible before the transfer of real estate is based on the following provisions of the Civil Code.

Based on the presented provisions of Art. Art. 551 and 556 of the Civil Code of the Russian Federation on the moment the seller of real estate fulfills the obligation to transfer it to the buyer, the Presidium of the Supreme Arbitration Court of the Russian Federation makes the following conclusion (Resolution dated September 20, 2011 N 5785/11).

These provisions allow the parties to a real estate purchase and sale agreement to establish that the transfer must take place after state registration of the transfer of ownership. The agreement by the parties in the purchase and sale agreement on the transfer of property after state registration of the transfer of rights also does not violate any other mandatory requirements of Russian civil law.

Consequently, current legislation provides for the possibility of transferring real estate after state registration of ownership of it.

Practice based on clarifications from the Federal Tax Service and the Ministry of Finance

The current procedure for recovering VAT on the construction of real estate has been applied since January 1, 2006. The tax service wrote about this in its letter dated November 28, 2008 No. ШС-6-3/ [email protected] The conclusions contained in the document are still valid today:

• the norms of the Tax Code establish a procedure for accelerated deduction of VAT during real estate construction even before the object is put into operation;
• VAT amounts presented to the taxpayer during the construction or purchase of this property are accepted for deduction in full, even if these objects will be simultaneously used to carry out both taxable and non-VAT-taxable activities;
• when the specified property is put into operation, the tax amounts accepted for deduction are restored and paid to the budget within 10 years in a special manner.

There is one caveat - the mentioned letter contains references to the old norms of the Tax Code of the Russian Federation. However, we said above that the provisions of these norms are fully reflected in the current edition of the Tax Code. Therefore, in essence (and not based on references to articles of the Code), the conclusions made in this letter are still correct today. The Tax Service indicated this in its letter dated May 21, 2015 No. GD-4-3/ [email protected] It states that the VAT recovery procedure described in Article 171.1 of the Tax Code of the Russian Federation applies to acquired or constructed fixed assets that are real estate. And that the same procedure for tax restoration was applied earlier in accordance with paragraphs 4 – 9 of paragraph 6 of Article 171 of the Tax Code of the Russian Federation.

In the same letter, the Federal Tax Service explains: even if real estate begins to be used exclusively for activities that are not subject to VAT, the tax still needs to be restored in a special manner within 10 years. The letter does not indicate how input tax is deducted in this case. But since the document describes the process of VAT restoration, it turns out that the legality of tax deduction in this situation is not called into question.

Later, the Ministry of Finance issued an explanation (letter dated December 1, 2016 No. 03‑07‑11/71110) that even if the constructed property begins to be used in operations that are subject to UTII, then VAT also needs to be restored in a special manner in accordance with Article 171.1 Tax Code of the Russian Federation. The conclusions that follow from this letter are as follows: the amounts of VAT presented to the owner as part of the cost of acquired real estate under a purchase and sale agreement can be deducted in full, even if the property is intended for carrying out transactions subject to both VAT and UTII. When such property is put into operation, then, in accordance with paragraphs 4 and 5 of Article 171.1 of the Tax Code of the Russian Federation, VAT accepted for deduction must be restored and paid to the budget not at once, but within 10 years.

The same conclusion, but with regard to VAT amounts claimed by contractors in capital construction, is contained in the letter of the Ministry of Finance dated March 30, 2017 No. 03-07-10/18453. Thus, this VAT is also deductible in full, regardless of whether this property will participate in the implementation of only VAT-taxable activities, or whether it will be used simultaneously for both taxable and non-taxable transactions. The ten-year VAT restoration period in this case is counted from the year in which such property begins to accrue depreciation in accordance with paragraph 4 of Article 259 of the Tax Code of the Russian Federation.

About the extract from the Unified State Register

As practice shows, the tax authority, despite the changes made to the Tax Code, continues to insist that the moment of determining the VAT base is the date of state registration of the transfer of ownership of the property to the buyer (if there was no transfer under the transfer deed before). At the same time, tax authorities justify this by the fact that another document determining the day of transfer of real estate, in accordance with clause 16 of Art. 167 of the Tax Code of the Russian Federation may be a certificate of state registration of rights or an extract from the Unified State Register of Rights to Real Estate and Transactions with It.

However, from paragraph 1 of Art. 7 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” it follows that an extract from the Unified State Register is a document containing information about registered rights to an object of real estate, but does not certify the fact of transfer of the specified property (Resolution of the AS PO dated 09/08/2016 N F06-12029/2016 in case N A12-55427/2015).

THE TAX IS PAID AS A COMPOSITION OF THE PURCHASE PRICE TO THE SELLER OF THE PROPERTY.

In practice, there are situations when the buyer of state (municipal) property does not withhold VAT from the income transferred to the seller and does not transfer the corresponding amounts to the budget. Although (we remind you) it is he (by virtue of clause 4 of Article 173 of the Tax Code of the Russian Federation) who bears this responsibility.

In such circumstances, the seller will receive income along with VAT, and it is not a fact that he will have a desire to “part with” the amount of tax (most likely, the same disputes will begin: was the tax included in the cost of the property and, accordingly, was an unreasonable amount received? enrichment).

Meanwhile, the buyer will be recognized as having a tax arrears (with all the ensuing consequences). Proof of this is case No. A09-10032/2015, on which the position of the Judicial Collegium on Economic Disputes of the Supreme Court of the Russian Federation was recently formed. Let us dwell on the Ruling of the RF Armed Forces dated May 23, 2017 No. 310‑KG16-17804 in detail.

An individual entrepreneur, being a tax payer when applying the simplified tax system, when purchasing municipal property (several objects) did not fulfill the duties of a tax agent and did not inform the inspectorate (in accordance with paragraph 2, paragraph 3, article 24 of the Tax Code of the Russian Federation) about the impossibility of fulfilling this duty.

The result of such actions was the bringing of the entrepreneur to liability under paragraph 1 of Art. 123 Tax Code of the Russian Federation.

Note:

Unlawful failure to withhold and (or) transfer (incomplete withholding and (or) transfer) within the time limit established by the Tax Code of the Russian Federation of amounts of tax subject to withholding and transfer by a tax agent, entails a fine in the amount of 20% of the amount subject to withholding and (or) transfer (clause 1 Article 123 of the Tax Code of the Russian Federation).

The tax authority also suggested that the taxpayer pay the unwithheld VAT (2,830,755 rubles) and the corresponding amounts of penalties to the federal budget.

The entrepreneur did not agree with the inspector’s decision (after all, the amount of tax was transferred by him as part of the redemption price to the seller of municipal property - the property management committee) and tried to challenge it in court.

At first, the situation for the taxpayer was very favorable. Yes, the arbitrators (all three instances) had no doubt: the obligation to calculate, withhold and pay VAT to the budget when acquiring (for business) property lies with the businessman. However, having established that the funds were transferred along with the tax amount, the courts came to the conclusion that the payment of VAT by an entrepreneur to the budget from his own funds will lead to an infringement of his rights and legitimate interests in tax legal relations and will violate the principle of equal and fair taxation. In general, a committee that has unreasonably received a disputed amount of VAT is obliged to transfer the tax to the budget.

In addition, the courts came to the conclusion that it was impossible to determine the amount of penalties payable to the budget in connection with the tax agent’s failure to fulfill the obligation to withhold and transfer to the budget the disputed amount of VAT, since the tax was not withheld by the entrepreneur, and municipal authorities are not VAT payers.

This formulation of the issue did not suit the inspection, and the matter went further - all the way to the Judicial Collegium for Economic Disputes of the RF Armed Forces.

What did the senior judges point out?

Firstly, the conclusions of the judges were confirmed that in the sales contracts the merchant did not act as an individual. The disputed municipal property was acquired by him for use in business activities during the period when he was registered as an individual entrepreneur.

This means (secondly) that the duty of a tax agent (according to the norms of the Tax Code of the Russian Federation) rests with the entrepreneur (and not with the seller of the property).

For your information:

Tax legislation does not provide for a mechanism for collecting VAT amounts from a municipality that is not a VAT payer. In this regard, based on the provisions of paragraphs. 5 paragraph 3 art. 45 of the Tax Code of the Russian Federation, the principle of the impossibility of collecting from a tax agent the amount of VAT not withheld by him, since the taxpayer continues to be the obligated person, to whom the tax authority is subject to the requirement to pay the tax, is not applicable in this case, since in the legal relations (transactions) under consideration the seller of the property is not recognized as a VAT payer. Established in paragraph 5 of Art. 173 of the Tax Code of the Russian Federation, the procedure for paying VAT to the budget is provided for persons who are not payers of this tax, but have issued an invoice with allocated VAT, while in the case under consideration the committee did not issue invoices when selling property under the mentioned transactions.

Thirdly, according to Art. 13 of the Tax Code of the Russian Federation and Art. 50, 62 of the Budget Code of the Russian Federation, VAT is a federal tax and is subject to credit to the federal budget, while income from the use, privatization, and sale of municipally owned property is credited to local budgets. Thus, the erroneous transfer to the municipality, as the seller of the property, as part of the redemption value of the property, of VAT amounts subject to transfer by the tax agent to the federal budget, resulted in the receipt of disputed VAT amounts as part of the mentioned income of the municipality to the local budget.

Since the disputed VAT amounts have not been credited to the federal budget, the obligation to pay tax cannot be recognized as fulfilled by virtue of paragraphs. 4 p. 4 art. 45 of the Tax Code of the Russian Federation.

Fourthly, the fact that the VAT to be transferred to the budget was paid as part of the redemption value of municipal property does not relieve the entrepreneur from fulfilling the duty of a tax agent assigned to him by the Tax Code of the Russian Federation for calculating and paying disputed amounts of VAT to the budget.

Paying tax at your own expense, the RF Armed Forces indicated, will not lead to infringement of the rights and legitimate interests of an entrepreneur in tax legal relations, since, having fulfilled the duty of a tax agent, he will be able to exercise the right to protect his interests within the framework of a civil dispute with a municipal entity regarding the return money received unjustifiably.

For your information:

A similar situation is considered in the Resolution of the AS ZSO dated January 23, 2017 No. F04-6827/2016 in case No. A67-1716/2016. Based on the results of the tax audit, the entrepreneur was charged additional VAT with reference to the fact that he did not withhold or transfer the amount of tax to the budget when purchasing municipal property. The entrepreneur, having paid the additional accrued amounts, considered that the authorized body for the management of state property had unjust enrichment. The entrepreneur’s demand for the recovery of unjust enrichment in the amount of VAT repaid to the budget (as well as interest for the use of other people’s funds) was satisfied, since the price of the property under the purchase and sale agreement should have included VAT.

It is worth noting that by Decree No. 304-ES17-5195 dated May 25, 2017, the transfer of the cassation appeal of the department for state property management for review of this case (No. A67-1716/2016) was refused at the court hearing by the SKES of the Armed Forces of the Russian Federation.

In turn, the inspection in the cassation appeal and the court hearing of the Judicial Collegium indicated that the evidence presented in the case file, including purchase and sale agreements for the disputed property, does not allow us to reliably establish that the redemption value of the purchased property transferred by the entrepreneur to the committee included VAT.

Reports on the assessment of the market value of real estate objects sold on the basis of purchase and sale agreements are mostly absent from the case materials. The presented report of one of the objects of sale, as well as the committee’s announcement of an auction for the sale of municipal property and the purchase and sale agreement (dated October 19, 2012) indicate that the cost of the property sold under the specified agreement did not include VAT.

However, the courts ignored the inspectorate's arguments when considering the case. They did not establish the circumstances related to the formation of the price of the disputed property and the inclusion of VAT in its composition, while this point is essential for the consideration of the dispute in order to determine the actual amount of VAT to be transferred by the entrepreneur to the budget.

Taking into account this argument, the SKES of the Supreme Court of the Russian Federation sent the case to the court of first instance for a new trial on the controversial episode.

The procedure for maintaining tax accounting in relation to depreciable property.

Article 323 of the Tax Code of the Russian Federation states that accounting for income and expenses on depreciable property is carried out object by object (if the organization does not use the non-linear depreciation method).

The taxpayer determines the financial result from the sale of depreciable property on the basis of analytical accounting for each object as of the date of recognition of income (expense). Analytical accounting should contain information:

• on the initial cost of depreciable property;
• about changes in the initial cost of such fixed assets;
• on the accepted useful life of fixed assets and intangible assets;
• on the amount of accrued depreciation for depreciable fixed assets and intangible assets (for objects depreciated using the straight-line method);
• on the amount of accrued depreciation and the total balance of each depreciation group and each depreciation subgroup (when using the non-linear depreciation method);
• on the sales price of depreciable property based on the terms of the purchase and sale agreement;
• on the date of acquisition and date of sale (disposal) of property;
• on the date of transfer of property into operation, on the date of exclusion from depreciable property;
• about expenses incurred by the taxpayer related to the sale (disposal) of depreciable property.

Note:

On the date of the transaction for the sale of depreciable property, the taxpayer determines profit (loss). In analytical accounting, as of this date, the amount of profit (loss) for the specified operation is recorded, which, for the purpose of determining the tax base, is taken into account in the following order:

• the profit received by the taxpayer is subject to inclusion in the tax base in the reporting period in which the property was sold;
• the loss received by the taxpayer is reflected in analytical accounting as other expenses in accordance with the procedure established by Art. 268 Tax Code of the Russian Federation.

Reflection of loss in tax return.

The corporate income tax return must indicate the following information:

• about the loss incurred upon the sale of depreciable property;
• about the amount that is included in expenses for profit tax purposes in a specific reporting (tax) period.

These data will be reflected in sheet 02, as well as appendices 1 – 3 to this sheet.

First, you should fill out lines 010 – 060 and 340 – 360 in Appendix 3, namely:

• line 010 shows the number of objects for sale of property - total;
• on line 020 – including objects sold at a loss;
• on line 030 – the total amount of proceeds from the sale of depreciable property;
• on line 040 – the residual value of the sold depreciable property and expenses associated with its sale;
• on line 050 - profit (excluding objects sold at a loss), and on line 060 - loss from the sale of depreciable property (excluding objects sold at a profit).

At the same time, the results from the sale of depreciable property, in accordance with the provisions of Art. 323 of the Tax Code of the Russian Federation, are formed separately.

The indicators of lines 030, 040 and 060 are reflected respectively in lines 340, 350 and 360 of Appendix 3 to sheet 02. In turn, the indicators of these lines are used when filling out sheet 02, as well as appendices 1 and 2 to this sheet. Thus, line indicator 340 is indicated in line 030 of Appendix 1, line indicator 350 is indicated in line 080 of Appendix 2, and line indicator 360 is indicated in line 050 of Sheet 02.

Example 2

Let's use the data from example 1. In Appendix 3 to sheet 02 of the declaration for the first quarter, the organization will reflect:

• on lines 010 and 020 – 1;
• on line 030 – 200,000 rubles;
• on line 040 – 300,000 rubles;
• on line 060 – 100,000 rub.

Let us show schematically which lines of which applications will contain data on the sale of a fixed asset at a loss.

Please note that the proceeds from the sale of fixed assets fell into line 010 of sheet 02, and expenses - into line 030 of sheet 02. So that the loss received from the sale of depreciable property was not taken into account at a time for profit tax purposes, the developers of the declaration in sheet 02 “carried out” the loss from sales in a separate line 050, which is included with the “+” sign when calculating profit on line 060.

For clarity, let’s assume that, besides this operation, the organization had no other operations. Sheet 02 will look like this:

The amount of loss included monthly in other expenses taken into account for profit tax purposes is indicated on line 100 of Appendix 2 of Sheet 02.

In the declaration for the first quarter, this amount is equal to 10,000 rubles, for the six months - 40,000 rubles; for nine months – 70,000 rubles; per year – 100,000 rubles.

Accounting.

In accounting, unlike tax accounting, the loss from the sale of fixed assets is recognized as a lump sum. Therefore, for the amount of the loss that will be taken into account for tax purposes in the following reporting periods, a deductible temporary difference is formed in the seller’s accounting on the date of sale of the property, leading to the formation of IT (clauses 11, 14 PBU 18/02 “Accounting for calculations of corporate income tax "). The amount of ONA is reflected in the credit of account 68 and the debit of account 09.

Repayment of the deductible temporary difference and ONA will be made as the amount of loss from the sale of depreciable property is recognized in tax accounting and will be reflected in accounting by a reverse entry to accounts 09 and 68 (paragraph 2 of clause 17 of PBU 18/02). Repayment is made monthly for 12 months, starting from the month following the month in which the OS was sold.

Example 3

Let's use the data from example 1.

The following entries will be made in accounting:

If the property was under conservation.

According to paragraph 3 of Art. 256 of the Tax Code of the Russian Federation, fixed assets transferred by decision of the organization’s management for conservation for a period of more than three months are excluded from depreciable property for the purpose of calculating income tax. When an object of fixed assets is re-mothballed, depreciation is accrued on it in the manner in force before its mothballing, and the useful life is extended for the period that the object is mothballed.

If a taxpayer sells at a loss an asset that, for one reason or another, has been mothballed for more than three months, then when determining the actual service life of this object (on the basis of which the period for writing off the loss is calculated), the mothballing period is not taken into account.

Example 4

Let's use the data from example 1 with the only difference that the equipment was mothballed from May to October 2021 (6 months).

A loss of 100,000 rubles was received from the sale of equipment.

20 months have passed from the start of equipment depreciation (July 2021) to the month of its sale (February 2021). The period during which the property was conserved (6 months) is excluded from this period. In fact, the equipment was used for 14 months (20 - 6). Therefore, the organization must reflect the loss in other expenses for 16 months (30 - 14).

The amount of loss recognized in tax accounting monthly will be 6,250 rubles. (RUB 100,000 / 16 months). The amount of this loss is included in other expenses starting in March 2021.

In practice, situations are possible when, at the time of sale, the OS is in storage for at least 3 months. In this case, some organizations, believing that such property is not recognized as depreciable, consider the sale as a sale of other property and on the basis of paragraphs. 2 p. 1 art. 268 of the Tax Code of the Russian Federation includes the purchase price as expenses.

However, here it should be taken into account that part of the cost of the asset being sold for the period from the moment of its commissioning until its transfer to conservation is taken into account as part of expenses that reduce the income tax base in the form of depreciation amounts.

In this case, the application of the provisions of this norm when selling a fixed asset that is under conservation entails re-accounting for part of the expenses for the acquisition (creation) of this property for tax purposes, which is unacceptable by virtue of clause 5 of Art. 252 of the Tax Code of the Russian Federation, which establishes that amounts reflected in taxpayers’ expenses are not subject to re-inclusion in their expenses (Letter of the Federal Tax Service of Russia dated January 12, 2016 No. SD-4-3 / [email protected] ).

In addition, the illegality of the taxpayer’s application of the provisions of paragraphs. 2 p. 1 art. 268 of the Tax Code of the Russian Federation, when selling fixed assets that are under conservation, arbitration courts indicate (rulings of the Eleventh Arbitration Court of Appeal dated 09.12.2009 in case No. A55-9340/2009, FAS SZO dated 06.25.2007 in case No. A56-51992/2005, FAS PO dated March 30, 2005 in case No. A12-21856/04-C29).

If an increasing factor was applied to an operating system sold at a loss...

According to Art. 259.3 of the Tax Code of the Russian Federation, a special coefficient can be applied to the basic depreciation rate, but not higher than 2 (or 3). Clause 13 of Art. 258 of the Tax Code of the Russian Federation establishes that the application of increasing coefficients to depreciation standards for depreciable property objects entails a corresponding reduction in the SPI of such objects.

Thus, according to the Ministry of Finance, the loss received due to the fact that the residual value of the sold depreciable property exceeds the income from its sale is included in other expenses in equal shares during the period determined as the difference between the reduced SPI of this property (to which the increasing coefficient) and the actual period of its operation until the moment of sale (Letter dated 04.08.2009 No. 03‑03‑06/1/511).