Gratuitous use of property: tax consequences of the parties

Civil legislation makes it possible to use someone else's property both on a paid basis (lease agreement) and without paying money (loan agreement). Parties to a loan agreement can be not only individuals, but also organizations, including commercial ones, due to which it has become quite widespread in business practice. Of course, most often such an agreement is concluded between “their” organizations and (or) individuals. In this regard, the issues of tax consequences of its conclusion for the organization become relevant. Moreover, difficulties with taxes may arise for both parties to the agreement.

Before delving into issues of tax legislation, let us pay attention to the presence of restrictions on concluding a loan agreement. Please keep in mind that:

1) under a loan agreement, only non-consumable things can be transferred, that is, those that retain their properties during use. After all, it is the borrower’s responsibility in accordance with clause 1 of Art. 689 of the Civil Code of the Russian Federation includes the return of exactly the item that was received (and not the same thing). Therefore, under a loan agreement, it is impossible to transfer materials, energy of all types, fuels and lubricants and other consumable items, the return of which after their use by the receiving party will no longer be possible;

2) the right to enter into a loan agreement and transfer a thing for free use belongs to its owner. If you plan to transfer for free use an item that is rented or also received under a loan agreement, you must obtain the owner’s permission for this operation (clause 1 of Article 690 of the Civil Code of the Russian Federation);

3) paragraph 2 of Art. 690 of the Civil Code of the Russian Federation prohibits a commercial organization from transferring property for free use to its founders and participants, as well as to the manager, members of its management or control bodies. Here it is necessary to take into account that this norm does not specify that we are talking only about individuals. This means that an organization cannot transfer its property for free use to other organizations if they are its founders and (or) participants.

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.

Accounting for objects received for free use

The federal accounting standard for public sector organizations “Rent”, applied since 2021, has changed the procedure for reflecting lease accounting items by both the lender and the borrower.

In the article, 1C experts consider in what cases the receipt of property for free use is reflected by the borrower, taking into account the application of the provisions of the “Rent” standard, and how such transactions are registered in the program “1C: Accounting of a public institution 8” edition 1 and edition 2. Cases of non-application are also considered "Rent" standard.

Legal regulation

According to Article 689 of the Civil Code of the Russian Federation, under an agreement for gratuitous use (loan agreement), one party (the lender) undertakes to transfer or transfers an item for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same item in the condition in which it received it, subject to normal wear and tear or in the condition stipulated by the contract. The rules provided for in Article 607 “Rental Objects” of the Civil Code of the Russian Federation apply to the agreement for gratuitous use.

According to paragraph 2 of the Federal Accounting Standard for Public Sector Organizations “Rent”, approved. by order of the Ministry of Finance of Russia dated December 31.

2016 No. 258n, this standard has been applied since 2021 when reflecting in accounting assets, liabilities, facts of economic life, and other accounting objects that arise upon receipt (provision) for temporary possession and use or temporary use of material assets not only under a lease agreement (property lease), as well as under a contract of gratuitous use.

The Lease standard has changed the procedure for recording lease accounting items by both the lender and the borrower.

Previously, objects of movable and immovable property received from the balance holder (owner) of the property for free use were accounted by the borrower on off-balance sheet account 01 “Property received for use” at the cost indicated (determined) by the transferring party (owner), and under the inventory (account) number, assigned to the object by the balance sheet holder (owner) (clauses 333, 334 of the Instructions for the application of the Unified Chart of Accounts, approved by order of the Ministry of Finance of Russia dated December 1, 2010 No. 157n.

According to paragraph 20 of the Lease standard, the accounting object of an operating lease (the right to use an asset) is reflected by the user (lessee) as part of non-financial assets (NFA) as an independent accounting object.

The initial recognition of an operating lease accounting object (the right to use an asset) is made on the date of classification of lease accounting objects in the amount of lease payments for the entire period of use of the property provided for in a lease agreement (property lease) or a gratuitous use agreement with simultaneous reflection of the lease obligations of the user (lessee) (creditor's rent arrears).

In accordance with paragraph 26 of the “Lease” standard, lease accounting items arising under gratuitous use agreements are reflected by the borrower in accounting at their fair value, determined as of the date of classification of lease accounting items using the market price method, as if the right to use the property had been granted for commercial (market) conditions.

Objects of accounting for operating leases on preferential terms (the right to use an asset) by the borrower are reflected taking into account the following provisions of paragraph 27.1 of the “Lease” standard.

Accounting for preferential rent in “1C: Public Institution Accounting 8”

Source: https://buh.ru/articles/documents/80940/

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.

Free use of property: accounting and tax accounting

According to clause

21 Guidelines {amp}lt;1{amp}gt; Fixed assets, depending on the rights the organization has to them, are divided, among other things, into fixed assets owned by right of ownership (including leased, transferred for free use, transferred to trust management). Thus, with a gratuitous transfer, fixed assets continue to be accounted for on the balance sheet of the lender.

In accordance with the Chart of Accounts {amp}lt;2{amp}gt; fixed assets owned by the organization, including those transferred for free use, are accounted for on account 01. Analytical accounting is carried out separately for each fixed asset item.

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For accounting purposes, depreciation is not suspended during the useful life of a fixed asset item.

However, it should be taken into account that the fixed asset object has been withdrawn from economic circulation, and therefore, the amount of depreciation charges for this object cannot be attributed to expenses for ordinary activities in accordance with paragraphs 5, 8 of PBU 10/99 {amp}lt ;3{amp}gt;.

Based on paragraphs 4, 12 of PBU 10/99, the amount of depreciation on such objects is reflected as other non-operating expenses on account 91-2.

Example 1. An organization transferred a production machine under a free use agreement. Its book value is 100,000 rubles, accrued depreciation for accounting purposes amounted to 20,000 rubles. The amount of monthly depreciation deductions is 1000 rubles.

Accounting for the participants of the parties to the free use agreement

The borrower records the accepted property under the loan agreement in an off-balance sheet account. Accounting 001 is maintained for each transferred object.

He must maintain the property received free of charge in proper condition. This means that the borrower, at his own expense, makes repairs and eliminates faults if necessary, unless otherwise specified in the contract.

Expenses related to this are included in expenses for ordinary activities.

When transferring the loan object under an agreement, the lender does not lose ownership of it. The transferred object is still listed on his balance sheet and is accounted for separately, in the proper account. For accounting purposes, the lender continues to charge depreciation on the transferred asset. Accrued depreciation amounts are displayed as other expenses (account 91).

Value added tax

At present, regulatory authorities have not formed an unambiguous position regarding the calculation of VAT in the event of the transfer of property under a loan agreement. Some experts are of the opinion that the tax should be charged, and they give the following arguments. According to clause 1 of clause 1 of Art. 146 of the Tax Code of the Russian Federation, the gratuitous transfer of goods, works, and services on the territory of the Russian Federation is subject to VAT.

Gratuitous use is considered a service for the purpose of calculating VAT, since a service for tax purposes is an activity whose results do not have material expression and are sold and consumed in the process of carrying out this activity (Clause 5 of Article 38 of the Tax Code of the Russian Federation). Thus, the transfer of property under a loan agreement is recognized as subject to VAT. The tax amount should be calculated based on the rules established by Art. 40 Tax Code of the Russian Federation.

Source: https://palez.ru/bezvozmezdno-poluchennoe-imushchestvo-nalogovyy-bukhgalterskiy-uchet-ssudopoluchatelya/

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 by the lender

If the fixed asset is transferred

The accountant of the lending organization needs to remember that if an object from a fixed asset is transferred for free use, then after signing an acceptance certificate with the borrower, the company loses the right to charge depreciation on the transferred fixed asset. Indeed, from this moment on, such an object is no longer used either in the activities of the organization or for generating income, as required by paragraph 1 of Art. 256 and paragraph 1 of Art. 257 Tax Code of the Russian Federation. Moreover, the legislator decided not to limit himself to indirect signs and directly indicated in paragraph 3 of Art. 256 of the Tax Code of the Russian Federation: fixed assets transferred under contracts for free use are excluded from depreciable property. It is necessary to stop accruing depreciation for tax accounting purposes from the 1st day of the month following the one in which the acceptance certificate was signed (clause 2 of Article 322 of the Tax Code of the Russian Federation).

Note that the same rule should also be followed by taxpayers using the simplified tax system if an item of fixed assets is transferred for free use before its cost is taken into account in expenses. After all, paragraph 4 of Art. 346.16 of the Tax Code of the Russian Federation clearly stipulates that the composition of fixed assets for the purposes of the simplified tax system is formed taking into account the rules of Chapter 25 of the Tax Code of the Russian Federation on the composition of depreciable property. Yes and in sub. 4 p. 2 tbsp. 346.17 of the Tax Code of the Russian Federation also directly states that expenses for the acquisition of fixed assets are taken into account only for objects used in carrying out business activities.

It turns out that if a loan agreement is concluded before the cost of the object is taken into account in expenses, then the “simplifier” will lose the right to account for expenses for the entire duration of this agreement. In this case, the rules of paragraph 2 of Art. 322 of the Tax Code of the Russian Federation cannot be applied here, since they relate specifically to the calculation of depreciation, and not to classifying an object as depreciable property. And this object will no longer be used in business activities from the date of transfer. It turns out that the simplifier will lose the right to account for expenses from the month when the acceptance and transfer certificate of fixed assets was signed. This means that in the corresponding reporting (tax) period (quarter), the taxpayer will no longer be able to reduce the tax base by the cost of these expenses. Indeed, under the simplified tax system, expenses for fixed assets are taken into account not monthly, but quarterly on the last day of the reporting (tax) period (subclause 4, clause 2, article 346.17 of the Tax Code of the Russian Federation).

Since the period for accounting for expenses on fixed assets purchased during the simplified tax system period is limited to one year from the date of commissioning (subclause 1 and paragraph 8 of clause 3 of article 346.16 of the Tax Code of the Russian Federation), simplifiers must be very careful when transferring new objects. Otherwise, you may completely lose the right to account for relevant expenses.

Similar caution must be exercised when loaning out fixed assets purchased before the transition to the simplified tax system. After all, regardless of the useful life of such objects for them in paragraph 3 of Art. 346.16 of the Tax Code of the Russian Federation provides a specific algorithm for accounting for expenses broken down by year. Accordingly, if in any of them the property is transferred for free use, it will no longer be possible to take into account the costs in full.

For example, if a fixed asset with a useful life of 3 to 15 years purchased before the transition to the simplified tax system is transferred for free use in the second year after the transition to the simplified tax system, then the simplified person will lose the right to take into account 30% of the cost of this object (subclause 3 p. 3 Article 346.16 of the Tax Code of the Russian Federation). Similar consequences will occur when lending fixed assets with a useful life of over 15 years, since for them the Tax Code of the Russian Federation requires accounting in equal shares during the first 10 years. And if you give such an object on loan for a year or more, then the shares of expenses attributable to these years will not be taken into account - otherwise the principle of equality of shares will be violated.

It will not be possible to “deceive” the Tax Code of the Russian Federation even if the fixed assets are transferred on loan for a period of less than a year. This is due to the fact that clause 3 of Art. 346.16 of the Tax Code of the Russian Federation contains a general requirement that during the tax period, expenses on fixed assets are accepted for reporting periods in equal shares. This means that it will not be possible to “shift” part of the expenses (within the limits established by sub-clause 3 of clause 3 of Article 346.16 of the Tax Code of the Russian Federation) from the reporting period in which the objects were on loan to others, when the property has already returned to the taxpayer, since again the principle of equality of shares will be violated.

In addition to the above circumstance, lenders using the simplified tax system must also take into account the provisions of the last paragraph of paragraph 3 of Art. 346.16 Tax Code of the Russian Federation. This norm establishes the taxpayer’s obligation to recalculate the costs of acquiring fixed assets, taking into account the requirements of Chapter 25 of the Tax Code of the Russian Federation, if objects, the acquisition costs of which were taken into account under the simplified tax system, are sold within three years (10 years for fixed assets with a useful life of more than 15 years) or transferred to third parties.

Is the transfer of a fixed asset under a loan agreement subject to this rule? We did not find a direct answer to this question either in the explanations of the regulatory authorities or in judicial practice. But an indirect answer was revealed in the explanations of the Ministry of Finance. Thus, in letter dated 04/06/2012 No. 03-11-06/2/51, dedicated to the recalculation of costs for the acquisition of fixed assets when transferring an object in the order of reorganization, department specialists provide a general rule: “clauses. 3 p. 3 art. 346.16 of the Code establishes the procedure for recalculating the tax base for taxes paid in connection with the application of the simplified taxation system in the event of disposal of fixed assets from the taxpayer’s ownership.”

According to the loan agreement, by virtue of the provisions of paragraph 1 of Art. 689 of the Civil Code of the Russian Federation, the property does not leave the lender’s right of ownership - he remains its owner and can terminate the contract at any time, receiving the property back (Article 699 of the Civil Code of the Russian Federation). Consequently, there are no grounds for recalculating expenses when transferring a fixed asset for temporary use.

If other property is transferred

In a situation where the subject of the loan agreement is property that is not related to fixed assets, all of the above problems of the lender will not be affected. However, another problem arises, relevant both for the simplified taxation system and for the general taxation system: will it be necessary to restore the costs of purchasing an item transferred for free use? The basis for such fears is clause 16 of Art. 270 of the Tax Code of the Russian Federation, which does not allow taking into account expenses associated with gratuitously transferred property and property rights.

But even here it must be taken into account that under the loan agreement it is not the property itself that is transferred free of charge, but only the right to use it. That is, we are talking about the transfer of property rights. This means that the provisions of paragraph 16 of Art. 270 of the Tax Code of the Russian Federation in this case should be applied only in relation to gratuitously transferred property rights. This means that it is impossible to take into account, firstly, the value of the transferred property right itself (and in this case this value does not exist, since the use is gratuitous). And, secondly, the costs associated with the transfer of this property right (that is, for example, the costs of delivering the item to the borrower).

As for the costs of purchasing the subject of the loan agreement, grounds for their restoration can arise only in one case: when the property was specifically acquired for transfer for free use and has not been used for a day by the organization itself in activities aimed at generating income. In this situation, the costs of purchasing the loan item will not meet the criteria of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation, which makes it impossible to take them into account both under the general tax regime and under the “simplified” tax regime (clause 49, article 270, clause 2, article 346.16 of the Tax Code of the Russian Federation).

Property taxes

Much more controversial is the issue of the possibility of taking into account in expenses the amounts of taxes that the lender continues to pay for objects transferred for temporary free use. In particular, we are talking about property tax, land and transport taxes.

On the one hand, the provisions of paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, as we have already found out, does not prevent the accounting of such costs. After all, they are in no way connected with the very fact of transfer of the property right to use the relevant objects. On the contrary, these taxes must be calculated and paid regardless of whether the company uses these facilities or not. This means that the fact of concluding or not concluding a loan agreement in relation to them does not in any way affect the obligation to pay property taxes. And, therefore, such costs may well be taken into account by the lender, which is also confirmed by the courts (resolution of the Federal Antimonopoly Service of the Central District dated December 14, 2007 in case No. A64-1347/07-22).

The same position is stated in the letter of the Ministry of Finance of Russia dated July 19, 2006 No. 03-03-04/1/589. It states that the lender can take into account the amount of property tax on objects transferred for free use as expenses.

VAT

There are also controversial issues regarding VAT when transferring property for free use. On the one hand, it is obvious that, since the ownership of the property remains with the lender, it is impossible to talk about the sale and calculation of VAT on the object “sale of property” in this case (clause 1 of Article 39 of the Tax Code of the Russian Federation).

In our opinion, there are also no grounds for calculating VAT on the object “transfer of property rights” in this situation. Although such an object of taxation is provided for in sub-clause. 1 clause 1 art. 146 of the Tax Code of the Russian Federation, and the legislator did not stipulate that the transfer must necessarily be paid; the rules for determining the tax base for this type of property right are not defined by Chapter 21 of the Tax Code of the Russian Federation. The fact is that the procedure for taxing VAT on property rights is discussed in Art. 155 Tax Code of the Russian Federation. And it contains rules only for property rights on the assignment of monetary claims; transfer of property rights to residential buildings and residential premises, shares in them, as well as garages and parking spaces; transfer of property rights associated with the conclusion of an agreement and lease rights. It turns out that the transfer of any other property rights is not subject to VAT, due to the fact that the essential elements of taxation, namely the tax base (clause 6 of Article 3, clause 1 of Article 17 of the Tax Code of the Russian Federation) have not been determined.

But the Russian Ministry of Finance looks at this situation from a different angle. In his opinion, the transfer of property for free use, by analogy with rent, constitutes a service (see letter dated 02/01/2013 No. 03-03-06/1/2069). This means that when it is sold (including free of charge), VAT must arise on the object “sale of services” (letters dated July 29, 2011 No. 03-07-11/204, dated August 6, 2012 No. 03-07-08/237 and dated January 17, 2013 No. 03-07-08/04).

However, this logic has several very significant flaws. Firstly, the transfer of the right to use property is not a service - there is no activity here, the results of which, without having material expression, are sold and consumed directly in the process of this activity. But this is exactly how the service is defined in clause 5 of Art. 38 Tax Code of the Russian Federation. And analogies with rent in this case are not justified, since rent is specifically and directly equated by the legislator to services specifically for VAT purposes (subclause 1, clause 1, article 148, clause 9 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated May 30, 2014 No. 33). In relation to a loan, Chapter 21 of the Tax Code of the Russian Federation does not contain such a clause.

Secondly, even if we agree that we are talking about a service, the mechanism for calculating the tax base for VAT in this case is not legally defined. The regulatory authorities propose to use the rental price of similar property for these purposes. But rent is a separate agreement, which is regulated by other provisions of the Civil Code. And there are many differences between a loan and a lease. These are not similar transactions at all. Therefore, it is incorrect to determine the cost of one of them by the cost of the other. This approach contradicts the rules of paragraph 6 of Art. 3 of the Tax Code of the Russian Federation, according to which, when establishing taxes, all elements of taxation must be determined. Acts of legislation on taxes and fees must be formulated in such a way that everyone knows exactly what taxes (fees, insurance premiums), when and in what order he must pay.

Unfortunately, a unified judicial practice on this issue has not developed. Some courts agree with the arguments of the tax authorities, recognizing the loan as the sale of services and determining the tax base based on the cost of renting similar property (see, for example, the decisions of the Federal Antimonopoly Service of the Central District dated October 22, 2013 in case No. A09-7059/2012, FAS East Siberian district dated November 20, 2012 in case No. A78-4990/2011, FAS Volga-Vyatka District dated February 18, 2008 in case No. A31-567/2007-15), while in other cases the courts side with the taxpayer, indicating that VAT the lender does not have to pay (see decisions of the FAS of the West Siberian District dated July 13, 2011 in case No. A81-4401/2010, FAS Moscow District dated June 29, 2006 No. KA-A41/5591-06 and FAS Volga District dated March 6, 2007 to case No. A65-13556/2006).

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.

Free use of property (rent): What tax risks arise? How to avoid them?

Greetings to visitors to the Fiscal Blog! Today we will consider tax risks when transferring (receiving) property for use (rent) free of charge.

Recently at the Tax Forum – Fiscals.

Ru" in the topic "Free rent" discussed the issue of the tax risks of the tenant in the event that he received property for free use from an interdependent organization.

I found this question interesting, so I bring to your attention a more detailed consideration of the taxation procedure when transferring property for free use.

Can rent be free of charge?

Before starting to consider the issue of taxation of such transactions, let me explain the civil legal side of the gratuitous use of property.

Article 606 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) determines that under a lease (property lease) agreement, the lessor (lessor) undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or for temporary use.

Article 614 of the Civil Code of the Russian Federation determines that the tenant is obliged to promptly pay fees for the use of property (rent).

The procedure, conditions and terms for paying rent are determined by the lease agreement. In the event that they are not specified in the agreement, it is considered that the procedure, conditions and terms usually applied when leasing similar property under comparable circumstances are established.

Thus, from the provisions of Art. Art. 606, 614 of the Civil Code of the Russian Federation it follows that the lease agreement requires rent.

In the absence of rent, this agreement must be qualified as a contract of gratuitous use. So according to paragraph 1 of Art.

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

The mere fact that you call an agreement for the gratuitous use of property a lease agreement, and the parties to the agreement are the tenant and the lessor, and not the borrower and the lender, does not represent any risks. This is more a question of legal literacy in drawing up a contract.

Tax risks

When transferring (receiving) property for temporary free use, the parties to the transaction face the following risks:

• the borrower will be calculated non-operating income based on market rental rates for identical (similar) property objects;
• the lender will be charged additional VAT, also calculated based on market rental rates for identical (similar) property;
• the borrower will be denied the right to calculate depreciation on property transferred for temporary free use;
• the borrower will not be able to take into account the costs of maintaining and maintaining the property as income tax expenses.

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.

Donation is the prerogative of the non-profit sector

First of all, it can be noted that an agreement on the gratuitous transfer of property as part of a gift implies that the owner of the property directly transfers to the recipient the thing, the property right associated with it, or some kind of concession (for example, forgiveness of a debt). In turn, when drawing up an agreement, the subject of which is a donation, the basis of the relevant transaction can only be a thing or a property right to it. Providing concessions or other preferences within the framework of such a legal category as a donation, as lawyers note, cannot be carried out.

That is, in cases where state or municipal property is transferred, the credit aspect between the subjects of legal relations (which, theoretically, can be traced in the format of budget loans) should not be affected.

Also, differences can be traced in such a nuance as the status of the recipient of property within the framework of a gratuitous transfer. As a rule, when concluding a donation agreement, the circle of persons in whose favor the assets are transferred is much narrower than in the case of a gift. The main subjects of legal relations within the framework of donations, as the party receiving the property, are recognized, in accordance with the law, as non-profit organizations. Including state institutions, in whose favor state property can, as an option, be transferred. Thus, in general, a donation cannot be made to a commercial structure.

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.

When transferring property, there is a VAT benefit

It is possible not to pay tax in cases where the benefit under Art. 149 of the Tax Code of the Russian Federation, which exempts this operation from VAT.

Thus, the distribution of advertising magazines, booklets, leaflets and other things is exempt from VAT if no more than 100 rubles were spent on the creation or purchase of a copy of this assortment. including VAT (subclause 25, clause 3, article 149 of the Tax Code of the Russian Federation).

There is no need to pay VAT when transferring valuables free of charge for charitable purposes (subclause 12, clause 3, article 149 of the Tax Code of the Russian Federation). The exception is the transfer of excisable goods.

Charity in the legislation is considered as an activity for the disinterested (free) transfer of material assets or other benefits to legal entities or individuals on a voluntary basis (Article 1 of the Law “On Charitable Activities...” dated 08/11/1995 No. 135-FZ. But this benefit is possible only if compliance with the following conditions:

• the assistance provided must strictly correspond to the charitable purposes specified in the list of paragraph 1 of Art. 2 Law No. 135-FZ;
• recipients of material assets, as well as gratuitous assistance in the form of other benefits, can only be non-profit organizations or individuals;
• the gratuitous transfer of valuables must be documented (letter from the Ministry of Finance of Russia dated October 26, 2011 No. 03-07-07/66, Federal Tax Service of the Russian Federation for Moscow dated December 2, 2009 No. 16-15/126825):

• an agreement on the agreement of the parties to transfer free of charge;
• copies of documents confirming the acceptance of valuables for registration by the recipient of gratuitous assistance;
• acts or other documents confirming the intended use of the transferred values.

When a charitable transfer of material assets occurs, the transaction is considered taxable, but exempt from tax. The obligation to draw up an invoice for transactions exempt from VAT from January 1, 2014 on clause 3 of Art. 3 of the Law “On Amendments...” dated December 28, 2013 No. 420-FZ). Therefore, when transferring valuables in the form of charitable assistance, an invoice need not be drawn up.

On the application of Art. 149 of the Tax Code of the Russian Federation, read more in this section of our website.

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).

Restrictions on donation

The gratuitous transfer of valuables or property rights is essentially a donation (Clause 1, Article 572 of the Civil Code of the Russian Federation).
The transferred objects can be:

• fixed assets;
• goods;
• in cash;
• finished products;
• intangible assets;
• materials;
• securities;
• property claims (rights), for example, this may be the right to use a land plot disinterestedly transferred by a commercial organization to a non-profit institution or a disinterested assignment by a commercial enterprise of the right to demand payment of the debt of its debtor to a non-profit organization.

For commercial enterprises, an acceptable limit for the value of gratuitously transferred valuables has been established - up to 3 thousand rubles. This restriction does not apply to transactions with individuals and public organizations, charitable and other foundations, budgetary institutions, consumer cooperatives, religious and other non-profit organizations. In addition, it is possible to transfer property free of charge to commercial organizations-founders, but provided that such operations are stipulated in the charter. Donation of valuables between commercial organizations in the amount of more than 3 thousand rubles. is considered a violation of the requirements of the law, and such a transaction may be declared invalid (clause 1 of Article 168, subclause 4 of clause 1 of Article 575 of the Civil Code of the Russian Federation).

When donating valuables worth over 3 thousand rubles. a citizen or non-profit organization should draw up a written gift agreement (Articles 574 and 575 of the Civil Code of the Russian Federation).

The transaction of gratuitous transfer of valuables is confirmed by a delivery note or an acceptance certificate.

For information about the form used to draw up the consignment note, read the article “Unified form TORG-12 - form and sample.”

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.

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.

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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.

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.

Contract structure

What should a contract for the gratuitous transfer of property look like? A sample of its structure might look like this. Let's assume that we are talking about the transfer of property as part of a donation. In this case, the corresponding type of contract will be referred to as a “Donation Agreement”.

The preamble to the document is standard: the place of its signing, the date, as well as the names of the organizations participating in the procedure for the gratuitous transfer of property.

The subject of the agreement can be reflected in the following wording: “So-and-so organization accepts from the Donor such-and-such property belonging to him on such-and-such a right.” It can be noted that the donee accepts the property with gratitude, and also undertakes to use it for generally beneficial purposes.

Next, you can determine the conditions for using the property. That is, we write a wording that reflects that the donee assumes the obligation to use the assets for such and such a purpose. It is possible to prescribe a condition under which the recipient of the property must agree in writing with the donor on new conditions for the use of the received resources if the fulfillment of the original conditions is complicated.

The terms of the agreement can also include a provision according to which the organization in whose favor the property is transferred may at any time refuse to accept it until it is directly available and until the relevant assets are transferred. In this case, as a rule, it is indicated that the organization refuses the donation in writing. As soon as the Donor receives the corresponding document, the contract is considered terminated.

The next clause, which is usually present in contracts of this type, is the obligation of the donee to keep the necessary separate records of transactions reflecting the use of the received property.

This is the specificity that characterizes a typical contract for the gratuitous transfer of property, a sample structure of which we have examined. Otherwise, the corresponding type of agreement is quite similar to other types of civil contracts - the details of the parties are prescribed, language about force majeure and dispute resolution is included, and signatures are placed.