How can a licensor account for remuneration under a license agreement?

Calculations under license agreements

In particular, license payments may be transferred to:

• one-time fixed amounts (lump sum payment);

• periodic fixed or percentage payments (royalties);

• combined (mixed) payments (combination of royalty and lump-sum payment).

Such forms of remuneration are provided for by law, for example, for the transfer of non-exclusive rights to copyrighted works: creative and scientific works, computer programs (clause 4 of Article 1286 of the Civil Code of the Russian Federation). However, by analogy, these forms can also be applied to licensing agreements for other types of intellectual property (Article 6 and paragraph 1 of Article 424 of the Civil Code of the Russian Federation).

What is needed to register a license agreement

Rospatent is responsible for accepting agreements confirming the transfer and use of licensed intellectual property rights. For state registration

agreement, it is necessary to form and send an application, to which are attached:

You agree to the foregoing and warrant that you are not located in, or a national or resident of, any such prohibited countries listed on such lists. In addition, there is a restriction on using the Software for the design or development of nuclear, chemical or biological weapons or missile technology or for terrorist activities without the prior consent of the United States Government.

You are responsible for compliance with all applicable laws, regulations and codes of practice when using the Software and any results obtained from using the Software. This Agreement will be binding upon and will inure to the benefit of each party's permitted successors and assigns. Any attempted assignment or assignment of this Agreement without such written consent will be null and void. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision shall be limited to the minimum necessary to cause this Agreement to remain in force and effect.

• Application on behalf of the copyright holder, his legal representative, successor;
• License agreement in two original copies;
• Notarized power of attorney, if a representative of the copyright holder applies to Rospatent to transfer licensing rights;
• A receipt confirming payment of the state fee in the prescribed amount.

Documents accepted against signature are checked by Rospatent employees for compliance with the norms of current legislation. Within the established time frame, the applicant receives a notification containing information that the agreement has passed state registration. The publication period in the official bulletin usually does not exceed 1 month.

Applicable law, jurisdiction and territorial jurisdiction

In such event, jurisdiction and venue with respect to the activity related to the subject matter shall be brought to the courts of the State of California and the federal courts of the United States located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.
If you acquired this software in Canada, this Agreement is governed by the laws of Ontario, Canada, excluding its conflict of law provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods. In such case, jurisdiction and venue for its activities shall be governed by the District Courts of York, Ontario, and both are hereby subject to the personal jurisdiction of such courts.

Important:

if the package of documents sent to Rospatent contains errors or inaccuracies contained in the essential terms of the contract, the applicant receives them back. In order to bring the application into compliance, the initiator has 2 months. This period is quite enough not to receive a refusal and the right to a refund of the state fee.

If you obtain this Software in the European Union, this Agreement is governed by the laws of the Netherlands, excluding its conflicting provisions and notwithstanding the United Nations Convention on Contracts for the International Sale of Goods. In this case, jurisdiction and territorial jurisdiction of the activity related to its subject matter shall be exercised by the courts of Amsterdam, the Netherlands, and both parties hereby submit to the personal jurisdiction of such courts.

Any notices or reports relating to this Agreement must be in writing. When contacted by the User, such notice or report is sent to the address specified by the User when placing the order. No addition, alteration or modification to this Agreement shall be binding unless made in writing by an authorized representative of each party to this Agreement. No release will be implied by performance or non-performance of this Agreement, and no release will be effective unless made in writing and signed by an authorized representative on behalf of the breaching party.

Documenting

Each business transaction must be documented with a primary accounting document (Clause 1, Article 9 of the Law of December 6, 2011 No. 402-FZ). Any documents drawn up in accordance with legal requirements can confirm obligations and settlements under a license agreement. Including the agreement itself, the schedule of license payments, the act of acceptance and transfer of non-exclusive rights, the licensee’s report, the invoice for payment, etc. The main thing is that they contain all the mandatory details provided for in paragraph 2 of Article 9 of the Law of December 6, 2011 No. 402-FZ. However, the legislation does not oblige the licensor to issue certificates of provision of services for the transfer of non-exclusive rights to intellectual property.

Accounting: other expenses

When obtaining intellectual property rights, the licensee may incur additional costs associated with concluding a license agreement (if the agreement does not assign this responsibility to the licensor). These include, in particular:

• expenses for notarization of documents;

• expenses for paying patent, state and other fees for registering a license agreement or amending it.

Situation: who bears the cost of paying the fee (state, patent) for registration of a license agreement: the licensor or the licensee?

The parties must agree on this issue among themselves, for example, when concluding a license agreement. The legislation does not assign this obligation to any one party to the transaction for the transfer (receipt) of non-exclusive rights to intellectual property.

Consequently, both the licensor and the licensee can register a license agreement.

Accordingly, the obligation to pay the fee may be assigned to the licensor or licensee, since this fee is paid by the organization that applied for legally significant actions.

This conclusion follows from Article 333.17 of the Tax Code of the Russian Federation and paragraph 4 of the Regulations approved by Decree of the Government of the Russian Federation of December 10, 2008 No. 941.

Such expenses apply to the entire term of the contract (for example, duties), so they need to be distributed. Reflect them as part of deferred expenses on account 97 “Deferred expenses” (Instructions for the chart of accounts and clause 18 of PBU 10/99). Do the following wiring:

Debit 97 Credit 76 (60, 70, 68, 69...) – reflected in deferred expenses are the costs associated with obtaining the right to use intellectual property.

Accounting

In accounting, reflect license payments in income on a monthly basis. Recognize income regardless of whether the licensee has made a payment or not. This procedure follows from paragraphs 12 and 15 of PBU 9/99.

In accounting accounts, reflect license payments depending on:

• classification of this income (income from ordinary activities or other income);

• type and frequency of payments (one-time (lump sum) payment, quarterly or monthly royalty, etc.).

If the transfer of non-exclusive rights to intellectual property is a separate type of activity of the organization, then consider license payments as part of income from ordinary activities (clause 5 of PBU 9/99). At the same time, make the following entries in accounting:

Debit 62 (76) Credit 90-1 – royalties accrued.

If the transfer of non-exclusive rights is not a separate type of activity of the organization, then include license payments as part of other income (clause 7 of PBU 9/99). In this case, make an entry in your accounting:

Debit 62 (76) Credit 91-1 – royalties accrued.

This order follows from the Instructions for the chart of accounts (accounts 62, 76, 90, 91).

Situation: how to determine for accounting purposes whether the transfer of non-exclusive rights to intellectual property under a license agreement is a separate type of activity of the organization or is it a one-time operation?

In accounting, an organization has the right to independently develop a procedure for classifying income in order to recognize it as income from ordinary activities or other income (including under a license agreement).

In this matter, one must proceed from the nature of the organization’s activities, the type of income and the conditions for their receipt (for example, whether the incoming license payments are a constant or periodic income of the organization). This is stated in paragraph 4 of PBU 9/99.

The organization must consolidate its choice in its accounting policy for accounting purposes (clause 7 of PBU 1/2008).

Situation: how to recognize income in accounting in the amount of periodic license payments (royalties), if their size is set as a percentage of the licensee’s performance indicators taken from its report? The licensee did not submit a report and did not transfer license payments on time.

Recognize income in the form of license fees only after receiving a report from the licensee or other documents that can be used to determine the amount of remuneration (for example, a payment order).

In accounting, one of the necessary conditions for recognizing income (including from the transfer of non-exclusive rights to intellectual property) is the condition that the amount of income can be determined (clauses 12 and 15 of PBU 9/99).

Income from the operation of granting the right to use intellectual property is the licensor's remuneration in the form of license payments (clause 5 of Article 1235 of the Civil Code of the Russian Federation).

License payments can be transferred to:

• one-time fixed amounts (lump sum payment);

• periodic fixed or percentage payments (royalties);

• combined (mixed) payments (combination of royalty and lump-sum payment).

Such forms of remuneration are provided for by law, for example, for the transfer of non-exclusive rights to copyrighted works: creative and scientific works, computer programs (clause 4 of Article 1286 of the Civil Code of the Russian Federation). However, by analogy, these forms can also be applied to licensing agreements for other types of intellectual property (Article 6 and paragraph 1 of Article 424 of the Civil Code of the Russian Federation).

In the case where the license agreement establishes the licensor’s remuneration in the form of percentage deductions (royalties) from any indicators of the licensee’s activities (sales revenue, production costs, production volume, etc.), the amount of income can be reliably determined only after All data necessary for the calculation will be provided. Typically this will be done using the licensee's report.

If the data necessary for calculating income is not available, then it is impossible to recognize the income as received and reflect (accrue) it on the accounting accounts. Since the amount of revenue (other income) cannot be reliably determined (clauses 12 and 15 of PBU 9/99). Also, in this case, the condition of documentary confirmation of the transaction for the receipt (recognition) of income cannot be fulfilled (clause 1 of Article 9 of the Law of December 6, 2011 No. 402-FZ). In this case, there is no report from the licensee on the use of intellectual property. It is impossible to determine remuneration on the basis of other documents (for example, a license agreement, payment documents).

It is impossible to recognize income from the transfer of non-exclusive rights to intellectual property in the amount in which, in comparable circumstances, the organization usually determines similar income in this situation. This rule applies only for one case. If the contract does not provide for a price for the provision of these assets for use and it cannot be established based on the terms of the contract. This procedure follows from paragraph 6.1 of PBU 9/99.

In this case, the contract price is considered determined. The fact that the specific amount of remuneration cannot be calculated without the necessary data provided by the licensee does not matter, since the procedure for its calculation is determined. This follows from paragraph 5 of Article 1235 of the Civil Code of the Russian Federation. Therefore, it is impossible to apply the provisions of paragraph 6.1 of PBU 9/99 on determining the income of an organization by calculation.

If necessary, after the report is received and income is determined, adjust the accounting data for the corresponding reporting period. For more information about this, see How to correct errors in accounting and financial reporting.

For organizations that have the right to conduct accounting in a simplified form, a special procedure for accounting for income is provided (Parts 4, 5, Article 6 of the Law of December 6, 2011 No. 402-FZ).

Advice: to avoid claims from regulatory agencies, take measures to obtain the necessary documents from the licensee (send a telephone message, written request, etc.). Also, in the license agreement, provide for the procedure to be followed in the event that the licensee does not submit a report on the use of intellectual activity on time.

For example, in addition to penalties for violating the terms of the contract, it can provide for the amount of a guaranteed payment that the licensee must pay if the report is not sent on time. As well as the procedure for resolving disputes and conducting mutual settlements in the current situation.

The license agreement may provide for advance payments.

Reflect the received advance payment on a separate subaccount to account 62:

Debit 51 Credit 62 subaccount “Settlements for advances received” - an advance was received from the licensee.

After the period for which the prepayment amount has been received has arrived, make the following entries in your accounting:

Debit 62 (76) Credit 90-1 (91-1) – royalties accrued;

Debit 62 subaccount “Settlements on advances received” Credit 62 (76) – part of the advance received from the licensee is credited.

This accounting procedure is based on the provisions of paragraph 3 of PBU 9/99, Instructions for the chart of accounts.

Depending on the type, license payments may relate to several reporting periods (deferred income). In this case, they must be distributed and taken into account in the reporting period to which this or that amount relates. This procedure is established by paragraphs 12 and 15 of PBU 9/99. For example, a one-time (lump sum) payment applies to the entire duration of the license agreement. Therefore, such income must be recognized evenly over the specified period. For more information on how to determine the validity period of an agreement, see How a licensor can account for the transfer of rights under a license agreement.

The procedure for distributing income related to several reporting periods is fixed in the accounting policy for accounting purposes (clause 7 of PBU 1/2008).

Record license payments relating to several reporting periods as follows:

Debit 62 (76) Credit 98 – license payments are reflected as part of deferred income.

After the period to which one or another part of the income relates, make the following entry:

Debit 98 Credit 90-1 (91-1) – revenue (other income) in the form of license payments is recognized in the part related to the reporting period.

This follows from the Instructions for the chart of accounts.

An example of how license payments are reflected in the licensor's accounting. Transfer of rights to use intellectual property is a one-time operation for an organization

On September 13, Torgovaya LLC (licensor) entered into an agreement with Alpha LLC (licensee) for the right to use the Hermes trademark. The contract is valid for three years (1096 days) from the date of its state registration.

The agreement was registered on October 15.

The license agreement provides for a one-time remuneration to the licensor in the form of a one-time (lump sum) payment in the amount of 590,000 rubles. (including VAT - 90,000 rubles), which is transferred to the licensor within five days from the date of registration of the agreement. The provision of non-exclusive rights to intellectual property is not the main activity of Hermes.

On October 20, Alpha transferred 590,000 rubles to Hermes.

The Hermes accounting policy for accounting purposes provides for an even distribution of future income based on the number of calendar days falling on each month of the license agreement term.

The Hermes accountant made the following entries in the accounting.

The 20th of October:

Debit 76 Credit 98 – 590,000 rub. – a one-time license (lump sum) payment is reflected as part of deferred income;

Debit 98 Credit 68 “VAT calculations” – 90,000 rubles. – VAT is charged;

Debit 51 Credit 76 – 590,000 rub. – a one-time license payment was received from the licensee.

October 31:

Debit 98 Credit 91-1 – 7755 rub. (RUB 500,000: 1096 days × 17 days) – income in the form of a license fee is recognized in the part relating to October.

Accounting: royalties

In accounting, reflect license fees as expenses on a monthly basis. Recognize expenses regardless of whether payment is transferred or not. This procedure follows from paragraphs 16 and 18 of PBU 10/99.

Reflect royalties as follows:

• deferred expenses, if the organization pays a fixed amount at a time for the right to use an object of intellectual property;

• current expenses if the organization makes periodic payments for the right to use the intellectual property.

This procedure follows from paragraph 39 of PBU 14/2007 and paragraph 18 of PBU 10/99.

At the same time, depending on the purposes of using intellectual property, reflect:

• or expenses for ordinary activities, if the object is used in business activities (for example, a trademark is applied to products sold) (clause 5 of PBU 10/99);

• or other expenses if the object is used for non-production purposes (for example, a work of authorship is published in a corporate magazine) (clause 11 of PBU 10/99).

Make the following entries in accounting:

Debit 97 Credit 76 – a fixed one-time payment for the right to use an object of intellectual property is taken into account;

Debit (20, 23, 25, 26, 44, 91-2...) Credit 76 – periodic payments for the right to use an object of intellectual property are taken into account;

Debit 19 Credit 76 – VAT is reflected on expenses associated with the use of intellectual property (for a list of intellectual property, license payments for the right to use which are subject to VAT, see the table).

This procedure follows from the Instructions for the chart of accounts.

License payments accounted for as deferred expenses should begin to be written off immediately after the start of use of the facility. The organization establishes the procedure for writing off expenses independently. For example, an organization can write off a one-time one-time payment evenly over the period for which the license agreement is concluded. Make such a decision by order of the manager. Fix the chosen option for writing off future expenses in the accounting policy for accounting purposes (clauses 7 and 8 of PBU 1/2008, letter of the Ministry of Finance of Russia dated January 12, 2012 No. 07-02-06/5). In this case, do the wiring:

Debit 20 (23, 25, 26, 44, 91-2...) Credit 97 – part of the fixed one-time payment for the right to use an object of intellectual property is written off as expenses.

This procedure follows from the Instructions for the chart of accounts.

BASIC

Tax accounting of income in the form of license payments depends on:

• classification of this income (income from the main activity or non-operating income);

• the method by which the organization calculates income tax (cash or accrual method). This follows from paragraph 1 of Article 248, Article 271 and paragraph 2 of Article 273 of the Tax Code of the Russian Federation.

Situation: when calculating income tax, which income should include license payments for the transfer of non-exclusive rights to intellectual property - non-sales income or sales revenue?

Income from the transfer of non-exclusive rights to intellectual property under a license agreement (license payments) is non-sales income if it does not relate to sales income (clause 5 of Article 250 of the Tax Code of the Russian Federation).

The Tax Code of the Russian Federation does not establish a criterion for classifying license payments as sales revenue. However, it contains a condition for including costs associated with the transfer of non-exclusive rights in the costs of sales. Thus, if the licensor enters into licensing agreements on a systematic basis, the costs of such activities are associated with implementation (subclause 1, clause 1, article 265 of the Tax Code of the Russian Federation). Accordingly, income from it must be recognized as part of sales revenue.

Use the concept of systematicity in the meaning used in paragraph 3 of Article 120 of the Tax Code of the Russian Federation - two or more times during a calendar year.

For example, such an approach in relation to rent to the application of the concept of “systematicity” was enshrined in paragraph 2 of section 4 of the Methodological recommendations for the application of Chapter 25 of the Tax Code of the Russian Federation (approved by order of the Ministry of Taxes and Taxes of Russia dated December 20, 2002 No. BG-3-02/729) . At the moment, this document has lost force (order of the Federal Tax Service of Russia dated April 21, 2005 No. SAE-3-02/173). However, the proposed interpretation of the concept of “systematicity” remains relevant, which is confirmed by representatives of the tax department (see, for example, letter of the Department of Tax Administration of Russia for the Moscow Region dated March 25, 2004 No. 04-23/03451) and arbitration courts (see, for example, Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated October 26, 2005 No. A28-4710/2005-34/29).

Although this rule is used to classify rental income, it can be extended to include royalties. Since for both types of agreements (lease agreement and license agreement) the basis is the transfer of the right to use (Article 606, paragraph 1 of Article 1235 of the Civil Code of the Russian Federation).

What types of license agreements are there?

You can familiarize yourself with the classification of methods for obtaining rights to use intellectual property in Article 1236 of the Civil Code.

The standard provides the following types of licensing contracts:

Except as expressly set forth in this Agreement, once paid, any fees are non-refundable. The user is responsible for all taxes, deductions, duties and fees resulting from the order. This Agreement will be effective on the Effective Date and will expire at such time as all licenses and subscriptions hereunder will expire in accordance with their own terms. You may also terminate this Agreement at any time by permanently uninstalling all Software.

Conditions for submitting an application after the expiration of the contract

Termination shall not be the exclusive remedy, and any exercise by either party of any remedies under this Agreement shall be without prejudice to any other remedies such party may have under this Agreement, whether at law or otherwise. way.

Technical support and maintenance

Liability for damage. Limit countermeasures and damage. The parties agree that the limitations set forth in this Section 10 will remain valid and apply even if the limited remedies set forth in this Agreement are deemed to have failed of their essential purpose.

• Exclusive, non-exclusive rights and sublicense. They differ in the amount of benefits that are purchased under the contract. A full license or concession implies the transition of the licensee to a monopoly regime and during the entire term of the license agreement he can use the entire list of goods and services. A subconcession can be classified as an exclusive right when the exploitation of an intellectual product by third parties is carried out under the main agreement;
• Patent and non-patent agreements. In the second case, rights that have not yet been officially registered are transferred to the user, without affiliation with the publisher;
• An open license confirms that the licensor has put its product up for public auction. This type of agreement is used if it is impossible to sell or replicate your work due to insufficient funds.

Important:

With an open license, changes to the license agreement, as well as its revocation, are not allowed.

Export Compliance, Legality

Compliance with export regulations

You acknowledge that the Software may be subject to export restrictions by the United States government and import restrictions imposed by certain jurisdictions. User does not and will not allow any third party to remove or export from the United States or authorize the export or re-export of any portion of the Software or any direct product into any embargoed country or supporting terrorist activities for those placed under The U.S. Treasury Department table of order denials or maintains a U.S. Department of Commerce list of designated orders for persons in any country in which such export or reexport is restricted or prohibited or for which the United States Government or any authority requires export authorization or other approval in at the time of export or re-export without prior approval or approval, otherwise in violation of export or import restrictions, regulations or rules, by the United States Government or any foreign agency or agency.

• Transactions involving the state provide for compulsory (the patent holder is not active, the right is sold to avoid negative dissemination) and mandatory (in case of a conflict of interest with municipal authorities or constituent entities of the Russian Federation) licenses;
• The accompanying right of use is usually confirmed by a single agreement for distribution for commercial purposes;
• The terms of a cross-licensing agreement are negotiated between organizations that are forced to work closely together. For example, exchange of complementary technologies.

Moment of revenue recognition

If an organization uses the cash method, then income from the transfer of non-exclusive rights to intellectual property must be reflected in the reporting period in which license payments are actually received (clause 2 of Article 273 of the Tax Code of the Russian Federation). They should be taken into account as income from an ordinary type of activity (Article 249 of the Tax Code of the Russian Federation) or non-operating income (clause 5 of Article 250 of the Tax Code of the Russian Federation). If an advance is received on account of license payments, then its amount is also attributed to the increase in taxable profit (subclause 1, clause 1, article 251 of the Tax Code of the Russian Federation, clause 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98).

If the organization uses the accrual method and the transfer of non-exclusive rights is one of the main activities of the organization, then recognize license payments on the date of sale of this service. In this case, the presence or absence of actual receipt of money at the time of recognition of income does not affect. In particular, the received advance does not need to be included in tax revenues (subclause 1, clause 1, article 251 of the Tax Code of the Russian Federation).

This procedure is established by paragraph 3 of Article 271 of the Tax Code of the Russian Federation.

Situation: at what point, under the accrual method, should the amount of the royalty be recognized in income? The organization accounts for such receipts as sales revenue.

When calculating income tax, take into account received license payments based on the terms of the agreement:

• for periodic payments - on the settlement date;

• in case of a one-time payment - evenly throughout the term of the contract.

For tax purposes, the transfer of the right to use intellectual property (non-exclusive right) under a license agreement is a service. Since a service for tax purposes is recognized as an activity whose results do not have material expression (clause 5 of Article 38 of the Tax Code of the Russian Federation).

If an organization uses the accrual method, then revenue from the main activities of the organization must be recognized on the date of sale of goods, works, and services.

As a general rule, the date of provision of services is the day of signing the monthly act. This conclusion allows us to draw paragraph 3 of Article 271 of the Tax Code of the Russian Federation.

However, the law does not oblige the parties to the license agreement to draw up this document. If the licensor and licensee do not draw up a monthly act on the provision of services for the transfer of non-exclusive rights, when determining the date of recognition of income, be guided by such arguments.

Under the license agreement, the licensor provides services continuously (daily) throughout the entire term of the agreement (Article 1235 of the Civil Code of the Russian Federation). Under the accrual method, income is recognized in the reporting (tax) period in which it occurred (Clause 1, Article 271 of the Tax Code of the Russian Federation). Thus, the profit tax base (including income) must be determined based on the results of each reporting (tax) period. For example:

• on the settlement date in accordance with the terms of concluded agreements, license payment schedules - if the agreement provides for periodic payments;

• evenly on the last day of the reporting (tax) period during the term of the agreement - if, under the terms of the agreement, the organization receives remuneration in a lump sum.

This procedure follows from the provisions of paragraph 2 of Article 286, paragraph 2 of Article 271 of the Tax Code of the Russian Federation and is confirmed by letters of the Ministry of Finance of Russia dated July 20, 2012 No. 03-03-06/1/354, dated August 9, 2010 No. 03-03- 06/1/534.

If the organization uses the accrual method and the conclusion of licensing agreements is not the main activity, then the date of recognition of income will be:

• or the date of settlements in accordance with the terms of the contracts;

• or the date of presentation to the licensee of documents serving as the basis for settlements (for example, invoices);

• or the last day of the reporting or tax period.

This procedure is established in subparagraph 3 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation.

Situation: in what order, using the accrual method, should royalties be reflected in income, the amount of which is set as a percentage of the licensee’s performance indicators?

Income in the form of license fees should be taken into account when calculating income tax after the moment you receive any document with which you can determine the amount.

When calculating income tax, an organization's income is determined on the basis of primary documents and other documents confirming the income received by the taxpayer. This follows from paragraph 1 of Article 248 of the Tax Code of the Russian Federation. In this case, the main document on the basis of which the licensor's remuneration is calculated (a report on the use of intellectual property) is missing. It is impossible to determine its value based on other documents (for example, a license agreement, payment documents).

In this situation, it is impossible to recognize income in the amount determined according to the rules of Article 105.3 of the Tax Code of the Russian Federation. This article is applied by tax inspectors only in relation to controlled transactions between related parties (Article 105.14 of the Tax Code of the Russian Federation). For more information about this, see: In what cases can the tax inspectorate check the correctness of the application of prices for tax purposes.

In the case where the organization’s income cannot be determined due to the lack of necessary documents (including due to the fault of the counterparty), the rules of Article 105.3 of the Tax Code of the Russian Federation do not apply.

If necessary, after the report has been received and income has been determined, submit an amended return for the appropriate reporting period. For more information about correcting tax reporting, see In what cases is an organization required to file an updated tax return.

Advice: to avoid claims from regulatory agencies, take measures to obtain the necessary documents (send a telephone message, a written request, etc.). Also in the license agreement, provide for the procedure for the licensor's actions in the event that the licensee does not submit a report on the use of intellectual activity on time.

For example, in addition to penalties for violating the terms of the contract, it can provide for the amount of a guaranteed payment that the licensor will take into account and receive if it does not receive a report on time. As well as the procedure for resolving disputes and conducting mutual settlements in the current situation.

If the licensee is a foreign person, then the licensor organization has the right to offset the amount of taxes paid (withheld) from license payments in a foreign country when paying income tax in Russia (Article 311 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia for Moscow dated April 30 2008 No. 20-12/041936).

How to account for the costs of licensed software

From the article you will learn:

1. What determines the procedure for accounting for expenses for licensed software in tax accounting?
2. How to reflect in accounting the acquisition of a non-exclusive right to use software.

3. What liability is provided for by the legislation of the Russian Federation for the use of unlicensed software products.

Nowadays it is difficult to imagine an organization that does not have computers. However, a computer as such, without software, is of practically no value. It is software that helps the user solve a variety of tasks facing him: from the simplest creation of a text document to complex design. At the same time, software does not have a tangible form, that is, purchasing any program means obtaining the rights to use it. Most often, licensed software is used, purchased under a license agreement without transferring exclusive rights to it. These include anti-virus programs, office applications, and various specialized programs, for example, for accounting. In this article we will talk specifically about licensed software, or more precisely, about how to take into account the costs of its acquisition in tax and accounting.

Supporting documents

In order to take into account the costs of purchasing programs in accounting and tax accounting, documentary evidence is required (Article 252, paragraph 1 of the Tax Code of the Russian Federation). In the case of licensed software, the main supporting document is the license agreement. In accordance with Art. 1235 Civil Code of the Russian Federation:

“Under a license agreement, one party, the holder of the exclusive right to a result of intellectual activity or a means of individualization (licensor), grants or undertakes to provide the other party (licensee) with the right to use such result or means within the limits provided for by the agreement.”

The license agreement between the supplier (licensor) and the buyer (licensee) of the software product establishes the amount of remuneration (that is, the cost of the program), as well as the duration of the agreement (the period of use of the program). If such a period is not expressly stated in the contract, then in civil law it is considered equal to five years (clause 4 of Article 1235 of the Civil Code of the Russian Federation).

The form in which the license agreement is drawn up, as well as supporting documents, may vary depending on the method of purchasing the software:

If you have the supporting documents listed above, you have every reason to reflect the licensed software used in business activities in tax and accounting records. However, you need to take into account some nuances, which will be discussed below.

Tax accounting of expenses for the purchase of licensed software

Income tax

For profit tax purposes, expenses for the acquisition of the right to use software in accordance with license and sublicense agreements (expenses for the acquisition of licensed software) reduce the tax base and are included in other expenses associated with production and sales (clause 1, paragraph 26, article 264 of the Tax Code RF). However, the tax treatment of such expenses may vary depending on the duration of the license agreement (the period of use of the software), or more precisely, on whether this period is established.

1. If the contract establishes a period for which the licensee is given the right to use the software product, then the costs of its acquisition should be written off evenly throughout this period (clause 1 of Article 272 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of the Russian Federation dated August 31, 2012 No. 03-03- 06/2/95, dated 12/16/2011 No. 03-03-06/1/829).

Example.

Perspektiva LLC acquired the software product Kaspersky Internet Security 2014 under a license agreement. The cost of the program is 2,400 rubles. (excluding VAT), the license agreement is valid for 2 years.

Since the validity period of the license agreement is determined, for the purposes of calculating income tax, the organization will write off 100.00 rubles as expenses every month. (RUB 2,400 / 24 months).

2. In the case where a specific validity period of the license agreement is not established, the position of the regulatory authorities is ambiguous.

Previously, the Ministry of Finance explained that an organization has the right to independently establish a procedure for accounting for expenses for the acquisition of such software, taking into account the principle of uniformity (Letter of the Ministry of Finance of Russia dated March 18, 2013 N 03-03-06/1/8161). However, a little later, clarifications from the Ministry of Finance came out, according to which, if the period for using the software is not established by the license agreement, then for tax accounting purposes the norms of the Civil Code of the Russian Federation are applied - that is, this period is considered equal to five years (Letter of the Ministry of Finance of the Russian Federation dated April 23, 2013 No. 03-03 -06/1/14039). Thus, expenses for the purchase of software must be written off in tax accounting in equal parts over five years.

The judiciary also has its own position on this issue. There are court decisions that recognize the legality of writing off the costs of purchasing software at a time of installation, regardless of the validity period of the license agreement (Resolutions of the Federal Antimonopoly Service of the Moscow Region dated 01.09.2011 N KA-A40/9214-11, dated 28.12.2010 N KA-A40 /15824-10; FAS PO dated 01/26/2010 N A57-4800/2009; FAS SZO dated 08/09/2011 N A56-52065/2010).

! Please note: Due to such ambiguity in the opinions of the Ministry of Finance and the judiciary, it is better to consolidate the chosen procedure for accounting for expenses for the purchase of software in the accounting policy for tax purposes.

simplified tax system

Expenses for the purchase of licensed software are taken into account when determining the tax base according to the simplified tax system with the object of taxation “income - expenses” based on clause 1. 19th century 346 Tax Code of the Russian Federation. At the same time, there is no special procedure for accounting for such expenses for calculating tax under the simplified tax system, in contrast to calculating income tax. Accordingly, they are taken into account once after installing and paying for the software.

Accounting for licensed software

Licensed software is reflected in accounting in the manner established by clause 39 of PBU 14/2007 “Accounting for intangible assets”. In accordance with PBU, intangible assets received for use, that is, licensed programs, must be accounted for on an off-balance sheet account at the cost of acquisition. The chart of accounts does not provide for such an account, so you must independently enter it into the organization’s working chart of accounts. For example, for these purposes you can create an off-balance sheet account 012 “Intangible assets received for use.” Expenses for the acquisition of software are accounted for as deferred expenses and are written off as operating expenses over the entire period of use. The period of use of the software, as for tax accounting, is determined by the period of validity of the license agreement. If the contract does not establish a deadline, the organization has the right to determine it independently. It is better to establish the criteria for determining the period of use of the software in the accounting policy for accounting purposes (it is more convenient if these criteria coincide with those used in tax accounting).

Accounting entries for accounting for licensed software:

Responsibility for using unlicensed software

Often, managers and business owners, in an effort to save money on software, allow the installation of unlicensed programs on corporate computers. Therefore, it would be useful to know about the penalties provided for using unlicensed software:

1. Civil liability (Article 1301 of the Civil Code of the Russian Federation) in the form of compensation for losses or payment of compensation:

• from 10 thousand rubles. up to 5 million rubles at the discretion of the court;
• twice the cost of the software.

2. Administrative liability (Part 1 of Article 7.12 of the Code of Administrative Offenses of the Russian Federation) in the form of a fine:

• 30 – 40 thousand rubles. — on the organization;
• 10 -20 thousand rubles. - to the manager.

3. Criminal liability (Article 146 of the Criminal Code of the Russian Federation):

• imprisonment for up to 2 years and a fine of up to 200 thousand rubles, if the cost of the software is from 100 thousand rubles. up to 1 million rubles;
• imprisonment for up to 6 years and a fine of up to 500 thousand rubles, if the cost of the software is 1 million rubles. and more.

As you can see, the measures to protect the exclusive right to software products are very serious. In this case, is it worth installing unlicensed versions of programs and thereby putting your business at risk? Each leader solves this issue in his own way. However, in my opinion, it would be useful for an accountant to remind the manager of responsibility, as well as the fact that the costs of purchasing licensed software products and their maintenance reduce the tax base both for income tax and for the simplified tax system.

If you find the article useful and interesting, share it with your colleagues on social networks!

If you have any comments or questions, write to us and we’ll discuss them!

Legislative and regulatory acts:

1. Tax Code of the Russian Federation

2. Civil Code of the Russian Federation

3. Criminal Code of the Russian Federation

4. Code of Administrative Offenses of the Russian Federation

All codes of the Russian Federation are available on the Official Internet portal of legal information https://pravo.gov.ru/

5. Letters from the Ministry of Finance of the Russian Federation

You can familiarize yourself with the documents of the financial department on the official legal portal of the Ministry of Finance of the Russian Federation https://mfportal.garant.ru/

BASIS: VAT

Depending on the type of intellectual property, the right to use which is transferred, the licensor’s remuneration (license payments) are subject to VAT or not subject to this tax (subclause 1, clause 1, article 146 and subclause 26, clause 2, article 149 of the Tax Code of the Russian Federation) . To determine whether you need to pay VAT to the budget, see the table.

For more information on how to calculate VAT, see How to calculate VAT on the sale of property rights.

The main condition for obtaining a VAT benefit is the existence of a license (sublicense) agreement concluded in accordance with the law between the licensor and the licensee (see, for example, letters of the Ministry of Finance of Russia dated December 28, 2010 No. 03-07-07/81, dated October 7, 2010 No. 03-07-07/66, dated January 12, 2009, No. 03-07-05/01 and Federal Tax Service of Russia dated January 31, 2014, No. GD-4-3/1588). The operation of implementing computer programs (including under accession agreements) has its own peculiarities of VAT calculation. For more information about this, see Which transactions are exempt from VAT.

For such transactions, the licensor is not obliged to issue an invoice to the licensee (Clause 3 of Article 169 of the Tax Code of the Russian Federation).

For information on whether an intermediary organization must withhold VAT as a tax agent if the licensor is a foreign organization not registered in Russia and the licensee is a Russian organization, see Who must perform the duties of a tax agent for VAT.

An example of reflection when taxing license payments. Transferring rights to use intellectual property is a one-time operation for an organization. The organization uses the accrual method

On January 13, Torgovaya LLC (licensor) entered into a license agreement with Alpha LLC (licensee) for the right to use the Hermes trademark. The contract is valid for three years (1096 days) from the date of its state registration. The agreement was registered on February 15.

The license agreement provides for a one-time remuneration to the licensor in the form of a one-time (lump sum) payment in the amount of 590,000 rubles. (including VAT - 90,000 rubles), which is transferred within five days from the date of entry into force of the license agreement.

On February 20, Alpha transferred 590,000 rubles to Hermes.

Hermes calculates income tax on a monthly basis. The organization's accounting policy for tax purposes provides for an even distribution of future income based on the number of calendar days falling on the reporting month.

When calculating the profit tax for February, the Hermes accountant included in the taxable base the part of the license payment due to the organization due to February: (590,000 - 90,000 rubles): 1096 days. × 17 days = 7755 rub.

Also, the Hermes accountant charged VAT on the received license payments in the amount of 90,000 rubles.

Accounting: writing off deferred expenses

The organization can independently establish the procedure for distributing future expenses during the term of the contract (evenly, in proportion to the volume of production, income received, etc.). Fix the chosen option in the accounting policy (clauses 7 and 8 of PBU 1/2008, letter of the Ministry of Finance of Russia dated January 12, 2012 No. 07-02-06/5). When writing off expenses, make the following entries:

Debit 20 (26, 44, 91-2) Credit 97 – deferred expenses (part of them) are expensed.

If the costs associated with obtaining rights are insignificant (compared to license fees), they can be taken into account at a time based on the principle of rationality (clause 6 of PBU 1/2008). Determine the materiality criterion yourself and reflect it in the accounting policy for accounting purposes (clauses 7, 8 of PBU 1/2008).

simplified tax system

Organizations that apply the simplification keep records of taxable income on the basis of Articles 249 and 250 of the Tax Code of the Russian Federation (clause 1 of Article 346.15 of the Tax Code of the Russian Federation).

The revenue date is the day on which the entity actually receives the royalties. Including the amount received in the form of an advance, include it in simplified income immediately at the time it arrives to the organization. This procedure follows from paragraph 1 of Article 346.17 of the Tax Code of the Russian Federation, decision of the Supreme Arbitration Court of the Russian Federation dated January 20, 2006 No. 4294/05 and is explained in letters of the Ministry of Finance of Russia dated December 18, 2008 No. 03-11-04/2/197, dated 21 July 2008 No. 03-11-04/2/108, dated January 25, 2006 No. 03-11-04/2/15, Ministry of Taxes of Russia dated June 11, 2003 No. SA-6-22/657.

The cost of obtaining a copyright license agreement

The amount of the state fee for registration actions differs markedly from regular fees. The licensing fee is about 13,500 rubles, so it is very important to quickly respond to all comments from the registrar.

It is extremely difficult to return the state duty. Among the additional costs that will be required to assign to an individual (legal entity) the results of his intellectual activity is the fee for a trademark (brand, label, patent). For each additional certificate you will need to pay 11,500 rubles.

Full Agreement; English version

This Agreement constitutes the sole and exclusive agreement between the parties and supersedes and supersedes all prior written and oral agreements and correspondence relating to the subject matter hereof.
Nothing in the order form or any other commercial form used by you supersedes the terms of this Agreement, and any such documents issued by the parties hereto with respect to this Agreement shall be for administrative purposes only and shall have no legal effect. If the applicant has the necessary experience and skills in applying to Rospatent, everything usually goes smoothly. Often, in the absence of skills in drawing up documents for state registration, departmental bodies refuse to accept documents. As a result, the processing time is delayed and the risk of losing your money increases. To exclude such situations, the parties to the license agreement often resort to participants in the registration process. Strict adherence to all formalities when entering information into the register of contracts guarantees obtaining results.

The headings in this Agreement are for convenience only and have no legal or contractual effect. The official language of these Terms is English. If there is a conflict between the English version and the translation, the English version is valid.

The parties to this Agreement are independent contractors. The Contract does not create a partnership, joint venture, employment, franchise or agency relationship between the parties. Neither party has the right to bind the other party or incur obligations on behalf of the other party without the prior written consent of the other party.

The cost of legal services at the stage of preparing documents for Rospatent is about 5,000 rubles. This amount does not include the development of an agreement for the right to use

intellectual property product. Contract prices vary in the range of 25,000-30,000 rubles. Working out additional agreements will cost the applicant no less than 10,000 rubles.

Neither party shall be liable to the other party for any delay or failure to perform any obligations under this Agreement if the delay or failure is due to unforeseen events occurring after the execution of this Agreement and which are beyond the reasonable control of the parties, such as strikes, lockout, war, terrorism, riot, act of God, refusal to issue a license or change of rules or regulations from the government or other government bodies, to the extent prevents such an event or delay from the open party to perform its duties, and such party is not in able to prevent or eliminate force majeure at a reasonable cost.

Tax accounting

Exclusive rights to the results of intellectual activity acquired under a license agreement, as well as exclusive rights to use them in tax accounting, can be recognized as depreciable property and reflected in the organization’s intangible assets.

So, in accordance with paragraph 1 of Art. 256 of the Tax Code of the Russian Federation (as amended on July 3, 2016), depreciable property is property, results of intellectual activity and other objects of intellectual property that are owned by the taxpayer, used by him to generate income and the cost of which is repaid by calculating depreciation. Depreciable property is property with a useful life of more than 12 months and an original cost of more than 100,000 rubles.

According to paragraph 3 of Art. 257 of the Tax Code of the Russian Federation NMA recognizes acquired results of intellectual activity and other objects of intellectual property (exclusive rights to them) used in the production of products (performance of work, provision of services) or for the management needs of the organization.

TAX ACCOUNTING AUDIT

Also, for recognition of intangible assets, it is necessary that the asset has the ability to bring economic benefits (income) to the organization and properly executed documents confirming the existence of the asset itself and (or) the exclusive right to the results of intellectual activity (including patents, certificates, etc.).

Intangible assets, in particular, include:

• the exclusive right of the patent holder to an invention, industrial design, utility model;
• the exclusive right of the author and other copyright holder to use a computer program, database;
• the exclusive right of the author or other copyright holder to use the topology of integrated circuits;
• possession of know-how, secret formula or process, information regarding industrial, commercial or scientific experience, etc.

In accordance with clause 2. Art. 258 of the Tax Code of the Russian Federation, the determination of SPI of intangible assets is made based on the validity period of the patent, certificate and (or) other restrictions on the terms of use of intellectual property objects, as well as based on the SPI specified in the relevant agreement. For intangible assets for which it is impossible to determine SPI, depreciation rates are established for 10 years. It should be noted that according to intangible assets specified in paragraphs. 1–3, 5–7 paragraph 3 clause 3 art. 257 of the Tax Code of the Russian Federation, organizations have the right to independently determine their private investment, which cannot be less than 2 years.

According to paragraphs. 1 and 2 tbsp. 259 of the Tax Code of the Russian Federation, the method of calculating depreciation (linear or non-linear) is established by the organization independently and is reflected in its accounting policies for tax purposes. The amount of depreciation for intangible assets is calculated monthly.

Non-exclusive rights to the results of intellectual activity, as well as the rights to use them, are included in other costs associated with production and sales.

In accordance with paragraphs. 26 clause 1 art. 264 of the Tax Code of the Russian Federation, other expenses include expenses associated with the acquisition of the right to use computer programs and databases under agreements with the copyright holder (under license and sublicense agreements). These expenses also include expenses for the acquisition of exclusive rights to computer programs worth less than RUB 100,000.

Also according to paragraphs. 37 clause 1 art. 264 of the Tax Code of the Russian Federation, other expenses include periodic (current) payments for the use of rights to the results of intellectual activity and rights to means of individualization (in particular, rights arising from patents for inventions, utility models, industrial designs).

EXTERNAL AUDIT

With the accrual method based on clause 1 of Art. 272 of the Tax Code of the Russian Federation, expenses accepted for tax purposes are recognized as such in the reporting (tax) period to which they relate, regardless of the time of actual payment of funds and (or) other forms of payment and are determined taking into account the provisions of Art. 318–320 Tax Code of the Russian Federation.

Accounting

Exclusive rights to the results of intellectual activity acquired under a license agreement, as well as exclusive rights to use them in the accounting of an organization, are recognized as intangible assets (hereinafter referred to as intangible assets).

In accordance with clause 3 of PBU 14/2007 “Accounting for intangible assets”, approved by order of the Ministry of Finance of Russia dated December 27, 2007 No. 153n (as amended on May 16, 2016) (hereinafter referred to as PBU 14/2007), for adoption For accounting of an object as an intangible asset, the following conditions must be simultaneously met: the object is capable of bringing economic benefits to the organization in the future; the organization has properly executed documents confirming the existence of the asset itself and the right of this organization to the result of intellectual activity or a means of individualization - patents, certificates, other documents of protection; the object can be identified; the object is intended for use over 12 months; the property is not expected to be sold within 12 months; the actual (initial) cost of the object can be reliably determined; the absence of a material form in an object.

LICENSE AGREEMENT FOR A NON-EXCLUSIVE LICENSE

COPYRIGHT LICENSE AGREEMENT: SAMPLE

If these conditions are met, intangible materials include, for example, works of science, computer programs, inventions, utility models, selection achievements, production secrets (know-how).

When accepting an intangible asset for accounting, an organization determines its useful life (hereinafter referred to as the useful life). Intangible assets for which it is impossible to reliably determine the PPI are considered to be intangible assets with an uncertain PPI.

The cost of intangible assets with a certain SPI is repaid by calculating depreciation during this period.

The determination of the monthly amount of depreciation charges is made in one of the following ways, reflected in the accounting policies of the organization for accounting purposes:

• linear method;
• reducing balance method;
• method of writing off cost in proportion to the volume of products (works).

Depreciation is not accrued for intangible assets with an unspecified SPI.

Non-exclusive rights to use the result of intellectual activity by intangible assets acquired under a license (sublicense) agreement are not recognized.

Intangible assets received for use are taken into account by the organization on an off-balance sheet account in the assessment determined based on the amount of remuneration established in the agreement (clause 39 of PBU 14/2007).

ACCOUNTING SERVICES OUTSOURCING

In this case, payments for the granted right to use the results of intellectual activity or means of individualization, made in the form of periodic payments, calculated and paid in the manner and within the terms established by the agreement, are included by the organization in the expenses of the reporting period and are taken into account in accordance with PBU 10/99 “Expenses of the organization” , approved by order of the Ministry of Finance of Russia dated May 6, 1999 No. 33n (as amended on April 6, 2015). Payments for the granted right to use the results of intellectual activity or means of individualization, made in the form of a fixed one-time payment, are reflected in the organization's accounting records as deferred expenses and are subject to write-off during the term of the contract.