Free transfer of property to government tax authorities. Free receipt of property and property rights. Tax accounting of appraiser services

An organization can receive property or property rights free of charge only in two cases provided for by the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation).

In the first case, the organization receives property or property rights under a gift agreement. In accordance with Article 572 of the Civil Code of the Russian Federation, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to yourself or to a third party.

In accordance with Article 575 of the Civil Code of the Russian Federation, commercial organizations cannot give each other property whose value exceeds five times the minimum wage.

In the case where the donor is a legal entity and the value of the gift exceeds five minimum wages established by law, the gift agreement must be concluded in writing. This norm is established by paragraph 2 of Article 574 of the Civil Code of the Russian Federation.

Calculation of payments for civil obligations established depending on the minimum wage, in accordance with Article 5 of the Federal Law of June 19, 2000 No. 82-FZ “On minimum size remuneration” from January 1, 2001 is based on a base amount equal to 100 rubles.

Another case of receiving a fixed asset free of charge is a donation. Based on Article 582 of the Civil Code of the Russian Federation, a donation is the gift of a thing or right for generally beneficial purposes. Donations can be made to citizens, medical, educational institutions, institutions social protection, charitable, scientific and educational institutions, as well as other subjects of civil law.

One of the conditions for donating property to legal entities is the use of this property for a specific purpose. A legal entity that has accepted a donation for which a specific purpose has been established must keep separate records of all transactions involving the use of such property.

If for some reason it becomes impossible to use the property for its intended purpose, it can be used for another purpose only with the consent of the person who donated the property.

Assets received by an organization under a gift agreement (free of charge), in accordance with paragraph 8 of PBU 9/99, approved by Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 32n “On approval of the regulations on accounting“Income of the organization” PBU 9/99” (hereinafter referred to as PBU 9/99) is non-operating income.

In accordance with clause 10.3 of PBU 9/99, assets received free of charge are accepted for accounting at market value. The market value of assets received free of charge is determined by the organization on the basis of prices in force on the date of their acceptance for accounting for this or a similar type of asset. Data on prices valid on the date of acceptance for accounting must be confirmed by documents or through an examination.

The market price of goods (work, services) in accordance with paragraph 4 of Article 40 Tax Code The Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) recognizes the price established by the interaction of supply and demand on the market of identical (and in their absence, homogeneous) goods (works, services) under comparable economic (commercial) conditions.

The definitions of identical and homogeneous goods are given in paragraphs 6 and 7 of Article 40 of the Tax Code of the Russian Federation:

Products that have the same basic characteristics characteristic of them are recognized as identical. When determining the identity of goods, in particular, their physical characteristics, quality and reputation in the market, country of origin and manufacturer. When determining the identity of goods, minor differences in their appearance may not be taken into account;

homogeneous goods are those that, while not identical, have similar characteristics and consist of similar components, which allows them to perform the same functions and (or) be commercially interchangeable. When determining the homogeneity of goods, their quality, presence of a trademark, reputation in the market, and country of origin are taken into account.

Example 1.

The organization received free of charge (as a donation) a fixed asset that required repairs. The market value of the property is 18,000 rubles. The resulting fixed asset is intended to be used in the main production. Term beneficial use for accounting and tax accounting installed for 4 years. Depreciation in accordance with accepted accounting policy accrued on a straight-line basis. The repair of the fixed asset item was carried out by a third party; the cost of repair was 4,012 rubles (including VAT 612 rubles).

Account correspondence		Amount, rubles
Debit	Credit	Amount, rubles
			The fixed asset received under a gift agreement is reflected as part of investments in fixed assets
			Reflects the cost of repairing fixed assets
			VAT is reflected on the cost of repair work
			The resulting fixed asset was put into operation (18,000 rubles + 3,400 rubles)
			Payment has been made for repairs performed by a third party
			Accepted for deduction of VAT on the cost of repairs of fixed assets
			Deferred tax asset reflected
Monthly until the cost of the equipment is completely written off or disposed of
			Depreciation was accrued on a fixed asset item received free of charge (21,400 / 4 / 12)

End of the example.

Initial cost intangible assets received by an organization under a gift agreement (free of charge) in accordance with paragraph 10 of PBU 14/2000 is determined based on their market value as of the date of acceptance for accounting.

Based on the Chart of Accounts, the value of gratuitously received intangible assets is reflected in the credit of account 98 “Deferred income”, subaccount 98-2 “Gratuitous receipts”, in correspondence with account 08 “Investments in non-current assets”, subaccount 08-5 “Acquisition of intangible assets” . The cost of a gratuitously received intangible asset, recorded on account 98 “Deferred income”, is written off from this account to the credit of account 91 “Other income and expenses” as it is recognized in reporting period non-operating income, that is, as depreciation accrues on this intangible asset.

The assessment of gratuitously received intangible assets for profit tax purposes is carried out in a manner similar to the assessment of fixed assets. IN in this case a difference will also arise, which, in accordance with PBU 18/02, should be reflected in the accounting accounts.

Example 2.

The production organization received free of charge (under a gift agreement) from individual exclusive property rights to the creation he created computer program which is intended to be used for production purposes. The market value of the acquired rights, determined by an independent appraiser, is 18,000 rubles. The expected duration of the program is 4 years. Depreciation in accordance with the adopted accounting policy is calculated using the straight-line method.

Monthly until the value of the intangible asset is completely written off

Depreciation was accrued on a gratuitously received intangible asset (18,000/4/12)

Part of the cost of the fixed asset received free of charge is reflected in non-operating income (18,000 / 4 / 12)

Reflected decrease in deferred tax asset(375 x 24%)

End of the example.

According to paragraph 9 of PBU 5/01 actual cost Inventory received under a gift agreement or free of charge is defined as their current market value on the date of acceptance for accounting, which means the amount Money, which can be obtained as a result of their sale. Market prices are determined taking into account the provisions of Article 40 of the Tax Code of the Russian Federation.

The definition of gratuitously received property can be found in Civil Code RF. In most cases, a transfer of property that does not have a commercial basis is considered a donation. In addition, the party transferring the property has the right to completely release the person receiving the property from various obligations before him or other persons.

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In addition to various things, the object of donation can also be the right to property. In accordance with the Tax Code of the Russian Federation, property or rights to it are considered to be received free of charge if the person to whom it was transferred does not have various obligations to the transferring party. This list may also include various works and services.

However, current legislation has introduced a number of restrictions on the act of gratuitous transfer of property.

For example, a ban on donations between organizations involved in commercial activities. However, gifts not exceeding 5 minimum wages are permitted. There are much fewer prohibitions in this regard in the tax code. The amount of tax assessment depends largely on the circumstances.

Law

Legislatively, the possibility of gratuitous transfer of property is enshrined in the tax and civil codes of the Russian Federation. They also regulate various subtleties on this issue.

The issue of paying property tax is regulated.

Income tax on property received free of charge

A detailed list of income on which tax is levied is given in Art. 346 Tax Code of the Russian Federation. All profits can be divided into:

income received by a citizen through the sale of various goods and services;
income received by other means.

The last point also includes property and rights to it received free of charge. Exceptions to this rule are given in.

According to current legislation, income from such transactions will be taxed if the property is received:

from various organizations, provided that the recipient's deposit is more than 50% of the transferring party's contribution;
from an individual under the same conditions.

The received property will not be subject to income tax if it is not transferred to third parties within the period established by law. If a citizen received property free of charge, but one of them is not depreciable, he is obliged to assess the income associated with it based on market price indicators. The valuation cannot be lower than the funds incurred for the acquisition.

If a citizen has acquired depreciable property of this kind, the amount of income must be assessed based on market price indicators, which are determined taking into account Art. 40 Tax Code of the Russian Federation. However, their size cannot be lower than the standards established in Chapter 25 of the Tax Code of the Russian Federation.

Price indicators for receiving property free of charge are confirmed by documents or an independent assessment. When transferring an object or rights to it, carried out on a gratuitous basis, it is considered that a donation has been made.

The transfer will not be considered gratuitous if the citizen is obliged to return the previously received item. There are often cases when the transfer of property is carried out for a specified period, and it is necessary to conclude an agreement for gratuitous use. In this case, the income is also taxed.

There are often cases when a citizen or company receives an interest-free loan. In this case, there is no income as such. Accordingly, there is no need to pay tax.

This is confirmed by numerous statements by tax inspectors, as well as legislative acts.

However, in some cases, according to experts, the taxpayer has a certain material benefit. In this case, an interest-free loan is classified as a gratuitous service. The citizen is considered to receive income. It represents the benefit of saving on interest payments.

This issue is still controversial. On the one hand, an interest-free loan cannot in any way be considered a gratuitous service. On the other hand, the citizen still receives a certain material benefit.

All the subtleties interest-free loan regulated by 42 ch. Civil Code of the Russian Federation.

In accordance with it, an interest-free loan is a transfer of money or other things into the possession of the borrower with the obligation of the latter to return the property within a specified period. In this case, its quantity must be equal to that received.

Individuals

They pay a type of contribution to the budget provided that the amount of the contribution of the transferring party exceeds the norms established by law.

Organizations

When a company is just starting out, it often needs financial assistance from its founders. The latter, in turn, are often forced to provide support to the subsidiary in the form of various contributions and loans.

There are often cases when an act of gratuitous transfer of property into ownership is performed. However, when committing such acts, you should carefully consider the essence of the transaction, because in some cases taxpayers will be required to remit property taxes on property received free of charge.

According to income taxes include funds received by an organization through the sale of goods and services, as well as income received in other ways.

Property or rights to it fall under the act of donation, subject to the receipt of these assets with the emergence of obligations from the recipient to the transferor. Property received free of charge is classified by tax legislation as non-operating income.

Sum

Income tax expenses depend on, which in most cases is 20%, as well as the type of property involved in the transaction.

Some regions, as well as federal cities, may have their own tax rates.

In most cases, 18% of the proceeds are transferred to regional budget, and 2% in the federal one.

Detailed information about the current tax rate in the territory of a constituent entity of the Russian Federation can be found on the website of the Federal Tax Service.

Payment procedure and terms

The authorities of the constituent entities of the Russian Federation often pass various laws that slightly adjust the procedure and timing of tax collection.

Direct payment of tax by a citizen is carried out at a bank branch or using electronic resources.

Legislation undergoes periodic changes, therefore, when calculating the amount of tax, as well as when paying it, a citizen must be aware latest changes. To do this, you need to clarify the information on the website. tax service or other state portals, as well as by personally contacting the tax office.

Transmitting side takes into account the cost of gratuitously transferred property (including money) in other expenses, along with the amount of VAT accrued upon transfer. The postings will be like this:

The host takes into account property at market value (clause 9 of PBU 5/01, clause

Free receipt of property, wiring

10 PBU 6/01).

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

– a certificate compiled by the organization itself based on available information on prices for the same property (for example, from the media);

– report of an independent appraiser.

Which account the property accounts will correspond to (01 “Fixed assets”, 10 “Materials”, 41 “Goods”) for the loan depends on who transferred the property.

Property received free of charge from a member of your organization should be taken into account as Extra capital. The wiring will be like this:

Wiring	Operation
D 01 (10, 41, 51) – K 83	Property transferred by a member of the organization has been accepted for accounting

Fixed assets transferred free of charge by a person who is not a member of your organization should be taken into account in correspondence with account 98 “Deferred income” (Letter of the Ministry of Finance dated September 17, 2012 N 07-02-06/223). As depreciation is accrued on this asset, future income is written off to other income. The postings will be like this:

Inventory received from a person who is not a member of your organization is immediately taken into account in other income. The postings will be like this:

Tags: taxesVAT

The property was received free of charge

Commercial medical organizations receive property free of charge from owners (founders), other organizations or individuals.

Behind the apparent simplicity of such a transaction, great complexities are hidden. Moreover, questions arise both in accounting and tax accounting. We will talk more about this in our article.

From the point of view of civil law...

...the gratuitous transfer of property and property rights is considered as a gift agreement (Article 572 of the Civil Code of the Russian Federation). The hallmark of such an agreement is the fact that it is gratuitous, and not the name. Therefore, a gift includes an agreement on the gratuitous transfer of property or the gratuitous assignment of claims, debt forgiveness, etc.

But please note: in accordance with Art. 575 of the Civil Code of the Russian Federation, commercial organizations cannot give each other property, except for ordinary gifts worth no more than 5 minimum wages (500 rubles). If the value of the property transferred free of charge exceeds this limit, tax officials in judicial procedure can re-qualify such a transaction: they will prove that the transfer of property is not a donation, but something else. As a result, the transaction may be considered void.

Note. If they give money

According to the Civil Code of the Russian Federation, money is also considered property. Therefore, if a company received money as a gift from an individual, no questions arise. It is more difficult if they are received from an organization. After all, such gifts (if their value is more than 5 minimum wages) are prohibited. Therefore, how should such an operation be interpreted? You can’t call it feigned – someone is actually transferring money to someone. You can’t call it imaginary either (v.

Accounting for property received free of charge

170 of the Civil Code of the Russian Federation). Then the transaction can be called differently - insignificant.

In practice, there are situations when it is not property that is transferred free of charge, but only the right to use it.

This most often occurs when the owner of an organization transfers his personal property (for example, a car) for use.

A gratuitous use agreement is essentially similar to a lease agreement. And unlike a gift agreement, it can be concluded with both an individual and legal entity and apply to property of any value: The Civil Code of the Russian Federation does not contain any restrictions on this agreement.

Accounting for property received free of charge

In accordance with clause 8 of PBU 9/99 “Income of the organization” (approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n), assets received free of charge, including under a gift agreement, are non-operating income. They are accepted for accounting at market value.

Clause 10.3 of PBU 9/99 establishes that the market value of such assets is determined by the organization on the basis of the prices in force for this or a similar type of asset at the time of their acceptance for accounting.

Moreover, price data must be confirmed by documents or examination.

It is worth noting the fact that regulatory documents on accounting provide recommendations for accounting for assets received free of charge, and not for accounting for services received free of charge (mainly under agreements for the free use of property). As for the second, it is only indicated that the property itself, received under a free use agreement, is accounted for in account 001 “Leased fixed assets”.

Tax accounting of property received free of charge

The cost of property and property rights received free of charge is recognized by the recipient as non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). True, there are exceptions to this rule. For example when funds for targeted financing are received (clause 14, clause 1, article 251 of the Tax Code of the Russian Federation). Or when the property is received from an organization that owns more than 50 percent of the shares (stake) in the authorized capital of the receiving party - a medical company (clause 11, clause 1, article 251 of the Tax Code of the Russian Federation).

Please note that property received free of charge is valued at the market price, but not lower than:

residual value (for depreciable property);
costs of its production or acquisition from the transferring party (for other property, work performed, services provided).

In this case, information on prices must be confirmed by documents or an independent assessment.

Example. dental clinic LLC "Ariadna" received free of charge from LLC "Vesta" ( third party organization) materials for filling teeth worth 120,000 rubles. True, the market price of these materials is 141,600 rubles.

In the accounting of Ariadna LLC, the accountant will reflect the following:

Debit 10 Credit 98 subaccount "Gratuitous receipts"

RUB 141,600 — reflects the cost of received material assets(at their market price);

Debit 20 Credit 10

RUB 141,600 — material assets are written off for production;

Debit 98 subaccount "Gratuitous receipts" Credit 91 subaccount "Other income"

RUB 141,600 — the market value of the received material assets is included in non-operating income companies.

This posting is made after the cost of materials is written off to production.

At the same time, for profit tax purposes, Ariadna LLC must include 141,600 rubles. included in non-operating income at the time of receipt of materials.

Base:

pp. 1 clause 4 art. 271 of the Tax Code of the Russian Federation - if the clinic determines income and expenses using the accrual method;
clause 2 art. 273 of the Tax Code of the Russian Federation - if the clinic operates on a cash basis.

In practice, situations quite often arise when founders who own more than 50 percent of shares (shares) in the authorized capital of a company transfer their property to it for free use.

The question arises: should the freely received right to use this property be included in non-operating income?

According to tax authorities, it should be included. Since in Art. 251 of the Tax Code of the Russian Federation (clause 11, clause 1), which lists transactions not subject to income tax; we are talking only about property received free of charge from the founders, but not about services.

The definition of property is given in paragraph 2 of Art. 38 of the Tax Code of the Russian Federation, which states that property refers to types of objects of civil rights (with the exception of property rights).

It turns out that the right of use (property right) is not property. And the provisions of Art. do not apply to him. 251 of the Tax Code of the Russian Federation.

Note. How to evaluate a property right received free of charge?

Property received free of charge (work and services) must be valued at market value. This follows from paragraph 8 of Art. 250 of the Tax Code of the Russian Federation.

Nothing is said here about property rights.

Whether the freely received right to use property (property right) is a service is a controversial issue.

Clause 5 of Art. 38 of the Tax Code of the Russian Federation defines that 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. All-Russian classifier species economic activity OK 029-2001 (OKVED), put into effect by Decree of the State Standard of Russia of November 6, 2001 N 454-st, does not provide for activities for the implementation of property rights in its pure form.

Nevertheless, the value of the property right received free of charge must be taken into account when calculating income tax. In this case, it is also better to estimate income at the market price of the property right, but not lower than the cost of its acquisition from the transferor.

A.S.Petrov

An organization can receive property or property rights free of charge only in two cases provided for by the Civil Code of the Russian Federation.

In the first case, the organization receives property or property rights under a gift agreement.

Free sales: wiring

In accordance with Article 572 of the Civil Code of the Russian Federation, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to yourself or to a third party.

In accordance with Article 575 of the Civil Code of the Russian Federation, commercial organizations cannot give each other property whose value exceeds five times the minimum wage.

Calculation of payments for civil obligations established depending on the minimum wage, in accordance with Article 5 of the Federal Law of the Russian Federation of June 19, 2000. No. 82-FZ “On the minimum wage” from January 1, 2001, is based on a base amount equal to 100 rubles.

Another case of receiving a fixed asset free of charge is a donation. Based on Article 582 of the Civil Code of the Russian Federation, a donation is the gift of a thing or right for generally beneficial purposes. Donations can be made to citizens, medical, educational institutions, social protection institutions, charitable, scientific and educational institutions, as well as other subjects of civil law.

If for some reason it becomes impossible to use the property for its intended purpose, it can be used for another purpose only with the consent of the person who donated the property.

For accounting purposes, the assessment of property received free of charge, in accordance with paragraph 1 of Article 11 of the Federal Law of the Russian Federation of November 21, 1996. No. 129-FZ “On Accounting” is determined by market value as of the date of capitalization.

The market price of a product (work, service) in accordance with paragraph 4 of Article 40 of the Tax Code of the Russian Federation is recognized as the price established by the interaction of supply and demand on the market of identical (and in their absence, homogeneous) goods (work, services) in comparable economic (commercial) conditions .

The definitions of identical and homogeneous goods are given in paragraphs 6 and 7 of Article 40 of the Tax Code of the Russian Federation:

— goods are recognized as identical if they have the same basic characteristics characteristic of them. When determining the identity of goods, taking into account, in particular, their physical characteristics, quality and reputation in the market, country of origin and manufacturer. When determining the identity of goods, minor differences in their appearance may not be taken into account;

— homogeneous goods are those that, while not identical, have similar characteristics and consist of similar components, which allows them to perform the same functions and (or) be commercially interchangeable. When determining the homogeneity of goods, their quality, presence of a trademark, reputation in the market, and country of origin are taken into account.

Assets received by an organization under a gift agreement (free of charge), in accordance with paragraph 8 of the Accounting Regulations “Income of the Organization” PBU 9/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999. N 32н, are non-operating income.

Publication date: 2014-11-18; Read: 276 | Page copyright infringement

Accounting for transactions during gratuitous transfer of property

PLAN

Accounting with the receiving party

Determining the value of property

Tax accounting of property

Property accounting

Accounting with the transferring party

Tax accounting

Accounting

Any, even gratuitous, transfer and receipt of property must be reflected in accounting and tax accounting. The abstract will tell you how accounting is structured for the transferring and receiving parties if they use a simplified taxation system.

Relations built on the principle of gratuitousness are regulated by the rules established in civil legislation. The parties enter into a gift agreement, under which one transfers property (work, services) or property rights to the other free of charge.

Note. See paragraph 1 of Art. 572 of the Civil Code of the Russian Federation.

If the transfer of property or property rights is of an investment nature (for example, an investment in authorized capital, V joint activities etc.), it is no longer free of charge. Transfer on the condition of return is also not free of charge - the provision of a loan or loan.

Gifts between commercial organizations are prohibited, except in cases where the gift is not more than 5 minimum wages (clause 4 of Article 575 of the Civil Code of the Russian Federation). But if at least one of the parties is not commercial organization or an individual, you can already act completely freely.

Now let's move on to accounting. Let's start with the recipient, since his accounting mainly requires comment.

Accounting with the receiving party

So, we are faced with two main questions: how to determine the value at which property should be capitalized if they have not paid for it, and what income and expenses will be included in tax and accounting?

Determining the value of property

If the property was paid for, the value is known from the receipt documents, but if it was received free of charge, you will have to determine it yourself.

Let's turn to regulatory documents. We will need the Accounting Regulations and financial statements in the Russian Federation and PBU 9/99 “Income of the organization”.

Note. Approved by Orders of the Ministry of Finance of Russia dated July 29, 1998 N 34n and dated May 6, 1999 N 32n.

According to clause 10.3 of PBU 9/99, assets received free of charge are accounted for at market value. It is determined by the organization based on current prices for this or a similar type of asset.

Market prices are also used in tax accounting, but there is one peculiarity. The market price is taken into account only if it is not lower than the residual value of the depreciable property. For other property (work performed, services provided), the market price should not be lower than the production or acquisition costs incurred by the transferring party. This setting is contained in clause 8 of Art. 250 of the Tax Code of the Russian Federation, although it concerns non-operating income under income tax. But at the station 250 there is a link in Art. 346.15 of the Tax Code of the Russian Federation on the income of “simplified people”, so we are also obliged to follow this guideline.

The recipient must confirm the correct price of the received property with the documents on which he based his determination independently, or with the conclusion of an independent appraiser.

Note. Independent examination is regulated Federal law dated July 29, 1998 N 135-FZ “On valuation activities in the Russian Federation”.

An organization that turns to an independent appraiser will no longer directly deal with the issue of value. If you decide to do it yourself, for example, the following sources of information may be useful (Article 40 of the Tax Code of the Russian Federation):

— stock exchange reports;

— documents of state statistical bodies and bodies regulating pricing;

— printed publications and media.

Let us give two examples - on the acceptance of property for accounting and on the determination of the market price.

Example 1. Klen LLC, which uses the simplified system, received a machine free of charge from a non-profit organization. Independent appraiser valued it at 20,000 rubles. According to the certificate provided by the transferring party, the residual value of the machine is 24,000 rubles. At what cost should the receipt of the machine be reflected in accounting and tax accounting?

In accounting, the machine must be capitalized for 20,000 rubles. - at the value assigned by the appraiser, and in the tax office indicate 24,000 rubles in income, since the market value turned out to be lower than the residual value (20,000 rubles.< 24 000 руб.).

Example 2. Forum LLC, which uses the simplified system, received a car made in 1992 free of charge. Its residual value is 97,000 rubles. How to determine market value? At what cost should a car be registered?

Let’s assume that the company’s accountant found in the newspaper “Sdelka” four advertisements for the sale of a car of the same year of manufacture (95,000, 97,000, 100,000 and 102,000 rubles) and two advertisements for the purchase (94,000 rubles and 98,000 rubles) .

The market price is equal to the arithmetic average of the prices indicated in the advertisements. We got 97,667 rubles. .

In accounting and tax accounting, receipt of the car will be reflected in the same amount - 97,667 rubles. (97,667 rubles > 97,000 rubles). To confirm the correctness of the calculation, you need to attach a newspaper to the accounting documents.

Position. Transfer without transfer of ownership

Organizations can transfer or receive property free of charge for a certain period of time.

Postings for the gratuitous transfer of goods between legal entities

For example, a manufacturer temporarily provides a refrigerator to a company that sells its ice cream. In these cases, a free use agreement (loan agreement) is drawn up.

A paradoxical situation has arisen with the taxation of property received under such an agreement. On the one hand, such receipts are not income from sales, since ownership does not transfer (Letter of the Ministry of Finance of Russia dated January 11, 2005 N 03-03-02-04/1/1). On the other hand, the taxpayer who received the property must include it market value included in non-operating income (Letters of the Ministry of Finance of Russia dated 02/17/2006 N 03-03-04/1/125 and dated 04/19/2006 N 03-03-04/1/359).

The contradiction was resolved by the Presidium of the Supreme Arbitration Court of the Russian Federation, supporting the latest position of the Ministry of Finance (clause 2 of Information Letter dated December 22, 2005 N 98). Thus, the “simplified” people are still forced to take into account income. But the costs of the transmitting party, which reduce tax base, unfortunately, it still won’t appear...

Tax accounting of property

Income. When determining the object of taxation, firms using the simplified tax system take into account income from sales and non-operating income in accordance with Art. Art. 249 and 250 of the Tax Code of the Russian Federation. Income given in Art. 251 of the Tax Code of the Russian Federation are not included in their tax base.

Note. This is stated in paragraph 1 of Art. 346.15 Tax Code of the Russian Federation.

Following general rule, the recipient attributes the cost of gratuitous property (work, services) and property rights to non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). Based on paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, property cannot be considered non-operating income if:

— the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring party, which is a legal entity;

— the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving party, which is a legal entity;

— the authorized (share) capital (fund) of the receiving party consists of at least 50% of the contribution (share) of the transferring party, which is an individual.

Please note: restrictions apply exclusively to property, without affecting rights, works, or services. One more thing. If during the year such property (other than cash) is sold or transferred to third parties, its value should be included in income.

Let's find out at what time to reflect income from the receipt of property. Since the simplified tax system uses the cash method (clause 1 of Article 346.17 of the Tax Code of the Russian Federation), this will be the moment of signing the transfer and acceptance certificate.

Example 3. CJSC "Pegasus" applies the simplified tax system with the object of taxation being income. On March 11, 2006, the company received goods free of charge from the founding organization, whose share in the authorized capital is 60%. The market value of the goods is determined to be 17,000 rubles. Does it need to be reflected in tax accounting?

Since the authorized capital of Pegas LLC consists of more than 50% (60%) of the share of the transferring party, the cost of the goods received free of charge will not be included in the tax base, but will only be reflected in column 4 of the Book of Income and Expenses “Income - total” .

Now let’s look at how accounting will be done when selling property received free of charge.

Example 4. Let's use the conditions of example 3, adding the following to them. On June 19, 2006, Pegasus CJSC sold the goods for 15,000 rubles, immediately receiving payment. How to reflect the sale in tax accounting?

Upon receipt of the goods, the company had no taxable income. However, having sold the goods before the end of the year, she is obliged to include its market value (17,000 rubles) in income on the date of sale. In addition, income from sales (15,000 rubles) should be reflected on the date of receipt of funds. Let's fill out the Income and Expense Accounting Book (Table 1 on p. 48).

Table 1. Fragment of the Book of Income and Expenses

CJSC "Pegasus" for the second quarter of 2006

Expenses. Of course, there are no expenses when receiving the property. Will it be possible to include its cost in expenses in the future, for example, when selling or writing off for production? Unfortunately, it's not possible. The fact is that under the simplified tax system, only paid-for property can be classified as expenses (clause 2 of article 346.17 of the Tax Code of the Russian Federation). It follows from this that in any transactions with property received free of charge (for example, during a sale, as in example 4), only income appears.

At the beginning of its activities, each organization needs a unique financial assistance on the part of the founders. The latter often help their “brainchild” stay afloat by providing all kinds of contributions and interest-free loans. Very often, property is transferred to the public for ownership or use free of charge.

Periodically, there are operations for the gratuitous transfer and receipt of property and property rights from many organizations in the course of their activities. However, organizations need to be very careful when receiving such “gifts”. Doesn't the obligation to pay tax to the budget arise at the same time? Tax authorities always pay attention to the assistance received free of charge and will not miss the opportunity to replenish the budget.

Property received free of charge as income

The list of income that taxpayers using the simplified tax system must take into account is given in clause 1 art. 346.15 Tax Code of the Russian Federation. Structurally, all income in it is divided into two large groups:

– income from the sale of goods (work, services), sale of property and property rights. These incomes must be determined in accordance with Art. 249 Tax Code of the Russian Federation;

– non-operating income. They are determined in accordance with Art. 250 Tax Code of the Russian Federation.

This does not take into account income, the list of which is given in Art. 251 Tax Code of the Russian Federation, and dividends, if taxes are withheld from them by tax agents.

IN paragraph 1 clause 8 art. 250 Tax Code of the Russian Federation It is established that non-sales income includes income in the form of gratuitously received property (work, services) or gratuitously received property rights, with the exception of the income specified in Art. 251 Tax Code of the Russian Federation. According to pp. 11 p. 1 of this article, when determining the tax base, income in the form of property received is not taken into account Russian organization free of charge:

– from an organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;

– from an organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving organization;

– from an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of this individual.

note: received property is not recognized as income for tax purposes if, within a year from the date of its receipt (except for cash), it is not transferred to third parties.

A taxpayer who has received free of charge property that is not depreciable, work or services, when taxed, must assess the income related to them based on market prices determined taking into account the provisions Art. 40 Tax Code of the Russian Federation. The valuation should not be lower than production (purchase) costs. This is stated in para. 2 clause 8 art. 250 Tax Code of the Russian Federation. If depreciable property is acquired free of charge, then income must be assessed based on market prices determined taking into account the provisions Art. 40 Tax Code of the Russian Federation, but not lower than those established in accordance with the standards Ch. 25 Tax Code of the Russian Federation. Information on the prices of property (work, services) received free of charge can be confirmed either with documents or by conducting an independent assessment.

Let us note that if the transfer of property or property rights is of an investment nature (contribution of the founder to the authorized capital, contribution of a participant under a simple partnership agreement, etc.), then there is no need to talk about gratuitous transfer in this case. The transfer of property on condition of return (provision of credit or loan) cannot be considered gratuitous.

The Civil Code establishes some restrictions for concluding a gift agreement. Thus, donation is prohibited between commercial organizations. An exception is when the value of the gift does not exceed 5 minimum wages. This is stated in clause 4 art. 575 Civil Code of the Russian Federation. But if one of the parties is a non-profit organization or an individual, then the gift agreement can be concluded completely freely.

Loan agreement

Often, the gratuitous transfer of property is carried out without transfer of ownership, but for a certain period. In this case, a free use (loan) agreement is concluded. Does the receiving party need to account for income? Yes need. This position was expressed by the Ministry of Finance in lettersfrom17.02.200 6 № 03-03-04/1/125 And from19.04.200 6 № 03-03-04/1/359 . The Presidium of the Supreme Arbitration Court of the Russian Federation also agrees with her, clause 2 of Information letter dated December 22, 2005 No. 98 expressed a similar approach.

Question: The company is on the simplified tax system and has entered into a free use agreement non-residential premises. In this case, does the LLC have an object of taxation for the purposes of applying Ch. 26.2 Tax Code of the Russian Federation? If it occurs, then to what extent?

In accordance with clause 1 art. 346.15 “Procedure for determining income” of the Tax Code of the Russian Federation taxpayers, when determining the object of taxation, along with income from sales, determined in accordance with Art. 249 Tax Code of the Russian Federation, also take into account non-operating income, determined in accordance with Art. 250 Tax Code of the Russian Federation. This does not take into account income provided Art. 251 Tax Code of the Russian Federation.

In this situation, the organization uses the property on the basis of a loan agreement. Clause 1 of Art. 689 Civil Code of the Russian Federation it is provided that 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. In accordance with clause 2 of the specified article, the rules on the lease agreement are applied to the agreement for gratuitous use.

When receiving property under a free use agreement, the organization receives the right to use this property free of charge. Taking into account the above, for profit tax purposes, the receipt of property for free use should be considered as the gratuitous receipt of property rights. Income in the form of gratuitously received property rights is subject to inclusion in the non-operating income of the borrower on the basis clause 8 art. 250 Tax Code of the Russian Federation.

When receiving property (work, services) free of charge, income assessment is carried out based on market prices determined taking into account Art. 40 Tax Code of the Russian Federation, but not lower than determined in accordance with Ch. 25 Tax Code of the Russian Federation residual value - for depreciable property and not less than production (purchase) costs - for other property (work performed, services provided). Information on prices must be confirmed by the taxpayer - the recipient of the property (work, services) documented or by conducting an independent assessment.

Installed clause 8 art. 250 Tax Code of the Russian Federation the principle of determining income when receiving property free of charge, which consists in its assessment based on market prices determined taking into account Art. 40 Tax Code of the Russian Federation, is also used when assessing property rights, including the right to use a thing. Thus, a taxpayer who received property for gratuitous use under an agreement includes in non-operating income income in the form of a gratuitously received right to use the property, determined on the basis of market rental prices for identical property.

This conclusion is confirmed in paragraph 2 of the Review of Permission Practices arbitration courts cases related to the application of certain provisions of Chapter. 25 Tax Code of the Russian Federation ( Information mail Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98).

Interest-free loan

Sometimes organizations receive interest-free loans. In this situation, accountants very often have a question: is it necessary to tax the material benefits received from saving on interest? Let's try to figure it out.

Subclause 8, clause 1, art. 250 Tax Code of the Russian Federation classifies as non-operating income income in the form of gratuitously received property (work, services) or property rights, except for the cases specified in Article 251 of this Code. If a taxpayer received an interest-free loan, does he receive an economic benefit from the free use of the funds received? If yes, then should he include it in the tax base?

The concept of gratuitously received property (work, services) for the purposes of calculating income tax is given in clause 2 art. 248 Tax Code of the Russian Federation: property (work, services) or property rights are considered received free of charge if the receipt of this property (work, services) or property rights is not associated with the occurrence of an obligation on the recipient to transfer property (property rights) to the transferor (perform work for the transferor, provide the transferor with services to the person).

Hence, important factors gratuitous transfer are the transfer of ownership to the donee and the absence of a counter-obligation from the donee. According to tax officials, expressed in letters, the taxpayer does not generate income when receiving an interest-free loan. For example, from Letters of the Federal Tax Service for Moscow dated November 3, 2004 No. 26-12/71407 it follows that the temporary use of borrowed funds under an interest-free loan agreement is not considered as the basis for the day the organization’s non-operating income arises in the form material benefit from saving on interest. A similar point of view was expressed in Letter of the Department of Tax Administration for Moscow dated February 27, 2004 No. 04-23/3244/G557 “On income tax”.

But often tax inspectors recognize the emergence of material benefits for the borrower and demand that they be taxed, which is confirmed by arbitration practice. In their opinion, an interest-free loan is a gratuitous service, and the taxpayer receives non-operating income in the form of material benefits from savings on interest. The amount of benefit must be determined by the amount of interest accrued based on the refinancing rate established by the Central Bank of the Russian Federation during the period of use of borrowed funds.

You can argue with fiscals. In order to show the shortcomings of their position, let us focus on two points. First, let’s ask ourselves: can an interest-free loan be considered a gratuitous service? Services are provided under a contract for the provision of paid services ( Ch. 39 Civil Code of the Russian Federation). In accordance with clause 1 art. 779 Civil Code of the Russian Federation under a contract for the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

The concept of service is given in clause 5 art. 38 Tax Code of the Russian Federation: it recognizes activities, the results of which do not have material expression, are sold and consumed in the process of carrying out this activity.

Relations under the interest-free loan agreement are regulated Ch. 42 “Loan and Credit” of the Civil Code of the Russian Federation. According to clause 1 art. 807 Civil Code of the Russian Federation under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality .

According to clause 1 art. 809 Civil Code of the Russian Federation The lender has the right to receive interest from the borrower on the loan amount, but is not obligated to do so. Otherwise (free of charge) may be provided by law or contract.

Based on the foregoing, we can conclude that the relationship under the loan agreement does not contain signs of a service. It should be noted that the highest court also proceeds from the need for a clear distinction between these two contractual types. The Presidium of the Supreme Arbitration Court of the Russian Federation voiced its approach to this problem Resolution dated 03.08.2004 No. 3009/04. A similar point of view was expressed tax authorities. Thus, UMNS for the city of Moscow Letter from27.02.200 4 No. 04-23/3244/G557 indicated: civil legislation does not consider the payment of interest under a loan agreement as payment for services rendered, distinguishing between an agreement for the provision of services and an agreement for the transfer of funds under a loan agreement.

Now let's ask one more question: can the material benefit from saving on interest for using an interest-free loan be recognized as income for tax purposes? The Tax Code recognizes as income economic benefit in monetary or in kind, taken into account if it is possible to assess it to the extent that such benefit can be assessed and determined in accordance with the chapters “Tax on personal income”, “tax on profit (income) of organizations...” ( clause 1 art. 41 Tax Code of the Russian Federation). However Ch. 25 The code does not consider the material benefit from savings on interest for the use of borrowed funds as income subject to taxation and, accordingly, does not contain rules for its recognition and accounting. Consequently, the material benefit in question cannot be recognized as income for tax purposes.

In addition to the above, we note that, in accordance with pp. 10 p. 1 art. 251 Tax Code of the Russian Federation income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of registration of borrowings, including securities on debt obligations), as well as funds or other property received to repay such borrowings.

Despite the fact that some fiscal authorities are trying to tax the economic benefits of interest-free loans, arbitration practice clearly resolves the issue in favor of taxpayers. Thus, the FAS Volga District in Resolution dated January 18, 2006 No. A57-3029/05-7 pointed out that Chapter 25 of the Tax Code of the Russian Federation “Tax on profit (income) of organizations” does not provide for such a form of economic benefit as savings on interest, and does not establish the procedure for its determination.

Thus, an interest-free loan as an obligation obliging the borrower to return the funds received under the loan agreement is not considered an object of income taxation.

Similar conclusions were reached by other courts. Thus, taxpayers, in the event of disagreements with tax authorities regarding the taxation of loans, have a real chance of proving their case in court and winning the dispute.

When the article was published, the financial department issued a letter in favor of the taxpayer. Letter dated 04/02/2007 No. 03-11-04/2/78: due to the fact that Art. 250 of the Code does not provide for the inclusion in non-operating income of taxpayers of amounts of material benefits under interest-free loan agreements; organizations applying the simplified taxation system should not determine the amounts of material benefits under such agreements.

Accounting and taxation of property received free of charge

With the introduction of Chapter 25 of the Tax Code of the Russian Federation on January 1, 2002, the procedure for reflecting transactions for the gratuitous receipt of property in accounting and tax accounting is different.

IN tax legislation For the first time, Article 248 of the Tax Code of the Russian Federation provides a definition of property received free of charge. According to paragraph 2 of the article, property (work, services) or property rights are considered received free of charge if its receipt is not associated with the recipient having an obligation to transfer other property, perform work, or provide services to the transferor.

This clarification of the concept of property received free of charge allows the taxpayer to write off accounts payable With expired limitation period, and do not consider it as property received free of charge.

Let us remind you that the gratuitous transfer of any thing into the ownership of an organization must be formalized by a gift agreement (Clause 1 of Article 572 of the Civil Code of the Russian Federation). When completing a transaction, it should be taken into account that between commercial organizations a gift cannot exceed five minimum wages established by law, with the exception of ordinary gifts. In this case, the gift agreement may be declared invalid by the court (Article 166 of the Civil Code of the Russian Federation).

Initial cost

The initial cost of property received free of charge in accounting means the current market value on the date the object was accepted for accounting (clause 9 of PBU 5/01 “Accounting for inventories”, clause 10 of PBU 6/01 “Accounting for fixed assets” and PBU 14/2000 "Accounting for intangible assets"). Moreover, PBU 5/01 defines the current market value for accounting purposes as the amount of funds that can be received as a result of the sale of these assets.

It should be noted that the cost of delivery and bringing into a condition suitable for use increases book value property received free of charge (clause 12 PBU 6/01, clause 8 PBU 14/2000, clause 11 PBU 5/01).

In tax accounting, the assessment of property received free of charge for an organization is carried out based on market prices determined taking into account the provisions of Article 40 of the Tax Code of the Russian Federation, but not lower than the residual value if it is depreciable property (previously clause 2.7 of the Instruction of the Ministry of Taxes of Russia dated June 15, 2000 N 62), and production (purchase) costs - by goods (work, services).

In addition, information on prices must be confirmed by the taxpayer-recipient of the property (work, services) documented or through an independent assessment (clause 8 of Article 250 of the Tax Code of the Russian Federation).

As you can see, the requirements for accounting and tax accounting are generally similar. Moreover, accountants have previously confirmed market price, using official sources of information, including those obtained from regional statistical authorities, stock quotes, independent assessment. In accounting, these requirements are established by clause 23 of the Regulations on accounting and financial reporting in the Russian Federation (Order of the Ministry of Finance of the Russian Federation dated July 29, 1998 N 34n).

However, unlike tax accounting, price limits are not established by accounting regulations.

In accounting, in accordance with paragraph 8 of PBU 9/99 “Income of the organization,” property received by the organization free of charge is recognized as its non-operating income. The cost of assets received free of charge until they are used for the needs of the organization is reflected in deferred income. Non-operating income is recognized as these assets are released for the purposes of the organization's activities.

In tax accounting, property transferred to the taxpayer free of charge also refers to non-operating income of the organization (Article 250). But, in addition, its value is immediately taken into account when calculating the tax base (accrual basis).

The exception is targeted revenues, as well as property received by budgetary institutions by decision of executive authorities at all levels;

equipment received by state (non-state) and municipal educational institutions, used exclusively for educational purposes (until January 1, 2002, this norm was not established, but was partially applied); funds received in the form of gratuitous assistance (assistance) in the manner established by the Federal Law on gratuitous assistance (assistance) and other special cases. Article 4 of this law establishes that in case of misuse of gratuitous assistance, its recipient is obliged to accrue and pay to budgets of all levels, as well as transfer the amount of penalties for late payment income tax.

Paragraph 11 of Article 251 of the Tax Code of the Russian Federation states that property received by a Russian legal entity - a taxpayer from:

An organization that owns at least 50 percent of the authorized capital of the receiving party;

Organizations that are at least 50 percent owned by the receiving party;

An individual who owns at least 50 percent of the authorized capital of the receiving organization. This paragraph changes the previously existing procedure, when funds received from individuals were not included in the tax base.

In this case, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the specified property (except for cash) is not transferred to third parties.

If these conditions are met, there is no taxable income tax base.

Example 1.

In March 2002, a commercial organization received a computer valued at 12,000 rubles under a gift agreement from an individual. organization consists of 60% of the contribution of this individual. At the time of commissioning, its useful life is determined to be 36 months. The linear method of calculating depreciation is used in accounting and tax accounting.

The following entries will be made in accounting:

Debit 08 Credit 98-2

- 12,000 rub. - the computer received free of charge was accepted for accounting,

Debit 01 Credit 08

- 12,000 rub. - the computer is put into operation,

Debit 20 Credit 02

- 333.33 rub. (RUB 12,000 x 1: 36 months) - depreciation accrued (data in tax registers will coincide),

Debit 98-2 Credit 91-1

- 333.33 rub. - part of the income of future periods is reflected in non-operating income as depreciation is calculated.

In tax accounting, the conditions specified in paragraph 11 of Article 251 of the Tax Code of the Russian Federation are met. Therefore, the amount of 12,000 rubles is not subject to income tax if the computer is not transferred to third parties within a year.

Example 2.

The computer was received from the founder - an individual whose contribution to the authorized capital is 49 percent.

The amount of 12,000 rubles is included in non-operating income using the accrual method. According to Article 271 of the Tax Code of the Russian Federation, the date of receipt of income is the date of signing by the parties of the act of acceptance and transfer of property (work, services) received free of charge.

Example 3.

The computer is disposed of before 1 year has passed from the date of receipt.

The tax base in this case arises not at the time of disposal of the computer, but at the time of its receipt (Article 271 of the Tax Code of the Russian Federation). Therefore, the tax must be paid at the time of signing the act of receipt.

Depreciation

Depreciation of fixed assets and intangible assets received free of charge in accounting is accrued in one of the ways specified in PBU 6/01 or 14/2000, and enshrined in accounting policy organizations.

Is property received free of charge depreciated in tax accounting? On the one hand, yes, since depreciable property for tax purposes includes property owned by the taxpayer and used by him to generate income (clause 1 of Article 256 of the Tax Code of the Russian Federation). But on the other hand, there is nothing to depreciate on property received free of charge. Why? Because a situation may arise when initial cost property received free of charge will be zero. Let's explain.

The initial cost of depreciable property is formed in accordance with Article 257 of the Tax Code of the Russian Federation. It says that the cost of a depreciable fixed asset is defined as the sum of the costs of its acquisition, construction, manufacture and bringing it to a state in which it is suitable for use. Taxes included in expenses are excluded from the cost. Thus, if an organization does not have the costs of bringing a gratuitously received fixed asset to a condition in which it is suitable for use, the initial cost of such a fixed asset for depreciation purposes will be zero.

It turns out that we define the amount of income when receiving a fixed asset free of charge as the market value of such a fixed asset, but for the purpose of calculating depreciation, the initial cost of the object is zero.