The Leasing Law allows the parties to a leasing transaction to choose which of them will take into account the leased property - the leasing company or the lessee. The author of the article analyzes tax consequences both options, and the representative tax service and an independent lawyer express their opinions on the issues under consideration.
Accounting
In order to understand how the taxation of participants in a leasing transaction depends on the choice of the balance holder of the property, let us consider what transactions arise in each case for the leasing company and the lessee.
If the leased asset is taken into account on the balance sheet of the leasing company, then it adds the property to its balance sheet, charges depreciation, pays property tax, and takes the payments received into account as part of the proceeds from the sale of goods (works, services).
The lessee attributes the entire cost of leasing services to the cost of products (works, services) and reflects the leased asset on an off-balance sheet account.
If the leased asset is accounted for on the balance sheet of the lessee, the leasing company reflects the value of the transferred property as accounts receivable lessee, which is gradually written off when payments are received. The difference between the leasing value of the property and the costs of its acquisition is taken into account by the leasing company as deferred income. From each received leasing payment, the company's remuneration is allocated, that is, the amount in excess of the payment over the amount of compensation for investment costs on the property, which is accounted for as revenue.
The lessee brings the leased asset to the balance sheet according to the amount of payments 2, that is, at the cost of the leasing agreement, which includes investment costs and company remuneration and at the same time reflects accounts payable for the same amount. The lessee pays property tax and charges depreciation on the leased item, but the payments are not included in the cost of goods (work, services), but reduce accounts payable to the leasing company.
Taxation of parties to a leasing transaction
Let's consider issues directly related to taxation and possible risks for the parties.
Let us immediately note that the procedure for paying VAT by leasing participants does not depend on who accounts for the property. The amount of “input” VAT on it is accepted for deduction by the leasing company, which then charges VAT on the payments received, and the lessee accepts these tax amounts as deduction.
The choice of balance holder primarily affects the payment of property and profit taxes.
Balance holder - leasing company
IN Russian legislation The procedure for taxation of participants in a leasing transaction is quite clearly defined if the balance holder - This is a leasing company.
For the lessee, everything is simple: since the property is accounted for on an off-balance sheet account, the lessee does not pay tax on it and does not charge depreciation. Payments made to a company reduce its taxable income.
The company's taxation procedure is more complicated, but it is also understandable. The lessor pays property tax and charges depreciation, which is taken into account in tax accounting as an expense. The tax income of the lessor reflects the amount of lease payments.
Perhaps the main disadvantage of accounting for leased property in a company occurs when the lessee has a tax benefit. Since the company is a property tax payer, it takes into account the costs of this tax in its remuneration and reimburses them through payments from the lessee. Thus, the lessee pays the property tax to the state in full and is deprived of his legal benefits.
Balance holder - lessee
Unlike the previous option, taxation in a situation where the leased asset is taken into account by the lessee is practically not regulated. In this regard, many controversial issues arise. Let's look at the main ones.
Property tax. Lessee in in this case records the leased asset on the balance sheet according to total amount leasing payments, that is, in addition to the cost of the property itself, the margin (income) of the organization is also depreciated. Since the tax is paid by the lessee, the amount in this case is greater than what the company would have paid if the property had been included on its balance sheet (of course, provided that the lessee does not have a tax benefit). Consequently, with the same amount of remuneration to the company, the lessee's costs are usually higher if the property is taken into account on his balance sheet.
In addition, there is another problem. It turns out that the same leased asset has two “initial costs”. One is formed by the leasing company, the other by the lessee (it differs from the first by the amount of the lessor's margin). If the leasing agreement is successfully completed, then this circumstance does not cause any special difficulties. But if the contract is terminated ahead of schedule and the property is returned to the company, then the question arises of correctly determining the residual value of the leased asset, at which the company must record the property on its balance sheet. Today this issue is not clearly resolved in any regulatory document. And since the residual value of the property is a taxable base, there is a high probability of additional tax risks for the leasing company.
Income tax. The Tax Code of the Russian Federation does not provide for a special procedure for forming tax revenue leasing company if the leased asset is included in the balance sheet of the lessee. In other words, the company's income is the full amount of payments. At the same time, sub. 5 p. 1 art. 270 of the Tax Code of the Russian Federation in this case prohibits it from calculating depreciation on leased property. It turns out that the company cannot reduce the received revenue by the amount of reimbursement of the cost of the leased asset and, if you follow the norms of the Tax Code of the Russian Federation literally, the lessor must pay income tax both on his remuneration and on the amount of reimbursement of the cost of the leased asset.
In practice, leasing companies, at their own peril and risk, either recognize income only in part of their remuneration, or reflect as expenses investment costs for the acquisition of the leased asset according to independently established rules. However, it is possible that in such situations claims may be brought against companies by tax authorities.
Which balance holder option to choose
From the analysis it follows that when choosing the “balance holder - lessee” option, the leasing company bears significant tax risks due to imperfect tax legislation. Certain risks also increase for the lessee, but they are associated primarily with a more complex accounting scheme compared to the other option and, accordingly, more high probability making mistakes. In addition, when using this scheme, the lessee's expenses may be greater than when accounting for property on the company's balance sheet with the same remuneration due to an increase in tax.
- Example
Let's assume that the value of the property is 6,000 thousand rubles. excluding VAT. The lease agreement is valid for 12 months.
The leasing company's remuneration is 600 thousand rubles. excluding VAT.
Let's consider the change in the lessee's expenses depending on the choice of the balance holder.
I. Balance holder - company.
Property tax will be calculated based on its initial cost at 6000 thousand rubles. and monthly depreciation - 500 thousand rubles. The tax amount at a rate of 2.2% will be 66 thousand rubles.
The amount of leasing payments for the year will be equal to 6666 thousand rubles. (6000 thousand + 600 thousand + 66 thousand). These will be the lessee's expenses.
II. The balance holder is the lessee.
In this case, the amount of payments will be 6,600 thousand rubles. (6000 thousand + 600 thousand). In addition, the lessee will independently pay the tax, which will be determined from the initial cost of 6,600 thousand rubles. and monthly depreciation in the amount of 550 thousand rubles. (6600 thousand rubles: 12 months). The tax amount at a rate of 2.2% will be 72.6 thousand rubles.
Consequently, the lessee's expenses will be equal to 6672.6 thousand rubles. (6600 thousand + 72.6 thousand).
However, the lessee should not draw clear conclusions about which method of accounting for the leased asset on the balance sheet is more profitable. It is necessary to carefully study the terms of the contract offered by companies (payment schedule, etc.), carefully calculate the financial effect of the leasing transaction and the risks associated with it.
It is more profitable to take into account the leased asset on the balance sheet of the leasing company
Marina Romanova, Advisor to the Tax Service of the Russian Federation, III rank
According to current edition According to the Tax Code of the Russian Federation, it is more profitable to take into account the leased asset on the company’s balance sheet. This is due to the fact that when accounting for leased property on the lessee’s balance sheet, the lessor cannot reduce income in the form of payments for the costs of acquiring this property, with the exception of interest on the loan and insurance payments on it.
The author quite correctly drew attention to this circumstance. All costs for the acquisition of depreciable property can be included in expenses taken into account for tax purposes only in the form depreciation charges. Since when accounting for property on the lessee's balance sheet, the company is deprived of the right to charge depreciation, its expenses in the form of reimbursement of its value cannot be attributed to the reduction of the tax base for income tax.
The Russian Tax Ministry has a formal approach to this issue: tax code The Russian Federation does not directly provide for such expenses for a leasing company if the property is accounted for on the balance sheet of the lessee, therefore, the company will have to pay income tax on the entire amount of payments (minus interest on the loan, insurance payments and other expenses recognized for tax purposes in Chapter 25 of the Tax Code RF).
This circumstance should be taken into account by both lessors and lessees, since increased tax expenses and the risks of the organization will undoubtedly be reflected in an increase in the transaction amount.
“The norms of Chapter 25 of the Tax Code of the Russian Federation need to be seriously improved”
Rustem Akhmetshin, partner law firm"Pepelyaev, Goltsblat and partners"
The norms of Chapter 25 of the Tax Code of the Russian Federation concerning tax accounting In my opinion, the income and expenses of the leasing company need to be seriously improved. From the point of view of civil law, the choice of the balance holder of the leased asset does not affect the relationship between the lessor and the lessee. However, despite the fact that the balance holder of the property is determined by agreement of the parties and his choice does not entail additional rights or obligations for the parties to the transaction, in tax legislation for unknown reasons, such a choice is given fundamental importance. The amount of company income in tax accounting does not depend on whose balance sheet the leased property is listed on. But the lessor has the right to charge depreciation only if he is its balance holder.
Taxes must have economic justification, that is, collected from those who are able to pay them. In the case under consideration, the fact of accounting for property on the lessee’s balance sheet does not affect the economic benefits and losses of the parties. Therefore, there should be no differences in the taxation procedure for a company depending on the choice of the balance sheet holder. Moreover, the lessee's expenses associated with the leasing transaction are the same in both cases and equal to the amount of payments. I believe that it would be more correct to provide in Chapter 25 of the Tax Code of the Russian Federation the right of the lessor in both cases to charge depreciation on property in tax accounting.
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1 Article 31 Federal Law dated October 29, 1998 No. 164-FZ “On financial lease (leasing)”.
2 This statement is not directly stated in the order of the Ministry of Finance of Russia dated February 17, 1997 No. 15 “On the reflection in accounting of transactions under a leasing agreement,” which regulates the accounting procedure for a leasing transaction, but, according to many experts, such a conclusion indirectly follows from the provisions of this order.
The situation is this: the house in which a relative lives, he is registered there, used to belong to the Communication Center, two years ago the Communication Center was liquidated, now it is OJSC CenterTelecom - he did not take ownership of this house, but is the balance holder, i.e. it turns out that a house between heaven and earth and it has no owner at all? Nobody maintains the house, utility bills are not paid, there is simply no one to pay them. Who should be attracted to take ownership of the house, urban settlement? After all, it is impossible, if necessary, even to take an extract from the house register, there is simply no one to write it! Although home Book located in the branch of OJSC CenterTelecom.
Elena Alexandrovna, it is very possible that you are being misled.
In this case, most likely the balance holder is already the municipal authorities.
Upon liquidation of the legal entity of the owner, its housing stock is obliged to transfer to the municipal housing stock. Very often, in such situations with owners, utility services mislead apartment owners so that they do not privatize the housing. Try again to check the status of the housing stock in the municipality.
Comments
I quote: “Balance holders are management organizations entrusted with managing the owner’s property...Balance holders are enterprises or institutions to which the owner has transferred his property for management, as well as joint stock companies, in which with the participation of the owner’s capital. The word “balance holder” comes from the accounting term “to put property on the balance sheet,” i.e. A balance holder is an organization that has placed the owner’s property on its balance sheet. The term balance holder is now outdated and will be replaced by the term copyright holder by Decree of the Government of the Russian Federation of July 16, 2007 N 447. Who can be the owner of the property? As the owner of the property are provided Russian Federation, subject of the Federation (republic, territory, region), municipality (district in the region, city of regional subordination, settlement, village council, etc.). " Thus, if you are sure that CenterTelecom OJSC is the balance holder, then the owner is one of the above. First, contact the head of your municipality or the Property Committee (department, etc.). If this does not help, you will obviously have to search through federal authorities authorities, starting with the Russian Ministry of Press and Information.
★★★★★★★★★★
To get started, contact the Office of the Federal Registration Service at the address: Orlikov Lane, building 3 (Krasnye Vorota metro station).
This is where the offices dealing with departmental housing are located (Ministry of Defense, Ministry of Atomic Energy, etc.). If they don't help, then at least clarify the situation.
There is a similar situation in the capital with Minatom houses - difficulties with privatization, difficulties with connecting to the Internet (while there are disputes around the houses, not a single provider can put equipment in the attic, because there is simply no one to conclude an agreement with...)
The term “balance sheet holder” is usually used in relation to a person (usually a legal entity) who, while not being the owner, takes into account on its own balance sheet property. That is, such property is reflected in the balance sheet in the Assets section in the amount determined according to the rules accounting.
Sometimes a balance holder is understood as any person who accounts for property on his or her balance sheet (including its owner).
The term “balance holder” is not defined in law.
Cases when the owner of property is one person, and it is taken into account on the balance sheet of another, are determined by law.
If the leasing agreement determines that the leased asset is taken into account on the balance sheet of the lessee, the Owner of the property (the leased asset) will be the Lessor, and the Balance Holder will be the Lessee.
Thus, until the end of 2014, Article 31 of the Federal Law of October 29, 1998 N 164-FZ “On financial lease (leasing)” determined that the leased asset transferred to the lessee under a leasing agreement is accounted for on the balance sheet of the lessor or lessee by mutual agreement. Since November 16, 2014, Article 31 has lost force (Federal Law of November 4, 2014 N 344-FZ), but in practice, often, the leased asset is taken into account under the agreement on the lessee’s balance sheet.
If, according to the agreement, the property is taken into account on the balance sheet of the lessor, then the Lessor will be both the owner and the balance holder of the leased asset.
Property under the right of operational management or economic management
Another case is organizations that own property on or on.
A state or municipal unitary enterprise owns property with the right of economic management (Articles 294, 295 of the Civil Code of the Russian Federation), but the owner of the property remains the state or municipality. In this case, such enterprises act as balance holders.
Institutions and state-owned enterprises own property in , while the owner of such property is another person (owner) (Article 296 of the Civil Code of the Russian Federation).
Example
Federal state-financed organization owns the building with the right of operational management.
The budgetary institution is the balance holder.
The Russian Federation (state) is the owner.
27.12.2019
Durable labor equipment (over 12 months). Fixed assets include buildings, machinery and equipment, structures and transmission devices, and vehicles.
The property right that an institution or state-owned enterprise has to the property assigned to them. An institution or a state-owned enterprise owns and uses this property within the limits established by law, in accordance with the goals of its activities and the purpose of this property. An institution or a state-owned enterprise disposes of this property with the consent of the owner of this property.
Thus, a law of a subject of the Russian Federation establishing the specifics of determining the tax base based on the value of real estate objects can be adopted only after the subject approves the results of the determination cadastral value property. Based on them the tax base is defined as the cadastral value of property in relation to individual species property, which includes administrative, business and shopping centers (complexes) and premises in them; non-residential premises, the purpose of which is in accordance with cadastral passports or documents technical accounting(inventory) provides for the placement of offices, retail facilities, public catering and consumer services facilities, or which are actually used for the placement of offices, retail facilities, public catering and consumer services facilities.
In accordance with paragraph 7 of Article 378.2 of the Tax Code of the Russian Federation, the body of the constituent entities of the Russian Federation no later than the 1st day of the next tax period for property tax, determines the list of relevant real estate objects, sends it to tax authorities by location immovable objects and publishes it on its own website or on the official website of a constituent entity of the Russian Federation.
Thus, if a constituent entity of the Russian Federation has adopted a regional law establishing the specifics of determining the tax base based on the cadastral value of real estate objects, then such objects are subject to taxation at the cadastral value. But subject to their inclusion in the List of real estate objects posted on the official website no later than January 1, 2014.
Real estate objects not included in the List are subject to taxation according to the old rules - based on average annual cost property (clause 1 of article 375 of the Tax Code of the Russian Federation).
Summarizing all that has been said, financiers provide the taxpayer with their summary: if a building owned by a company is not included in the approved List of Real Estate Objects, then this property is subject to taxation in 2014 based on the tax base, defined as its cadastral value. But if the building is not included in this List, then the tax base in relation to of this object determined in accordance with paragraph 1 of Article 375 of the Tax Code of the Russian Federation.
And the second ones are more specific...
It would seem that the Ministry of Finance of Russia spoke very clearly: the special procedure for property with the cadastral value of real estate objects included by the constituent entities of the federation in a special list applies exclusively to the owners of such property. This conclusion of officials is based on the following legal norms.
Thus, subparagraph 3 of paragraph 12 of Article 378.2 of the Tax Code of the Russian Federation states: “an object of real estate is subject to taxation by the owner of such property, unless otherwise provided by this chapter.” And the next, paragraph 13 of the same article, again names organizations as taxpayers - owners of real estate objects, the tax base for which is determined as the cadastral value.
However, the next legislative changes again forced the taxpayer to return to consideration of this issue. This time, financiers were asked about the application of Article 2 of Law No. 307-FZ in 2014 in connection with the entry into force of paragraph 7 of Article 2 of Federal Law dated 02.04.14 No. 52-FZ on January 1, 2015 (hereinafter referred to as Law No. 52 -FZ). What confused the taxpayer?
The fact is that paragraph 7 of Article 2 of Law No. 52-FZ introduced amendments to paragraph 1 of Article 374 of the Tax Code of the Russian Federation. Previously, this paragraph read as follows: “objects of taxation for Russian organizations movable and immovable property is recognized (including property transferred for temporary possession, use, disposal, trust management included in joint activities or received by agreement), taken into account on the balance sheet as fixed assets in the order for accounting, unless otherwise provided by Articles 378 and 378.1 of the Code.”
That is, we are talking about the fact that in general case Payers of property tax are the holders of real estate.
However, now Article 378.2 of the Tax Code of the Russian Federation has been added to the list of exceptions.
These changes come into force no earlier than one month from the date of official publication of the law and no earlier than the 1st day of the next tax period for the corresponding tax, that is, from January 1, 2015, since the tax period is a year.
And so the taxpayer’s question arose: does this mean that in 2014, holders of the balance sheet of real estate objects specified in subparagraphs 1 and 2 of paragraph 1 of Article 378.2 of the Tax Code of the Russian Federation, and included in a special List, must also pay property tax from them from the cadastral cost?
From a formal point of view, posing such a question is quite legitimate. However, financiers hastened to reassure the concerned taxpayer. That's what they said.
Indeed, according to general rule, on the basis of paragraph 1 of Article 373 and paragraph 1 of Article 374 of the Tax Code of the Russian Federation, property tax payers are recognized as property balance holders. Meanwhile, by virtue of the provisions of subparagraph 3 of paragraph 12 and paragraph 13 of Article 378.2 of the Tax Code of the Russian Federation, the specifics of taxation of individual real estate objects (based on the cadastral value) apply to organizations that own real estate objects.
Consequently, the Ministry of Finance of Russia once again draws its conclusion that in relation to organizations of balance sheet holders that are not owners, the provisions of Article 378.2 of the Tax Code of the Russian Federation do not apply. And therefore, financiers propose to consider changes to paragraph 1 of Article 374 of the Tax Code of the Russian Federation as clarifying.
Thus, now all balance holders of real estate, for which payment of property tax is expected from its cadastral, and not from book value, can be completely calm: they have not been taxpayers in relation to this property since January 1, 2014. Whom may this concern?
These could be, for example, lessees of real estate, if, according to the terms of the leasing agreement, such objects are taken into account on their balance sheet. In such a situation, the payer of property tax on the cadastral value will be the lessor, despite the fact that this property is not listed as part of its fixed assets (that is, on the balance sheet).
Similarly, state-owned enterprises should not be recognized as property tax payers. unitary enterprises, if they received them for economic management, as well as any other balance holders of such real estate who are not its owners, but only use the object with the right of operational management, temporary possession, etc.
Sergey Ryumin,
Manager of LLC "CAF "INVESTAUDITTRAST""
Our cities are large, and it is difficult for one administration to keep track of everything, which is why the city is divided into territories. Each territory is assigned to a separate balance holder. Balance holder - owner or entity, which, under an agreement with the owner, contains the corresponding property on its balance sheet, and also maintains accounting, statistical and other provided for by law reporting, carries out calculations of funds necessary for the timely implementation of capital and current repairs and maintenance, and also ensures the management of this property and is responsible for its operation in accordance with the law.
In other words, the owner is the city, and the property is managed and maintained by a certain state unitary enterprise or municipal unitary enterprise.
Now let's move on to the problem. I think there is no need to dwell too much on how these enterprises manage their property: most often everything is very bad (broken sidewalks, dirt instead of a lawn, and the like are the most common problems).
Another problem is that sometimes city property is divided in very strange ways. For example, in Moscow I know that sometimes two neighboring houses and their local area divided between the state unitary enterprises of the prefecture and the housing and communal services department, that is, such houses may even have one yard, in fact, but according to the standards, they require at least separate janitors, and at a maximum, completely separate documentation.
Often, precisely because of such situations, seemingly common yards are separated by a fence: 
sorry for the quality
In general, in terms of efficiency, everything is bad. How can this be changed?
As they say, everything ingenious is simple. You just need to select balance holders through competitions among private firms. Why? But because, unlike public sector employees, who are shackled by bureaucracy, all sorts of restrictions and a banal desire not to work (because they will not get anything for it), private employees will have more freedom of action and fear of losing a contract.
That is, among the advantages for private owners:
- no hard ones legal restrictions, there are only contractual obligations;
- flexible economy and less hassle with the budget;
- an incentive to reduce costs and increase efficiency, for example, instead of maintaining 10 janitors with brooms for 5 yards, they would rather hire five, but give each a street mobile vacuum cleaner;
- fear of breaking the contract. If the contract is written correctly and a control mechanism is established, then it will be difficult for the private owner to relax, and there will be fewer potholes on the roads;
- the city to get rid of non-core assets. Roughly speaking, instead of keeping 1000 employees on the budget, it will be possible to leave 100 people who will be involved in coordination.
- how the competition will be organized, if its goal is to increase efficiency and select a good balance holder, then he will be chosen, and if not, then such a private owner will not be far from the SUE/MUP;
- how control will be established. The best control is public (for example, through an application on the phone), because the resident is more interested in normal service than anyone else.
Well, to confirm my words, in first world countries, as a rule, this is exactly the system of city property management that operates. The most striking example (and the first one that comes to mind) is the management of transport companies, in whose hands are the rolling stock, ticket menu, service, routes, and so on, while the city monitors compliance with safety requirements, schedules, and other terms of the contract. 
In Singapore, bus routes are served by 2 transport companies
I hope that someday in Russia they will begin to implement similar management systems on a large scale.