Researcher L.E. Basovsky writes that "rent as a type of entrepreneurial activity provides for the transmission by one side (landlord) to the other party (leater) for the fee for temporary possession and use or temporary use of property in the form of non-current assets"
Special attention should be paid to the responsibilities and responsibilities of the parties during the operation of the Tenant facility. In accordance with the current legislation, the right to lease on real estate is subject to state registration, even if the participants did not provide for this in the lease agreement.
Rent as an object of accounting is current and long-term.
Current rental is regulated by the lease agreement concluded by the leaser with the tenant. The term of such a lease cannot be more than one year. The procedure for entering into a lease agreement, its content and property rights of the parties are regulated by ch. 34 of the Civil Code. In the absence of an indication in the Rental Treaty, it is believed that such an agreement is concluded indefinitely. In such a situation, each of the parties on the basis of its interests has the right to refuse the contract at any time under one condition: the initiator of the termination of the contract should inform the other participant no later than one month, and during the lease of real estate - for three months. At the same time, the law or contract may establish a different period for preventing the termination of the lease agreement concluded indefinitely.
For certain types of rent, as well as the lease of certain types of property, the law is allowed to establish a maximum (limit) term of the contract. In such a situation, if the lease term in the contract is not specified and none of the parties abandoned its termination before the expiration of the deadline provided for by the law, the execution of the contract is suspended after the expiration date.
The conclusion of the contract for a period exceeding the limit is considered as a conclusion on the deadline.
When the costs are distributed to inseparable improvements of the leased object, three options for reflecting such costs in the current accounting are possible.
The first option provides for compensation of cost-generated costs by landlord by credit rental.
The second option takes into account the reimbursement of the tenant by the landlord of expenses to improve the lease.
The third option recognizes the costs produced as direct losses of the tenant. This is possible in a situation if he carried out such costs without coordination with the owner of this property.
In a situation where the rent is rented by a tenant under the terms of a delay of payment, the above VAT amount is taken to deduct after the actual repayment of the obligations of the tenant in front of the landlord.
LLC "X" has an heated warehouse with an area of \u200b\u200b2500 square meters. The meter that is currently not used. The company can be leased on the following conditions:
- - rent taking into account utility payments 500,000 rubles. in year;
- - maintenance heated warehouse is carried out by a tenant;
- - Property remains on the balance of our company.
The calculation of additional income from rental delivery is presented in Table 3.13.
Table 3.13. Calculation of additional income from rental
As Table 3.13 shows, net income from renting a warehouse room will be 360,000 rubles. in year.
The change in the main economic indicators after the event was presented in Table 3.14.
Table 3.14. Major Economic Indicators after the event
Thus, the data of the table 3.14 indicate that due to the introduction of an activity for renting real estate LLC "X" the profitability of production will increase by 0.027%. Four-capacity after the implementation of the event will be 0,908 rubles. / Rub., Which is less than 0.029 rubles. / Rub., Accordingly, the foundation will increase the same indicators by reaching the level of 1,101 rubles / rub. In turn, sales profitability will increase by 0.031%, reaching 0.037% against 0.006% before the implementation of the event.
As a result of the activities carried out, we calculate the general change in the main indicators of profitability of LLC "X"
Table 3.15 shows the cost calculations before the implementation of the proposed activities and after, and the total amount of savings is calculated.
Table 3.15. Indicators of the work of LLC "X" before and after the introduction of events
|
Name of the indicator |
Before introducing events |
After the introduction of events |
Changes +/- |
|
Cost, rub. |
|||
|
Profit enterprise, rub. |
|||
|
Company revenue, rub. |
|||
|
Net profit, rub. |
|||
|
Profitability of production,% |
|||
|
Fondarity, rub. / Rub. |
|||
|
Fondo studios, rub. / Rub. |
|||
|
Cost profitability,% |
|||
|
Profitability Sales,% |
Based on the data presented in Table 3.15 on the change in the profitability indicators of LLC "X" after the implementation of the activities will be a schedule (Figure 3.2).
Fig. 3.2. Profitability indicators of LLC "X" before and after the introduction of events
Thus, the profitability of sales of LLC "X" will increase by 0.219% and reaches a level of 0.225% against 0.006% before the implementation of activities. The profitability of production will also increase after the introduction of activities - by 0.25% and will be 0.263% against 0.013% before the implementation of the event.
Thus, it sees from the data presented that profitability indicators at the expense of the proposed activities will increase significantly and will allow the company to develop and generate income.
The main responsibility of the tenant in accordance with Art. 614 of the Civil Code of the Russian Federation is the timely depositing of the rent for the use of property in size and the timing provided for by the lease agreement.
The rent is set in the form:
- defined in the solid amount of payments made periodically or at the same time;
- the established share of the products obtained as a result of the use of rented property, fruits or income;
- providing a tenant of certain services;
- transfer by tenant to the landlord due to the treaty of things in the property or for rent;
- the arrangement of the tenant caused by the cost of improving leased property.
In the lease agreement, the parties may provide for various combination of listed forms of rent or other forms of rental. Most often, the rent is set by the parties to the lease agreement in the form of solid payments made periodically or at a time.
Under the lease agreement, several objects can be transmitted immediately, while the rent can be established both for all transferred property for rent as a whole and for each object separately. According to the author, it is preferable to install a rent for each leased object separately, which will avoid possible disagreements between the parties to the contract.
The delivery time is determined by the contract, and the parties may provide for any order of its introduction: monthly, quarterly, once a year, by making a pre-payment or delayed payment.
The size of the rent may vary by agreement of the parties in the deadlines provided for by the Treaty, but not more often than once a year, which is established by paragraph 3 of Art. 614 of the Civil Code. At the same time, the size of the rent may vary both in the direction of increasing and towards the decrease.
The tenant has the right to demand a renal reduction in the case of:
- if, due to the circumstances, for which it does not respond, the conditions for the use provided by the lease agreement, or the state of property deteriorated significantly;
- if the landlord is violated overhaul property courted;
- if the landlord has not warned the tenant about the rights of third parties to the property at the conclusion of the lease agreement.
In the event of a significant violation by the tenant, the landlord, guided by the landlord, guided by paragraph 5 of Art. 614 of the Civil Code of the Russian Federation, it is entitled to demand early submission of rent in the lessor-established period. At the same time, the landlord is not entitled to demand early making rent for more than two times in a row.
Rental accounting for the lessor. If the provision of property for rent is for the landlord the main activity, the rent coming from the tenant, according to Art. 249 Tax Code of the Russian Federation will refer to income from sales. Recall that the main activities are determined by the charter of the organization, where most often the delivery of property for rent is provided as a type of activity.
If the organization applies the accrual method provided for by Art for recognition of income and expenses. Art. 271 and 272 of the Tax Code of the Russian Federation, then in accordance with paragraph 1 of Art. 271 NK RF revenues are recognized in the reporting (tax) period in which they took place, regardless of actual admission money, other property (works, services).
For organizations providing a systematic basis for a temporary use fee and (or) temporary possession and use of their property, costs for such activities in accordance with PP. 1 p. 1 Art. The 265 Tax Code of the Russian Federation will be recognized by the costs associated with production and implementation.
The lease agreement may be provided for an uneven rental schedule. In this case, revenues in the form of rental payments are recognized as tax accounting, taking into account the principle of uniform recognition of income and expenses, regardless of their actual payment. At the same time, the monthly conclusion of acts of services rendered under the lease agreement for the purposes of conducting tax accounting Revenues in the form of rental payments is not required. Such a position is set forth in the letters of the Ministry of Finance of Russia dated 17.04.2007 No. 03-03-06 / 1/248, from 06.02.2007 No. 03-03-06 / 1/59, from 10.11.2006 No. 03-03-04 / 1 / 752.
Providing property for rent may not be the main activity of the organization. For example, if a production organization leases temporarily not used equipment or premises, for it, the provision of property for rent will not be the main activity. In this case, income from the delivery of property for rent on the basis of paragraph 4 of Art. The 250 Tax Code of the Russian Federation will be recognized as non-deactive income.
For non-realization income from the delivery of property for renting the date of income, the date of settlements is recognized in accordance with the terms of the contracts of contracts or the presentation of the taxpayer of documents serving the basis for the work of settlements, or the last day of the reporting (tax) period (clause 4 of Article 271 of the Tax Code of the Russian Federation) .
The costs of the maintenance of the property transferred under the Treaty (including depreciation on this property) are included in the composition of non-engineering expenses in accordance with paragraphs. 1 p. 1 Art. 265 NK RF.
Accounting for rental payments at the tenant. Rental payments for leased property for income tax purposes relate to other expenses related to production and implementation (PP. 10 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation).
For documentary confirmation of expenses on the payment of rental payments, documents are required to be issued in accordance with the requirements of the legislation. Russian Federation, including a lease agreement, an act of acceptance and transfer of rented property, documents confirming the payment of rental payments, in accordance with the requirements of the Civil Code of the Russian Federation. At the same time, the monthly conclusion of acts of services rendered under the lease agreement for the purposes of documentary confirmation of costs in the form of rental payments is not required. This statement is true, unless otherwise follows from the transaction conditions. Such a position is set out in the letter of the Ministry of Finance of Russia of 09.11.2006 No. 03-03-04 / 1/742. In addition, the letter states that rent payments are taken into account as part of some expenses, subject to the use of leased property for business activities.
The costs that are conditionally permanent (including utility payments) for income tax purposes may be taken into account in that month in which documents confirming these expenses are obtained, provided that such an order is reflected in the organization's accounting policy (PP. 3 . 7, Art. 272 \u200b\u200bof the Tax Code of the Russian Federation). Such a position is set out in the letter of the Ministry of Finance of Russia from September 6, 2007 No. 03-03-06 / 1/647. According to the author, you should choose the moment of accounting for expenses in the tenant tax policy.
If the rental agreement provides an uneven schedule of rental payments, the costs of paying rental payments are recognized as tax accounting, taking into account the principle of uniform recognition of income and expenses regardless of their actual payment. The monthly conclusion of acts of services rendered under the lease agreement is not required. This position is confirmed by the letters of the Ministry of Finance of Russia dated 17.04.2007 No. 03-03-06 / 1/248, from 06.02.2007 No. 03-03-06 / 1/59, from 10.11.2006 No. 03-03-04 / 1/752 .
Often, the parties conclude a preliminary contract for renting buildings until the landlord is executed by the landlord. SFNS specialists in Moscow in a letter from 05.10.2006 N 20-12 / 87641 noted that the preliminary lease agreement does not contain the main signs of the lease agreement established by the Civil Code of the Russian Federation (the transfer of the landlord (owner) to the leaser of the property for temporary possession and Using the fee), so such an agreement can not be considered a lease agreement concluded in accordance with the legislation of the Russian Federation. Consequently, the costs carried out in accordance with such a contract cannot be taken into account for rented property purposes. Output for the tenant in this situation can only be replacing the qualifications of payments under the preliminary lease agreement with rental payments for payments for the purchase of property rights by the tenant - the lease law on the future lease agreement.
According to the letter of the Ministry of Finance of Russia dated July 12, 2006 No. 03-03-04 / 2/172, the legislative consolidation of the mandatory registration of rights to immovable property and transactions with it determines only the rights and obligations of the Parties under the Agreement and has non-taxable targets. The lack of state registration of rights under the lease agreements does not affect the procedure for accounting for the amount of rental fees when calculating the income tax. Applying this letter is risky enough, since further it says that the costs of contracts not concluded in the prescribed manner cannot be taken into account in reducing the tax base for the income tax as documented not confirmed costs.
According to the emails of the Ministry of Finance of Russia dated 17.02.2006 No. 03-03-04 / 3/3, from 12.07.2006 No. 03-03-04 / 2/172 and from 01/03/2005 No. 03-03-04 / 1/325 if in accordance with paragraph 2 of Art. 425 Code of the Russian Federation Terms of the contract are distributed for the period from the moment the lease object is transferred to the potential tenant, then rental payments for registered or under state registration Agreement are made to reducing the tax base for the income tax from the moment of receipt of the facility to use.
If the lease agreement does not disseminate its conditions for past periods, then expenses in the form of rental payments for this period cannot be taken into reducing taxable profits from the moment the transfer of such property. The resolution of the FAS of the North-West District dated 21.04.2006 in case No. A56-24327 / 2005, it was said that the accounting of rental payments in expenditures in order to tax return is not associated with the presence of state registration of the lease agreement. The resolution of the FAS Far Eastern District dated February 14, 2007 No. F03-A59 / 06-2,5389 states that violation of civil law standards does not affect the taxation, since it does not provide for the availability of the cost of the reality of the lease agreement, but only economic substantiation is required.
According to paragraph 9 of the information letter of the Presidium of the RF data from 16.02.2001 N 59 "An overview of the practice of resolving disputes related to the application of the Federal Law" On State Registration of Rights to Real Estate and Transactions with Him "Agreement on the Agreement of Rental Resumption of the Rental Rental Treaty Also subject to state registration. However, in the WFNS of Russia in Moscow dated 12.04.2006 N 20-12 / 29001, it is stated that the agreement of the parties to the main lease agreement on the change in the value of the rental for real estate is not attributed to the current legislation to the act Changes of rights to this property and the value of the rent is not a condition, with the failure of which a real estate lease agreement may be considered nonconnected.
In accordance with the letter of the Ministry of Finance of Russia dated 05.08.2005 No. 03-03-04 / 4/4, rent payments made on the basis of an additional agreement of the parties to resolve the amount of rent specified by them in the lease agreement are subject to inclusion in other expenses in accordance with PP. 10 p. 1 Art. 264 of the Tax Code of the Russian Federation, subject to their validity and confirmation by relevant primary documents after the state registration of the specified agreement.
The expenses of the tenant in the form of a rent under a contract for a period of less than a year, including during the prolongation of this contract for a period of less than a year, can be taken into account for the purpose of income tax. If the lease agreement of real estate, concluded for a period of less than one year, is prolonged for a period of less than a year, the specified lease agreement does not require state registration. At the same time, the contract can be extended by concluding a new contract or automatically on the basis of the initial contract at the end of the lease term in the absence of a statement of one of the parties to refuse to extend the contract. Such a conclusion is confirmed by paragraph 10 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 16.02.2001 N 59, which was indicated earlier. Such a point of view is set out in the WFNS of Russia in Moscow of October 18, 2006 N 20-12 / 92230. The term "prolongation" of the lease agreement is set forth in this letter, and it can be applied to tax purposes.
If the lease term in the contract is not determined and the contract is considered to be concluded indefinitely, then in accordance with the WFNS of the Federal Tax Service of Russia in Moscow of June 22, 2006 N 20-12 / 22181, this lease agreement concluded for an indefinite period in state registration does not need , and the expenses of the organization under the contract for renting a premises concluded in established by law order can be taken into account for income tax purposes.
Suppose the organization leases a non-residential premises for an office on the basis of the 11 month prisoner. The lease agreements, according to which the Agreement is considered to be renewed under the same conditions indefinitely. After the expiration of the lease term, the tenant continues to use the premises, and the landlord does not mind it. Can the organization take into account the costs of rent for tax purposes after 11 months without registration of the lease agreement? The answer to this question is given in the Ministry of Finance of Russia dated 04.04.2009 No. 03-03-06 / 1/241, which states that the expenses of the organization under the lease agreement concluded in the procedure established by law can be taken into account for income tax purposes.
If the lease agreement provides for the obligation of the tenant to pay for actually consumed utilities and communication services, the tenant takes into account the costs of the costs associated with the payment of utility payments related to the premises (buildings) obtained for rent, as well as to the means of communication used by the tenant in its activities. These expenses should be documented by the accounts exhibited by the landlord of the energy supply organization or telecom operator and reflecting the actual supply of energy (water) or the provision of telephone services. Such an extremely dangerous for the tenant position is set out in the letter of the Ministry of Finance of Russia dated January 30, 2008 No. 03-03-06 / 2/9. The only solution to this problem is the mediation qualifications of the contract.
And the last thing you need to say. Do not forget that according to Art. 288 of the Civil Code Accommodation in residential industrial production houses is not allowed. In a letter of the Ministry of Finance of Russia dated 10.11.2006 No. 03-05-01-04 / 310, it was noted that the placement by the owner in the residential building owned by him, institutions, and organizations are allowed only after the translating of such a premises into non-residential, i.e. The apartment cannot be used as an office until it is removed from the residential foundation. Consequently, rent payments do not reduce the tax base for the income tax.
Publication
The issue of taxation of the income of an individual who leases the living real estate can be viewed as part of a more significant issue, namely, the issue of delimitation of entrepreneurial and non-business activities. Since the delivery of real estate (for example, apartments) can bring significant income for rent, the recognition of such activities entrepreneurial can lead not only to administrative, but also to criminal liability, if it is connected "with the extraction of income in large amounts", which is recognized as the amount exceeding 250,000 rubles. (Note to Art. 169 of the Criminal Code of the Russian Federation). So, if you rent a three-room apartment in Moscow, for example, for 45 000 rubles. per month, the criminal law limit will be exceeded in less than 6 months.
And this is only responsibility for illegal entrepreneurship, and there are still risks associated with incubation for tax accounting, the misuse of the declaration, incorrect calculus and payment of taxes.
We will try to figure out, with what criteria to physically can be done right choice To determine the methods and forms of conducting activities for leasing residential real estate, how to properly calculate and pay taxes, as well as consider the issues of tax planning in the structuring of income from the specified activity.
Entrepreneurial is a relevant activities carried out to the systematic profit from the use of the property, the sale of goods, the fulfillment of work or the provision of services by persons registered in this capacity in the manner prescribed by law. To assess the nature of the physical person of this definition itself, it is clearly not enough, so we will try to understand the position of state bodies on this issue.
Position of tax authorities
According to the tax authorities, expressed in the WFNS letter in Moscow of January 25, 2008 No. 18-12 / 3/005988, for individualsparticipating in rental relations and (or) transactions for the purchase and sale of property owned by him, the obligation to obtain the status of an individual entrepreneur is not established. This is due to the fact that the income received by individuals from rental (ves) and (or) the implementation of movable or immovable property is indicated in Art. 208 of the Tax Code of the Russian Federation as an independent type of income, which is the object of tax ndfl.
The law binds the need to register an individual as an individual entrepreneur with the implementation of the activities of a special kind, and not just with the commission of compensated transactions.
The presence of signs of entrepreneurial activity indicate, in particular, the following facts:
manufacturing or purchase of property for subsequent extraction of profits from its use or implementation;
accounting for economic operations related to the implementation of transactions;
interconnected by the citizen committed by citizen at a certain period of transaction time;
sustainable bonds with sellers, buyers, other counterparties.
Economic activities are the case when resources, equipment, labor, technology, raw materials, materials, energy (information resources) are combined into a production process, the purpose of which is the production of products (provision of services). Such activities are characterized by production costs, production and production process (provision of services).
With all these signs, an individual is obliged to register as an entrepreneur without the formation of a legal entity.
In the absence of grounds for recognizing real estate operations with entrepreneurial activities from received income, an individual must pay personal income tax as a person who is not an individual entrepreneur.
The position of the courts for administrative offenses (p.13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 No. 18 "On some issues arising from courts when applying a special part of the CAC"). Separate cases of sales of goods, performance of work, the provision of services by a person who is not registered as an individual entrepreneur does not form the composition of this administrative offense Provided if the amount of goods, its assortment, the volume of work performed, services rendered and other circumstances do not indicate that this activity was aimed at systematic profits.
Evidence confirming the fact of activities aimed at systematic profit, in particular, may be the testimony of persons who paid goods, work, services, receipts in obtaining funds, extracts from bank accounts of the person involved in administrative responsibility, acts of transferring goods (execution Works, provision of services), if from these documents it follows that the cash has been received for the implementation of these persons of goods (performance, provision of services), placement of advertisements, exhibiting product samples in places of sale, purchase of goods and materials, conclusion of the rental contracts.
The position of the courts in criminal matters (paragraph 2 of the Resolution of the Supreme Court of the Russian Federation of November 18, 2004 No. 23 "On judicial practice on cases of illegal entrepreneurship and legalization (laundering) of cash or other property of the acquired criminal means").
In cases where the person not registered as an individual entrepreneur acquired a residential premises or other real estate or received him inherited or under the gift agreement, but due to the lack of need to use this property temporarily passed it for rent or vene As a result of such a civil transaction, income received income (including in large or highly large-scale), who did not entail criminal responsibility for illegal entrepreneurship.
Choosing a business entity
Having determined whether the planned entrepreneurial activity is, then we propose the following taxpayer actions algorithm.
If activities respond to all signs of entrepreneurial, the taxpayer must register as an individual entrepreneur. Then, it should be found out whether in the municipality (either in the federation subject - for Moscow and St. Petersburg) at the place of operation of the activity system of taxation in the form of UNVD for renting residential real estate. If UNVD is provided, then an individual entrepreneur must be registered with the tax authorities at the place of implementation of the specified activity within a period no later than five days from the beginning of the implementation of this activity and to pay a single tax introduced in these municipal areas, urban districts, cities of the federal significance Moscow and St. Petersburg. If UNVD is not provided, the individual entrepreneur has the right to apply a general tax regime or a simplified taxation system.
In the event that the activity formally does not meet the signs of entrepreneurial, then, in our opinion, an individual, nevertheless, implementing its legal right to engage in entrepreneurial and any other activities that have not been prohibited by law, have the right to carry out its activities as entrepreneurial in compliance with the necessary formalities or Act directly as an individual.
The choice between entrepreneurial and non-investigative activities is either between a system of taxation, if the activities are entrepreneurial, can also be made after evaluating the tax consequences of renting residential real estate activities carried out in one form or another (individual, an individual entrepreneur using UTII . general System, USN or USN based on a patent).
Tax consequences of lease of residential real estate individual - not an entrepreneur
Acquisition of real estate. In this case:
property tax deduction is provided only for residential real estate in the amount of up to 2 million rubles. (for legal relations arising before 01.01.2008, the maximum deduction amount is 1 million rubles), but no more actually produced costs;
interest on targeted loans for the acquisition or construction of residential real estate received from Russian organizations, in addition to 2 million rubles;
the deduction is provided once, but not used fully deduction is transferred to the following years. However, the taxpayer is not entitled to take advantage in cases if:
payment is made at the expense of employers or other persons, maternal (family) capital, as well as by payments provided from the federal budget, budgets of the constituent entities of the Russian Federation and local budgets,
the sale and sale transaction is enclosed with an individual who is interdepending in relation to the taxpayer in accordance with Art. 20 Tax Code of the Russian Federation (only if relations between persons affected the conditions and economic results of the transaction concluded);
material benefit (interest on loan in 2009, the size of which is less than 2/3) income is not recognized if the taxpayer has the right to deduct;
parents who have minors and consuming own funds for the purchase of real estate objects in common with children share ownership are entitled to apply the property deduction in accordance with actually produced expenses;
the deduction can be obtained either from the tax authority at the end of the year, or at the employer until the end of the year (if there is a notification of the tax authority) (the letter of the Ministry of Finance of Russia of 20.05.08 No. 03-04-06-01 / 146);
overlaid tax can be returned to the tax agent in the statement of an individual.
Real Estate Rent. When renting real estate for rent, income is taxed at a rate of 13%, with the passage to another physical person, the taxpayer independently pays tax for the year.
If the property is leased to an individual entrepreneur or a legal entity, then the tenant (tax agent) is retention of tax at the time of income payments.
The costs associated with real estate repair, other real estate costs, can be taken into account only within the tax deduction (2 million rubles), i.e. They actually "fall out" from the tax base (until the moment of sale).
Alienation of real estate. Consider the highlights of real estate alienation:
- income is taxed at a rate of 13%;
property tax deduction is provided in the amount of 1 million rubles, if the property was owned for less than 3 years, and in the amount of the selling cost, if 3 years or more;
the deduction is provided repeatedly;
if the property has been sold, dedicated in nature and is an independent object of individual property rights, the property deduction is applied by the owner in full without the distribution of the total amount of deduction between other property owners (Resolution of the Constitutional Court of the Russian Federation dated March 13, 2007 No. 5-P);
the taxpayer has the right to not apply the property deduction, but to reduce the costs received from the sale of property for the costs associated with obtaining these income, costs must be documented;
substitution is either produced in relation to all sold objects, or is not produced at all (a letter of the Federal Migration Service of Russia in Moscow of April 23, 2008 No. 28-10 / 039332);
the property tax deduction from the income received from the sale of property is provided to the tax authority, the tax agent (in particular, the employer) this deduction does not provide (Resolution of the FAS of the Volga District of 03.02.2004 N A12-13945 / 03-C21);
the deduction is provided at the end of the year, in which revenues from the sale of property are obtained, on the basis of the statement of an individual submitted to the tax authority together with the tax declaration;
overcharged tax can be returned to a tax agent in the same manner as a property as a property tax deduction upon acquisition of real estate.
An important point is that when buying, selling and renting residential real estate (i.e., at every stage of the activity under consideration), the individual does not pay VAT.
Calculate the amount of tax liabilities of an individual, adopting the conditionally the cost of the apartment for 10 million rubles, the rental price is 45 thousand rubles. per month, suggesting to simplify the calculations, that in the year of the acquisition and year of sales of the apartment, rental is not carried out.
Acquisition
Deduction - 2,000,000 rubles., 8,000,000 rubles. The tax base does not fall;
Deduction used for the first year - 720,000 rubles.
Tax base - 0 rub., NDFL - 0 rub. (taking into account the deduction and return of the taxable tax).
Rental
FL income (salary) - 720,000 rubles. per year;
PL income from rental - 540,000 rubles. (45 000 rub. X 12 months);
In just a year - 1 260,000 rubles.
Transferred deduction - 1 280,000 rubles.
NDFL - 0 rub. [(1 260 000 - 1,280,000) x 13%] for the first year, for the next -163 800 rubles. (tax for the second year will be reduced by 2,600 rubles. Unused 20,000 rubles. x 13% deduction)
Sale (after 3 years from the date of purchase)
Income FL (salary) for the year - 720,000 rubles. (60,000 rubles. X 12 months);
Deduction in the amount of the sale cost of real estate - 8,000,000 rubles, which have not fallen into the tax base when purchased, - in fact, it is a non-cash
Tax base - 720,000 rubles, NDFL - 93 600 rubles.
Individual entrepreneur: a review of tax regimes in relation to the rental of residential real estate
Total tax regime.
An individual entrepreneur is a VAT taxpayer, and therefore, when renting a property, an object of the taxation of VAT will arise. Accounting for income and expenses is governed by order of the Ministry of Finance of Russia of August 13, 2002 No. 86N, MNS of the Russian Federation No. BG-3-04 / 430 "On approval of the procedure for accounting for income and expenditures and economic operations for individual entrepreneurs", in which a number of issues are not settled (for example, There is no right to use the depreciation premium, which for the situation under consideration is important due to the fact that residential real estate is depreciable property; the consequences of sales of amortized property are not settled).
According to the tax authorities, the apartment cannot refer to the facility of fixed assets, and therefore the depreciation deductions to the costs cannot be taken (a letter of the Russian RF dated 06.07.04 No. 04-3-01 / 398). In our opinion, the specified position is unreasonable, because the apartment as a "means of production" is no different, for example, from hotels or office centers, to which such claims do not arise in mind their obvious absurdity.
Thus, the application of this tax regime in relation to the activity under consideration is inappropriate, there is a risk of a dispute with tax authorities (this conclusion is general and subject to adjustment in relation to a specific situation, for example, if it is planned to rent a property for rent a legal entity, the latter may be interested in receiving deductions on VAT).
ENVD.
In this case, it is possible to take into account the costs that it is unprofitable both at the acquisition stage and at the stage of leasing real estate, as well as there is no need to pay VAT.
Thus, the application of this tax regime in relation to the activities under consideration, in our opinion, is inappropriate due to the inability to take into account costs. We remind you that in the case of the introduction of UTII in the prescribed manner, it is possible to avoid the use of this tax regime only carrying out activities without registration as an individual entrepreneur.
USN.
When wept, it is necessary to consider the following:
costs for fixed assets must be taken into account during the tax period evenly and recognize as the last number of reporting (tax) period for the last number;
the ability to transfer losses for the future, but no more than 10 tax periods;
these rules can be implemented in the application of the tax object "Revenues reduced by the amount of expenses" and, accordingly, the tax rate is 15%, but the subjects of the federation have the right to lower the rate to 5% depending on the category of the taxpayer (paragraph 2 of Art. 346.20 NK Rf);
there is no need to pay VAT;
it is necessary to take into account the income limit, the excess of which does not allow the use of USN (23,070,000 rubles. for 9 months, taking into account the deflator coefficient for 2009), as well as maximum size residual value fixed assets (100 million rubles).
It should be borne in mind such "unpleasant" features of USN, as the minimum tax and the need to recalculate and pay tax on depreciation rules in certain cases (in the case of fixed assets under the conditions specified in the post. Paragraph 3 of Art. 346.16 of the Tax Code of the Russian Federation) .
Thus, USN is the optimal tax regime for leasing property, which allows to take into account the costs, but the organization of activities with the use of USN requires more balanced and professional tax planning.
WIN based on a patent. The patent can be obtained only if a law on the possibility of using a patent system on a specific type of activity has been adopted in the relevant entity of the Russian Federation. Taxation is to pay for the value of the patent, the formula for calculating which is given in the Tax Code of the Russian Federation and depends on the potentially possible annual income determined by the law of the constituent entity of the Russian Federation. Recognition for the purpose of taxation of expenses is not provided.
Thus, in our opinion, the use of this tax regime in relation to the activity under consideration is inappropriate in connection with the inability to take into account costs.
Tax consequences of lease of residential real estate with an individual - an individual entrepreneur using USN
Consider the tax consequences of the use of USN as the most optimal, from our point of view, the tax regime for the purpose of leasing property purposes. This conclusion refers to a certain averaged situation and can be adjusted taking into account specific circumstances.
Acquisition of real estate. The cost of real estate is taken into account during the tax period evenly and is recognized as the last number of reporting (tax) period.
The individual entrepreneur in the certificate of state registration should be such a type of economic activity as "Real estate operations, rental and services" (a letter of MNS of the Russian Federation of 06.07.04 No. 04-3-01 / 398).
If for the tax period, the amount calculated in the total order of tax is less than the amount of the calculated minimum tax, then the minimum tax in the amount of 1% income is paid, while the difference between the amount of the calculated tax and the sum of minimum income can be transferred as a loss for the future.
Interest on loan can be attributed to the expenditures on the rules established for legal entities (1.5 rates of the Central Bank of Loans in rubles or 22% in currency).
Real Estate Rent. Revenues decrease into documented and economically sound expenses (according to the rules of chapter 25 of the Tax Code of the Russian Federation)
The tax rate is 15%, the tax is paid independently every quarter of advance payments, the final payment occurs at the end of the year (a letter of the Ministry of Defense of the Russian Federation of 06.07.04 No. 04-3-01 / 398).
Property For Sale. Revenues are generally in a general order at the time of payment of payment in the amount of revenue received. At the time of implementation, revenge incomes for the cost of fixed assets cannot (the emails of the Ministry of Finance of Russia of April 18, 2007 No. 03-11-04 / 2/106, from 05/27/05 No. 03-03-02-04 / 1/131).
When implementing fixed assets in some cases, it is necessary to recalculate already taken into account expenses and the tax itself, to pay it and penalties, to file updated tax declarations, which depends on two factors:
time useful use fixed assets;
the time that has passed since the accounting of the cost of the purchase (creation) of the main means or from the moment of this acquisition (creation).
Recalculation is required, in particular, by fixed assets: the useful life of which over 15 years, if they were implemented for 10 years from the date of purchase (creation, manufacturing); These include residential premises (the latest depreciation group, useful life of 30 years; if the residential premises, previously used, should obtain documentary confirmation of the term of use, for example, to compile an AC-1 act).
Tax recalculation is that over the past periods it is necessary to exclude the costs that have already been taken into account on such fixed assets, and it is necessary to accrue depreciation according to the rules of ch. 25 NK RF.
Since residential premises belong to the last depreciation group (useful life of 30 years), the amount of monthly expenses in the event of taxes on the rules of depreciation will significantly decrease.
The use of the real estate object by the previous owner must be confirmed documented (preferably in the form of OS-1), i.e. When purchasing a "secondary real estate" and proper confirmation of the term of use, depreciations may increase.
To assess the tax consequences, it is necessary to take into account that the individual entrepreneur pays contributions to the FIU in the form of a fixed payment, calculated on the basis of the cost of the insurance year (in 2008, the cost of the insurance year was 3864 rubles).
Calculate the amount of tax liabilities of an individual entrepreneur, adopting the cost of an apartment for 10 million rubles, the rental price is 45 thousand rubles. per month, suggesting to simplify the calculations, that in the year of the acquisition and year of sales of the apartment, rental is not carried out. The cost of the apartment is 10,000,000 rubles, the apartment is new.
Acquisition: Income - 0 rub., Costs - 10,000,000 rubles. per year, fully transferred as losses for the future (no more than 10 years), tax base - 0 rubles, minimum tax - 0 rubles. (Since there is no income).
Rental: Revenue from rental of 540,000 rubles. (45 000 rubles. X 12 months). The permanent loss amounted to 540,000 rubles. per year (to "use" a loss in full over 10 years beneficially simultaneously engaged in other activities that bring revenue).
Tax base \u003d 0 rub., Minimum tax \u003d 5,400 rubles.
NDFL \u003d 720,000 (wages, provided that in addition to the delivery of an apartment, an individual also works on an employment contract) * 13% \u003d 93 600 rubles. per year, total for the year 99,000 rubles. (For comparison, when delivering real estate FL, the tax amount will be 0 rubles (for the 1st year), for the next 163,800 rubles)
Sale(more than 10 years): price - 5,000,000 rubles., Tax (15%) - 750,000 rubles. (in the absence of expenses, therefore, for the period of sale, it is possible to schedule the costs that will cover the income received).
It is also important for sale, it is also important to take into account that if the income limit is exceeded for the use of USN, the right to apply this tax regime will be lost from the beginning of the quarter in which the specified excess and (or) non-compliance with the specified requirements.
Thus, the choice of the form of activities is predetermined by the answer to the question, whether it is an entrepreneurial activity or not. If it is, the physical person needs to be registered as an individual entrepreneur. If the activity of entrepreneurial is not, then the status of an individual entrepreneur is unlikely to make sense: it is usually cases when an individual leases one apartment, for example, the inheritance has the opportunity to pay its 13% tax and limited to the feed Declaration once a year, avoiding the difficulties of tax administration and subtleties of tax planning. This, however, does not exclude activities as an individual entrepreneur, which, if competent planning and legally correct design, will allow you to manage your tax payments.
Organizations that are used by simplified determine taxable revenues based on articles 249 and 250 of the Tax Code of the Russian Federation (clause 1 of Art. 346.15 of the Tax Code of the Russian Federation). These articles share all revenues for revenue from sales and non-deactive income. The main one occurs when taking into account the rental revenues during USN, to which income for a single tax attribution to the fee received for the rental of property for rent is to revenue from sales or non-deactive income.
In the general case, the income from the rental of the property is non-dealerization. However, it can be taken into account both in revenue from sales. The criterion for assigning rental fees to the revenue to the Tax Code of the Russian Federation is not however, it contains a condition for incorporating expenses related to the rental of property for rent, to expense expenses. So, if the organization gives property to a systematic basis, the costs of such activities are related to the implementation (sub. 1, paragraph 1 of Art. 265 of the Tax Code of the Russian Federation). Accordingly, the revenues from it must be recognized as part of revenue from sales.
The concept of systematic is used in the meaning used in paragraph 3 of Article 120 of the Tax Code of the Russian Federation, twice and more calendar year. Such an approach to the application of the concept "systematization" was enshrined in paragraph 2 of section 4 Methodical recommendations For the application of chapter 25 of the Tax Code of the Russian Federation (approved by the Order of the Ministry of Emergency Situations of Russia of December 20, 2002 No. BG-3-02 / 729). To date, this document has raised strength (order of April 21, 2005 No. SAE-3-02 / 173). However, the proposed interpretation of the concept of "systematic" retains its relevance, which is confirmed by the Tax Office (see, for example, a letter to the UMNS of Russia in the Moscow region of March 25, 2004 No. 04-23 / 03451) and vessels (see, for example, FAS Resolution Volga-Vyatka district dated October 26, 2005 No. A28-4710 / 2005-34 / 29).
Thus, if the property is leased on a systematic basis, then income accounting
From the lease when we are in the same order as revenues from sales. Otherwise, reflect rent payments in the composition of non-revenue income. Similar rules can be applied in accounting. Only rental revenues with USN need to be divided into income on ordinary activities (reflect on account 90) and other income (reflected in the account 91).
The date of receipt of income is the day when the organization actually received funds from the tenant to pay for its debt. The sum of the rent obtained in the form of an advance is included in the income on the USN immediately at the time of its receipt to the organization. This date you need to make an appropriate entry into the revenue of the book of income and expenses. This procedure follows from paragraph 1 of Article 346.17 of the Tax Code of the Russian Federation and the PMC records of Russia of June 11, 2003 No. SA-6-22 / 657, dated January 25, 2006 No. 03-11-04 / 2/15 and the decisions of the Russian Federation of January 20, 2006 No. 4294/05.
In accounting, similar rules can be applied. But only provided that the organization refers to small businesses and accounts in the cash method. If it applies the method of accrual, then rental revenues at USN reflect on the date when the organization has the right to receive them (as a rule, this is the last number of each month). Such income from the tenant or not, does not matter.
Example
The organization applies USN, tax pays from the difference between income and expenses. Accounting is based on the method of accrual. The organization has leased non-residential premises.
Since January, the company charges a monthly rent in the amount of 90,000 rubles. The payment from the tenant comes monthly (in the month following the period in which rental services were rendered).
Situation 1.
One of the activities of the company is to lease fixed assets. Accounting for rental revenues with USNs is carried out using the following records:
- in January:
Debit 62 Credit 90-1
- in February:
Debit 51 Credit 62
- 90 000 rubles. - Rent for January at the current account;
Debit 62 Credit 90-1
- 90 000 rubles. - Rental fees are accrued and the tenant's debt reflects;
- in March:
Debit 51 Credit 62
- 90 000 rubles. - arrived rent for February to the current account;
Debit 62 Credit 90-1
- 90 000 rubles. - Rental fee is accrued for March and the debt of the tenant is reflected.
According to the results of the first quarter, the amount of rent in the amount of 270,000 rubles will be reflected in the accounting procedure for the estimation of revenue from sales (income on ordinary activities). (90 000 rubles. × 3 months). Only actually received rental fees in the amount of 180,000 rubles are transferred to the booking book of income and expenses. (90 000 rubles. × 2 months).
Situation 2.
Leasing of fixed assets is not a type of activity of the organization. At the same time, the property was handed to the tenant for one month. Then the accounting of rental income during USN is conducted using the following records:
- in January:
Debit 62 Credit 91-1
- 90 000 rubles. - Rental fee for January and reflects the indebtedness of the tenant;
- in February:
Debit 51 Credit 62
- 90 000 rubles. - Rent for January to the current account.
According to the results of the first quarter, the amount of rent in the amount of 90 000 rubles in the amount of rent in the amount of 90 000 rubles will be reflected in the accounting procedure. In the book of income and expenses, the non-revenue is also reflected in the amount of 90,000 rubles.
How to legally rent a residential premises for rent?
There are two ways to pay for income tax received from rental of residential premises:
- To submit a tax return on the year and pay for income tax (NDFL) at a rate of 13%, no later than April 30, the next year following the year in which the appropriate income was obtained.
- Purify a patent for renting residential premises for rent.
Feed a declaration
1. There are several options for filling the declaration:
in paper using a form of a declaration of the hand filled (provided for free in tax inspections or independently print from the site www.nalog.ru);
in electronic form using a form or program "Declaration 20__" (on the site www.nalog.ru);
visit the Tax Inspectorate at the place of registration and fill in the Declaration along with the inspector of the department of cameral audits on personal income tax.
2. There are several options for filing a declaration:
in in electronic format via the Internet (using the site www.nalog.ru);
personally come to the tax inspection at the place of registration;
to send a representative of the taxpayer (the submission through the representative suggests that a notarized document will be attached to the declaration, confirming the powers of the taxpayer's representative);
submit a declaration by mail direction (in any separation of Russian Post).
Dates of submission and payment
No later than April 30, next year, in which the appropriate income was obtained, the tax declaration (3-NDFL form) was provided to the tax inspectorate at the place of residence.
No later than July 15, the next tax period, the total tax rate, calculated in accordance with the tax declaration submitted, is paid at the taxpayer.
Patient acquisition
1. Register as an individual entrepreneur
(State duty for registration is 800 rubles)
To do this, contact IFTS No. 46 or pass online registration On the site www.nalog.ru.
2. Apply for a patent to any tax inspection
3. Get a patient in the tax inspection within 5 business days after submitting an application
4. Pay patent
Cost and payment time can be found
FREQUENTLY ASKED QUESTIONS
Who should declare revenue from the delivery of real estate for rent?
Answer:Revenues from the rental of real estate for rent should declare citizens who pass property to lease to other individuals. In the event that the lease agreement is concluded between the individual and the organization, and the organization did not hold the tax, the individual should also declare the income received. Another way to pay NDFL with rental housing is the acquisition of a patent for renting residential premises.
How to find out about the duties to pay a tax rental tax?
Answer:In accordance with Art. 224 Code The income received by the owner of residential premises under contracts for hiring residential premises is the object of taxation on NDFL at a rate of 13% in the tax residents of the Russian Federation and at a rate of 30% of individuals - non-residents of the Russian Federation.
The law provides for responsibility for failure to provide tax Declaration, for tax evasion, etc. For example, if the taxpayer is obliged to submit, but did not provide a tax declaration on the income tax on individuals, then it is responsible provided for by paragraph 1 of Article 119 of the Tax Code of the Russian Federation, in the form of a fine.
Why do you need to conclude a contract and pay NDFL for rent?
Answer:Citizens passing and shooting apartments should conclude contracts in which the obligations of the parties are clearly spelled out. This will continue to avoid possible conflicts between the owner and tenants, save money, nerves and time.
Registration of the contract is optional if it is concluded for a period of less than a year.
Should the tenant pay NDFL for rent?
Answer:Tenant - no. But the landlords (owners of apartments) - yes. In accordance with the Tax Code, they must pay the income tax of individuals in the amount of 13% of the amount surveyed for renting an apartment.
How to practically submit a declaration?
Answer:In inspections, the reception of declarations is carried out in operating rooms, or in specially designated premises, there are signs where acceptance is carried out. Most operating rooms are equipped electronic system The queue management, computers with reference and legal systems and software products developed by the Federal Tax Service of Russia.
Also in the inspection you can get advice and practical assistance to fill tax declarations.
When submitting a declaration, it is necessary to have a passport and at the request of the taxpayer documents confirming the revenues received from renting property (lease agreement, receiving money, other payment documents).
How to legally rent a residential premises for rent?
Answer:There are two main ways to pay for income tax received from rental residential rental:
1. To submit a tax return on the results of the year and pay for personal income tax (NDFL) at a rate of 13%;
2. Purchase a patent for the delivery of residential premises for rent.
Answer:On the website of the Department of Economic Policy and Development of the city of Moscow, we have made a fairly simple calculator - "How to calculate the cost of a patent". You go to the site, choose the type of activity that is planning to do (for example, take renting an apartment, choose the area in which the apartment is located, its area and the period to which you want to purchase a patent, and the calculator automatically calculates the cost of the patent. You Watch it, appreciate, for what time you are ready to purchase a patent - for a year, maybe a month.
What is a patent?
Answer:It can be purchased for any time during the calendar year. For example, if you just start to rent an apartment for rent, and still not sure if you can pass it for a long time, whether your tenant will stay for a month, you can purchase a patent for a month, two, three, try, how comfortable this system is convenient for you. And further acquire it, for example, for a year. In addition, the patent relieves you from pile of papers, from the need to fill a large, quite complex declaration on taxes on income of individuals. All you need to do is just fill out a fairly simple application for the purchase of a patent and get a patent. And that's it. All difficulties with filling out the report go.
What is the tax rate on individuals, in case I (as an individual) get revenues from renting an apartment?
Answer:Tax rates are established by Art. 224 NK RF.
· 13% - for tax residents of the Russian Federation;
· 30% - for non-residents of the Russian Federation.
What are the deadlines for the submission and payment of housing tax?
Answer:To submit a tax return (form 3-NDFL) to the tax inspection at the place of residence on time, no later than April 30 of the year following the year in which the appropriate income was obtained.
The total amount of tax, calculated in accordance with the tax declaration submitted, is paid at the place of accounting of the taxpayer on time not later than July 15, following the expired tax period.
For the failure to submit the tax declaration and non-payment of tax, in addition to coercion to the payment of the tax itself, it is liable in accordance with Articles 119 and 122 of the Tax Code of the Russian Federation (up to 40% of the amount of unpaid tax, which are charged in court).
The tax period received income from renting an apartment. Do I have the right when calculating the income tax reduce income obtained in the form of rental fees, the amount of costs made in the form of payment by the tenant of utility services, if the cost of these services is included in the amount of rent?
Answer:In the event that the lease agreement provides that in the amount of the rental fee included the costs of the tenant in the form of costs for the use of utility services, the landlord is not entitled to take into account the indicated costs in determining the tax base for personal income tax.
What do I need to do if I know that one of my neighbors unofficially removes the apartment (room)?
Answer:Information about this fact You can provide the older in the entrance, the district authorized police according to your site, or directly to the tax authorities. In the authorities can be included in electronic form via the Internet.
