With regard to communication services (telephone conversations), the following should be taken into account.

According to the Federal Law of February 16, 1995 No. 15-FZ "On Communication" (Art. 15), the activities of physical and legal entities connected with the provision of communication services is carried out on the basis of a license duly obtained and executed for this purpose. Accordingly, the lessor can reflect the telephone charges received from the lessee through the 46 (90) invoice only when operating in the field of providing communication services on the basis of an appropriate license, which, as a rule, the lessor does not have. Generally speaking, the arguments against reflecting the reimbursement received from the tenant for the use of telephone services (call charges) may be the same as above in terms of reflecting utilities. But, since the tax authorities in this matter resort to “additional” arguments, we will refute them too.

In the letter of the State Tax Service of the Russian Federation dated October 27, 1998 No. ШС-6-02 / 768, the tax authorities refer to paragraph 4 of the Rules for the provision of telephone services, approved by the Government of the Russian Federation dated September 26, 1997 No. 1235). This clause states that Telephone services are provided on the basis of an agreement for the provision of telephone services concluded between the telecom operator and the subscriber (client).

The rights and obligations of the parties under the agreement may be transferred to other persons only in the manner prescribed by the legislation of the Russian Federation and these Rules. What kind of order it is is not yet entirely clear. The Rules themselves indicate the procedure for renewing the contract only for citizens. And the Rules themselves were adopted in pursuance of the Law “On Protection of Consumer Rights” and there are no grounds for broad application in terms of regulating relations with business entities, especially since these rules cannot affect either the formation of accounting registers or, moreover, tax legal relations. Moreover, the lessor cannot reflect the payment for telephone calls through the 46 (90) invoice, since it does not have a license and, in fact, within the framework of lease relations, carries out "transit" of settlements between the lessee and the telecom operator.

In practice, the problem of construction between the tenant, the lessor and the telecom operator is often resolved as follows: temporarily (for the duration of the lease agreement for the premises) to re-execute the contract for the provision of telecom services to the tenant, which entails additional cash costs.

Tenant

Speaking about the specifics of reflecting the payment of utility bills from the tenant, we can say the following: Since the issue is directly related to the reduction of the taxable base for income tax, the tax authorities pay very close attention to the issue of the possibility of including the amounts of utility bills set out in the reimbursement of the corresponding expenses of the lessor in accordance with the terms of the lease in excess of the rent. If these payments are not allocated in a separate line (a separate account), but are included in the rent, then utility bills as part of the rent are included in the cost of production.

If bills for utility bills, payments for telephone calls are billed separately, the tenant may have problems.

The letter of the Ministry of Taxes and Taxation of the Russian Federation No. ШС-6-02 / 768 states: “As for the expenses of the organization - the tenant for paying utility bills, then, based on the nature of these costs, as costs directly related to the production and sale of products (works, services), they are subject to inclusion in the cost of products (works, services) of the lessee, regardless of the type of activity of the lessor's organization, determination of the amount of rent in accordance with the agreement and subject to the conclusion of agreements for the lessee to receive utilities in accordance with the current legislation of the Russian Federation. " Following this letter and a number of others, the tax authorities accepted the attribution of utility bills by the tenant only in the case when the tenant entered into direct contracts with energy supplying and other similar organizations. In turn, these organizations were not particularly in a hurry to conclude contracts with tenants.

However, if we compare the part of the letter regarding the lessor, according to which the lessor reflects the incoming utility payments through the 46 (90) account, if he has the right to perform the functions of providing utility services and the part that speaks of the possibility of attributing the costs of paying utility bills to the cost price , - we come to a completely logical conclusion that if we include in the lease agreement also the possibility of the tenant receiving utilities in accordance with Art. 544 and 545 of the Civil Code of the Russian Federation, we will thereby fulfill the requirements of the tax authorities laid down in the letter. We will have an agreement with the appropriate organization (lessor), transferring services to the sub-subscriber !!!

Taking into account the provisions of the Civil Code of the Russian Federation regulating the law of obligations, as well as special provisions establishing the obligation to obtain the consent of the supplying organization to connect the sub-subscriber, it is possible to confirm the eligibility of the lessor to perform the functions of providing utilities by sending the supplying organization a notice of connecting the sub-subscriber in accordance with the lease agreement and a proposal on the procedure provision of services and settlements with the specified subscriber-lessor. The specified document includes the condition that the proposal is considered accepted in the absence of an objection from the supplying organization.

This can be confirmed by the position set forth in the letters of the UMNS for Moscow dated December 27, 2000 No. 03-12 / 61590, and dated April 21, 2000 No. 03-12 / 16517.

The position is as follows: if the lease agreement provides for the provision by the lessor of the lessee with the right to use the services of energy, heat, water supply and telephone communications in the leased premises, with the lessee being charged with reimbursement of the lessor's expenses for paying for energy, heat, water supply and telephone services in addition to the rental payments, the lessee may attribute to the cost of products (works, services) the costs of reimbursing the lessor for the costs of the above services when these costs are confirmed by the relevant primary documents - the lessor's invoices drawn up on the basis of similar documents issued by the energy supplying organization and the organization - the telecom operator in relation to the actually occupied the tenant of the premises and the heat and power networks and telephone lines used by the tenant ”.

That is, in order to attribute utility bills to the prime cost, the tenant must:

An indication in the agreement that the lessor grants the tenant the right to use energy, water, etc. supply

The consent of the energy supplying organization, given to the lessor, for the possibility of providing services to the sub-subscriber.

Landlord invoices based on similar invoices received from resource providers.

It should be noted that although the clarifications in the letter dated December 27, 2000 were given at the request of the tenant bank, nevertheless, they are general in nature and are quite applicable to all tenant organizations. These letters were published in the magazines "Moscow Tax Courier", No. 11, 2000; No. 5, 2001.

The position stated in the letters of the RF Ministry of Taxes and Tax Administration in Moscow is applicable both in the case when the lessor is a person providing services, and in the case when we consider him as an intermediary (commission agent).

In conclusion, let us express our opinion on this urgent issue for tenants. In our opinion, regardless of the absence or presence of direct contracts with energy, heat, water supply organizations and communication enterprises, as required by Art. 539, 545 of the Civil Code of the Russian Federation, whether or not the consent of the relevant organizations has been received to connect a sub-subscriber, the basis for attributing these costs to the cost in accordance with the Regulation on accounting and reporting are primary documents. In addition, the absence of direct contracts with supplying organizations and communications enterprises is not a reason for excluding these costs from the cost of products (works, services) of the lessee, since the very fact of using the leased space in the process of management and production is the basis for including in the cost of products (works). , services) costs for the maintenance of these premises, if these costs actually took place. The requirements for the existence of relevant agreements are not established by the norms of the Law on Income Tax and the Regulation on the composition of costs. And, as always, we will confirm our claim with arbitral awards: Resolution of the FAS of the Central District of 11/25/1999 No. A09-3086 / 9912, the FAS of the Moscow District of 11/13/2000 No.KA-A40 / 5134-00.

Maintenance of rented property

As we have already indicated, the parties to the contract distribute the responsibilities for the repair of the rented property. In the absence of such instructions in the contract, as a general rule, the costs of the current repair of the leased property are borne by the lessee (Article 616 of the Civil Code of the Russian Federation).

Thus, the following options for the distribution of costs for the current repair of buildings, structures, premises are possible.

The contract is responsible for the repair of the tenant.

Expenses for ordinary activities in accordance with clause 18 of PBU 10/99 are recognized in accounting in the reporting period in which they occurred, regardless of the time of actual payment of funds and other form of implementation (assumption of temporary certainty of the facts of economic activity) when fulfillment of the conditions specified in clause 16 of PBU 10/99.

The cost of repairs to leased property, plant and equipment incurred in accordance with the terms of the lease at the expense of tenant's funds, in accordance with clause 78 of the Methodological Guidelines for the Accounting of Fixed Assets, approved by Order of the Ministry of Finance of Russia dated July 20, 1998 No. 33n, and the Instructions for the Application of the Chart of Accounts are reflected in the accounting by the debit of account 20 in the amount of value renovation works and wasted material.

The regulation on the composition of costs (subparagraph e) of paragraph 2) provides for the inclusion in the prime cost of costs for conducting technical inspection and care, for carrying out current, medium and major repairs.

In order to evenly include the forthcoming expenses for the repair of fixed assets in the costs of production or circulation of the reporting period, the organization on the basis of clause 72 of the Regulations for the maintenance of accounting and financial reporting in the Russian Federation, approved by the Order of the Ministry of Finance of the Russian Federation of July 29, 1998 No. 34n and clause 77 of the above Methodical instructions can create a reserve for the repair of fixed assets (including leased ones). When a reserve for the repair of fixed assets is formed, the production (circulation) costs include the amount of deductions calculated on the basis of the estimated cost of the repair. When making an inventory of the reserve for the repair of fixed assets (including leased items), the over-reserved amounts at the end of the year are reversed.

If the amount of the repair fund is insufficient, unforeseen expenses for repairs can be taken into account in the debit of account 20.

The contract provides for the implementation of current repairs by the lessor at his own expense.

In this case, if the lease is reflected in the 46 (90) account, respectively, the costs of repairing the premises being leased are expenses for ordinary activities - reflected through account 20.

In the case when the rental income for the lessor is operating, respectively, the costs of current repairs are operating costs and are recorded on account 80 (91).

So, in this article, we examined the main problematic points that arise when renting non-residential premises for production needs.

Publication

The issue of taxation of the income of an individual who rents out residential real estate can be considered as part of a more significant issue, namely, the issue of distinguishing between entrepreneurial and non-entrepreneurial activities. Since the lease of real estate (for example, apartments) for rent can bring significant income, the recognition of such entrepreneurial activity can lead not only to administrative, but also to criminal liability if it is associated with "the extraction of income on a large scale", 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 out a three-room apartment in Moscow, for example, for 45,000 rubles. per month, then 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 non-tax registration, non-filing of a declaration, incorrect calculation and payment of taxes.

Let's try to figure out what criteria an individual can use to make right choice to determine the methods and forms of leasing residential real estate, how to correctly calculate and pay taxes, and also consider the issues of tax planning when structuring income from this type of activity.

An entrepreneurial is an independent activity carried out at its own risk aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in established by law okay. To assess the nature of the activity of an individual, this definition in itself is clearly not enough, therefore we will try to understand the position of state bodies on this issue.

Position of the tax authorities

In the opinion of the tax authorities, expressed in the letter of the Federal Tax Service for the city of Moscow dated 25.01.08 No. 18-12 / 3/005988, for individuals participating in lease relations and (or) transactions for the sale and purchase of property owned by them, no obligation has been established to obtain the status of an individual entrepreneur. This is due to the fact that incomes received by individuals from the lease (rent) and (or) sale of movable or immovable property are indicated in Art. 208 of the Tax Code of the Russian Federation as an independent type of income that is subject to personal income tax.

The law connects the need to register an individual as an individual entrepreneur with the implementation of a special kind of activity, and not just with the performance of paid transactions.

The presence of signs of entrepreneurial activity is evidenced, in particular, by the following facts:

production or acquisition of property for subsequent profit from its use or sale;

accounting of business transactions related to the implementation of transactions;

the interconnectedness of all transactions made by a citizen in a certain period of time;

stable relations with sellers, buyers, and other counterparties.

Economic activity takes place 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 goods (provision of services). Such activities are characterized by the costs of production, the production process and the release of products (services).

In the presence of all these signs, an individual is obliged to register as an entrepreneur without forming a legal entity.

In the absence of grounds for recognizing transactions with real estate as entrepreneurial activity from the income received, an individual must pay personal income tax as a person who is not an individual entrepreneur.

The position of the courts in cases of administrative offenses(Clause 13 of the Resolution of the Plenum The Supreme Court RF of 24.10.06 No. 18 "On some issues arising from the courts when applying the special part of the Code of Administrative Offenses"). Individual cases of the sale of goods, the 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 that the quantity of goods, its range, the volume of work performed, services rendered and other circumstances do not indicate that this activity was aimed at systematic profit.

Evidence confirming the fact of engaging in activities aimed at systematic profit, in particular, may be testimony of persons who paid for goods, work, services, receipts for receiving funds, bank statements of a person brought to administrative responsibility, acts of transfer of goods (execution works, services), if it follows from these documents that cash were received for the sale of goods by these persons (performance of work, provision of services), placement of advertisements, display of samples of goods at points of sale, purchase of goods and materials, conclusion of lease agreements for premises.

The position of the courts in criminal cases (clause 2 of the Resolution of the Supreme Court of the Russian Federation of November 18, 2004 No. 23 "On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of money or other property acquired by criminal means").

In cases where a person who has not been registered as an individual entrepreneur has acquired residential premises or other immovable property for personal needs, or has received it by inheritance or under a donation agreement, but due to the lack of the need to use this property, temporarily rented it out or as a result of such a civil law transaction, he received income (including in a large or especially large amount), his deed does not entail criminal liability for illegal entrepreneurship.

Choosing a business entity

Having determined whether the planned activity is entrepreneurial, we further propose the following algorithm of actions for the taxpayer.

If the activity meets all the characteristics of an entrepreneurial one, then the taxpayer must register as an individual entrepreneur. Then you should find out whether the municipality (or the subject of the federation - for Moscow and St. Petersburg) at the place of business provides for a taxation system in the form of UTII for renting residential real estate. If UTII is provided, then an individual entrepreneur is obliged to register with the tax authorities at the place of implementation of the specified activity no later than five days from the beginning of the implementation of this activity and to pay a single tax imposed in these municipal districts, urban districts, cities of federal significance Moscow and St. Petersburg. If UTII is not provided, then an individual entrepreneur has the right to apply a general tax regime or a simplified taxation system.

If the activity does not formally meet the characteristics of an entrepreneurial, then, in our opinion, an individual, nevertheless, exercising his legal right to engage in entrepreneurial and any other activity not prohibited by law, has the right to carry out his activity as an entrepreneur in compliance with the necessary formalities, or act directly as an individual.

The choice between entrepreneurial and non-entrepreneurial activities or between one or another taxation system, if the activity is entrepreneurial, can also be made after assessing the tax consequences of rental activities in residential real estate carried out in one form or another (individual, individual entrepreneur applying UTII , common system, USN or USN based on a patent).

Tax implications of leasing residential property by an individual - not an entrepreneur

Purchase 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 that arose before 01.01.2008, the maximum deduction amount is 1 million rubles), but not more than actually incurred expenses;

interest on earmarked loans for the purchase or construction of residential real estate received from Russian organizations is accounted for in addition to RUB 2 million;

the deduction is provided once, but the deduction not fully used is carried over to the following years. However, the taxpayer is not entitled to use the deduction if:

payment was made at the expense of employers or other persons, maternity (family) capital, as well as at the expense of payments provided from the federal budget, the budgets of the constituent entities of the Russian Federation and local budgets,

the sale and purchase transaction was concluded with an individual who is interdependent with respect to the taxpayer in accordance with Art. 20 of the Tax Code of the Russian Federation (only if the relationship between the parties influenced the conditions and economic results of the concluded transaction);

material benefit (interest on the loan in 2009, the amount of which is less than 2/3) is not recognized as income if the taxpayer has the right to deduction;

parents with minor children and spending their own funds on the acquisition of real estate objects in common with the children share ownership, have the right to apply a property deduction in accordance with the actual expenses incurred;

the deduction can be received either from the tax authority at the end of the year, or from the employer before the end of the year (if there is a notification from the tax authority) (letter of the Ministry of Finance of Russia dated 20.05.08 No. 03-04-06-01 / 146);

overpaid tax can be refunded at the request of an individual by a tax agent.

Renting out real estate... When real estate is rented out, income is taxed at a rate of 13%; when rented to another individual, the taxpayer independently pays tax at the end of the year.

If real estate is leased to an individual entrepreneur or legal entity, the lessee (tax agent) withholds tax at the time of income payment.

Expenses related to the renovation of real estate and other expenses related to real estate can be accounted for only within the tax deduction (2 million rubles), i.e. they actually "drop out" from the tax base (until the moment of sale).

Alienation of real estate... Consider the main points when disposing of real estate:

• 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 sale value, if 3 years or more;

the deduction is granted repeatedly;

if a share in property is sold, allocated in kind and is an independent object of individual property rights, then the property deduction is applied by the owner in full without distributing the total amount of the deduction among other property owners (Resolution of the Constitutional Court of the Russian Federation of 13.03.08 No. 5-P);

the taxpayer has the right not to apply the property deduction, but to reduce the income received from the sale of property by expenses related to the receipt of these income, expenses must be documented;

replacement is either made in relation to all sold objects, or not at all (letter from the Federal Tax Service of Russia in Moscow dated 04.23.08 No. 28-10 / 039332);

property tax deduction for income received from the sale of property is provided by the tax authority, the tax agent (in particular, the employer) does not provide this deduction (resolution of the Federal Antimonopoly Service 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 the income from the sale of property was received, on the basis of an application by an individual submitted to the tax authority along with a tax return;

overpaid tax can be refunded at the request of an individual by a tax agent in the same manner as the property tax deduction upon the acquisition of real estate.

An important point is also that when buying, selling and leasing residential real estate (i.e. at each stage of the considered activity), an individual does not pay VAT.

Let's calculate the amount of tax liabilities of an individual, taking conditionally the cost of an apartment for 10 million rubles, the cost of renting - 45 thousand rubles. per month, assuming for the sake of simplicity of calculations that in the year of purchase and the year of sale of the apartment, the lease is not carried out.

Acquisition

Deduction - 2,000,000 rubles, 8,000,000 rubles. are not included in the tax base;

The deduction used for the first year is RUB 720,000.

Tax base - 0 rubles, personal income tax - 0 rubles. (including deduction and refund of withholding tax).

Rental

PL income (salary) - 720,000 rubles. in a year;

FL income from leasing - 540,000 rubles. (45,000 rubles x 12 months);

Total for the year - 1,260,000 rubles.

Transferred deduction - 1,280,000 rubles.

Personal income tax - 0 rubles. [(1,260,000 - 1,280,000) x 13%] for the first year, for the next -163,800 rubles. (the 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)

PL income (wages) for the year - 720,000 rubles. (60,000 rubles x 12 months);

The deduction in the amount of the selling value of real estate - 8,000,000 rubles, which were not included in the tax base upon acquisition - in fact, sales are tax-free

Tax base - 720,000 rubles, personal income tax - 93,600 rubles.

Sole proprietor: an overview of tax regimes in relation to the rental of residential real estate

General tax regime.

An individual entrepreneur is a VAT taxpayer, which means that when renting out real estate, there will be an object of VAT taxation. Accounting for income and expenses is regulated by order of the Ministry of Finance of Russia dated 13.08.02 No. 86n, the Ministry of Taxes and Tax Collection of the Russian Federation No. BG-3-04 / 430 "On approval of the procedure for accounting for income and expenses and business transactions for individual entrepreneurs", in which a number of issues are not settled (for example, there is no right to use the depreciation bonus, which is important for the situation under consideration due to the fact that residential real estate is a depreciable property; the consequences of the sale of depreciable property have not been settled).

In the opinion of the tax authorities, an apartment cannot be classified as an item of fixed assets, which means that depreciation deductions cannot be accepted as expenses (letter of the Ministry of Taxes and Taxes of the Russian Federation dated 06.07.04 No. 04-3-01 / 398). In our opinion, this position is unfounded, because an apartment as a "means of production" does not differ in any way, for example, from hotels or office centers, to which such claims do not arise due to their obvious absurdity.

Thus, the application of this tax regime in relation to the activity in question, it is inappropriate, there is a risk of a dispute with the tax authorities (this conclusion is general and must be adjusted in relation to a specific situation, for example, if it is planned to rent out real estate to a legal entity, the latter may be interested in obtaining VAT deductions).

UTII.

In this case, it is not possible to take into account the costs, which is unprofitable both at the stage of acquisition and at the stage of renting out real estate, and there is no need to pay VAT.

Thus, the application of this tax regime in relation to the activity in question, in our opinion, is inappropriate due to the impossibility of accounting for expenses. We remind you that in the case of the introduction of UTII in the prescribed manner, it is possible to avoid the application of this tax regime only by carrying out activities without registering as an individual entrepreneur.

STS.
With the simplified tax system, the following must be taken into account:

expenses on fixed assets must be accounted for during the tax period evenly and recognized as of the last date of the reporting (tax) period;

the possibility of transferring losses to the future, but not more than for 10 tax periods;

these rules can be implemented in the case of the application of the taxation object “income reduced by the amount of expenses” and, accordingly, the tax rate is 15%, however, the subjects of the federation have the right to lower the rate to 5% depending on the taxpayer category (clause 2 of article 346.20 of the Tax Code 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 the simplified taxation system (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 the simplified tax system, such as the minimum tax and the need to recalculate and pay tax according to the depreciation rules in certain cases (in the case of the sale of fixed assets under the conditions specified in the last paragraph. Clause 3 of article 346.16 of the Tax Code of the Russian Federation) ...

Thus, the simplified tax system is the optimal tax regime for renting real estate, allowing to take into account the expenses incurred, however, the organization of activities using the simplified tax system requires a more balanced and professional tax planning.

USN based on a patent... A patent can be obtained only if a law on the possibility of using the patent simplified tax system for a specific type of activity has been adopted in the corresponding constituent entity of the Russian Federation. Taxation consists in paying the cost of a patent, the calculation formula for which is given in the Tax Code of the Russian Federation and depends on the potential annual income determined by the law of a constituent entity of the Russian Federation. Expenses are not recognized for tax purposes.

Thus, in our opinion, the application of this tax regime in relation to the activities in question is inappropriate due to the impossibility of accounting for costs.

Tax implications of leasing residential real estate by an individual - an individual entrepreneur using the simplified tax system

Let us consider the tax consequences of using the simplified tax system as the most optimal, from our point of view, tax regime for the purpose of renting out real estate. This conclusion refers to a certain average situation and can be adjusted taking into account specific circumstances.

Acquisition of real estate... The cost of real estate is accounted for during the tax period on a straight-line basis and is recognized at the last date of the reporting (tax) period.

An individual entrepreneur in the certificate of state registration must include such a type of economic activity as "Operations with real estate, rent and provision of services" (letter of the Ministry of Taxes and Taxes of the Russian Federation dated 06.07.04 No. 04-3-01 / 398).

If for the tax period the amount calculated in general order tax is less than the amount of the calculated minimum tax, then the minimum tax is paid in the amount of 1% of the income, while the difference between the amount of the calculated tax and the amount of the minimum income can be carried forward as a loss for the future.

Interest on loans can be attributed to expenses according to the rules established for legal entities (1.5 Central Bank rates on loans in rubles or 22% in foreign currency).

Renting out real estate... Revenues are reduced by documented and economically justified 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 by advance payments, the final payment occurs at the end of the year (letter of the Ministry of Taxes and Tax Collection of the Russian Federation dated 06.07.04 No. 04-3-01 / 398).

Property For Sale... Revenue is recognized on a general basis when payment is received in the amount of revenue received. At the time of sale, it is impossible to reduce income by the cost of fixed assets (letters of the Ministry of Finance of Russia dated April 18, 2007 No. 03-11-04 / 2/106, dated May 27, 05 No. 03-03-02-04 / 1/131).

When selling fixed assets, in some cases, it is necessary to recalculate the already accounted expenses and the tax itself, pay it and penalties, submit the specified tax returns, which depends on two factors:

term useful use fixed assets;

the time that has passed since the accounting for the purchase (creation) of a fixed asset or since such acquisition (creation).

Recalculation is required, in particular, for fixed assets: the useful life of which is more than 15 years, if they were sold within 10 years from the date of acquisition (creation, manufacture); these also include living quarters (the last depreciation group, useful life of 30 years; in the case of purchasing a previously used residential space, documentary evidence of the period of use should be obtained, for example, draw up an OS-1 act).

The recalculation of tax consists in the fact that for past periods it is necessary to exclude expenses that have already been accounted for for such fixed assets, and it is necessary to calculate depreciation according to the rules of Ch. 25 of the Tax Code of the Russian Federation.

Since residential premises belong to the last depreciation group (useful life of 30 years), the amount of monthly expenses in case of tax recalculation according to depreciation rules will be significantly reduced.

The term of use of the property by the previous owner must be documented (preferably in the OS-1 form), i.e. when purchasing a “resale property” and properly confirming the useful life, depreciation charges may increase.

To assess the tax consequences, it is necessary to take into account that an individual entrepreneur also pays contributions to the Pension Fund of the Russian Federation in the form of a fixed payment, calculated based on the cost of the insurance year (in 2008, the cost of the insurance year was 3864 rubles).

Let's calculate the amount of tax liabilities of an individual entrepreneur, taking the cost of an apartment for 10 million rubles, the cost of renting - 45 thousand rubles. per month, assuming for the sake of simplicity of calculations that in the year of purchase and the year of sale of the apartment, the lease is not carried out. The cost of the apartment is 10,000,000 rubles, the apartment is new.

Acquisition: income - 0 rubles, expenses - 10,000,000 rubles. per year, are fully transferred as losses to the future (no more than 10 years), the tax base is 0 rubles, the minimum tax is 0 rubles. (since there is no income).

Rental: rental income 540,000 rubles. (45,000 rubles x 12 months). The transferred loss amounted to RUB 540,000. per year (in order to “use” the loss in full for 10 years, it is advantageous to simultaneously engage in other income-generating activities as well).

Tax base = 0 rubles, Minimum tax = 5 400 rubles.

Personal income tax = 720,000 (salary, provided that in addition to renting an apartment, an individual also works under an employment contract) * 13% = 93,600 rubles. per year, total for the year 99,000 rubles. (for comparison, when renting real estate to an individual entrepreneur, the tax amount will be 0 rubles (for the 1st year), for the next 163,800 rubles)

Sale(more than 10 years later): price - 5,000,000 rubles, tax (15%) - 750,000 rubles. (in the absence of expenses, therefore, for the period of sale, you can plan expenses that will cover the income received).

When selling, it is also important to take into account that if the income limit established for the application of the simplified tax system is exceeded, then 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 was allowed.

Thus, the choice of the form of doing business is predetermined by the answer to the question whether it is an entrepreneurial activity or not. If it is, then an individual must register as an individual entrepreneur. If the activity is not entrepreneurial, then it hardly makes sense to obtain the status of an individual entrepreneur: these are, as a rule, cases when an individual rents out one apartment, for example, inherited, has the opportunity to pay his 13% tax and be limited to filing declarations once a year, avoiding the complexities of tax administration and the intricacies of tax planning. This, however, does not exclude the conduct of activities as an individual entrepreneur, which, with proper planning and legally correct registration, will allow you to manage your tax payments.

How to use the "simplified" code correctly Kurbangaleeva Oksana Alekseevna

Income from renting out property

According to paragraph 4 of Art. 250 of the Tax Code of the Russian Federation, income from the lease of property belongs to the non-operating income of the enterprise, provided that the lease of property is not the main activity of the enterprise.

It should be borne in mind that the location of the property being leased does not matter. The “simplified” organization must pay a single tax on the rent at the place of its location (letter of the Ministry of Finance of Russia dated 02.12.2005 No. 03-11-04 / 2/143).

When concluding a lease agreement, the income of the lessor applying the simplified taxation system is the amount of the actually received rent. The rent can be set not only in the fixed amount of payments that the tenant is obliged to make on a monthly basis. Clause 2 of Art. 614 of the Civil Code of the Russian Federation provides for the payment of the lease of property by:

- payment of a share of income received as a result of the use of the leased property;

- provision of certain services by the lessee;

- transfer of the thing specified in the contract by the lessee to the lessor for ownership or lease;

- imposing on the tenant the costs of improving the leased premises, which are stipulated by the lease agreement.

The parties may provide in the lease agreement for a combination of the specified forms of rent or other forms of payment for rent.

Therefore, income from the lease of property arises regardless of whether it is received in the form of cash, property or in the form of transferring to the lessor the costs of improving the leased property (letter of the Department of the Ministry of Taxes and Tax Collection of Russia in Moscow dated 01.07.2004 No. 21-09 / 43685) ... In the latter case, the date of recognition of income will be the day of signing the acceptance certificate for the work performed. Based on this act, the accountant makes the appropriate entries in the ledger of income and expenses.

Suppose that an organization applying the simplified taxation system rents out non-residential premises that it owns. Under the terms of the lease agreement, the lessee reimburses the lessor for the costs of electricity, water supply, heat supply, etc.

In this case, the amount of reimbursement of operating and utility costs should be included in the structure of non-operating income (letters of the Ministry of Taxes and Tax Collection of Russia dated May 11, 2004 No. 22-1-14 / 881 and the Office of the Federal Tax Service of Russia for Moscow dated September 29, 2005 No. 18-11 / 3/69533).

The same position is adhered to by the specialists of the Ministry of Finance of Russia (letters of the Ministry of Finance of Russia dated 17.11.2008 No. 03-11-05 / 274, dated 27.02.2004 No. 04-02-05 / 1/19, dated 02.02.2005 No. 03-03-02 -04/2/2 and dated 05.09.2007 No. 03-11-05 / 215).

In this case, it does not matter whether the lessee transfers the funds to the account of the lessor or directly to the energy and water supply organizations (letter of the Ministry of Finance of Russia dated 16.08.2005 No. 03-11-04 / 2/48).

At the same time, the lessor can include in its expenses its costs of paying for utilities for the premises that are leased (letters of the Ministry of Finance of Russia dated 22.08.2005 No. 03-11-04 / 2/57 and the Office of the Federal Tax Service of Russia in Moscow dated 15.01.2007 No. 18-8 / 3/02040), but only on condition that he chose income, reduced by the amount of expenses, as an object of taxation.

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General rental provisions

As a rule, the lease of an office means the lease of one or more premises in the building, which are supposed to be used for office purposes. In accordance with paragraph 1 of Article 130 of the Civil Code, immovable things (immovable property, real estate) include everything that is firmly connected with the land, that is, objects, the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures. Thus, a separate room in a building is immovable property.

The procedure for concluding and executing a lease agreement for real estate is regulated as general provisions Of the Civil Code on Leasing, contained in paragraph 1 of Chapter 34 "Rent", and the rules of paragraph 4, which regulates the lease of buildings and structures. In this case, the norms of paragraph 4 of Chapter 34 of the Civil Code have priority, since they are special in relation to general norms. These rules fully apply to the rental of individual premises.

A lease agreement, like any transaction, at least one of the parties to which is a legal entity, must be concluded in a simple written form (subparagraph 1 of clause 1 of article 161 of the Civil Code of the Russian Federation).

Under a lease agreement, the lessor undertakes to provide the lessee with the property for a fee for temporary possession and use or for temporary use (Article 606 of the Civil Code of the Russian Federation). The lessee is obliged to use the leased property in accordance with the terms of the lease agreement (clause 1 of article 615 of the Civil Code of the Russian Federation). The lessee is obliged to maintain the property in good condition, to produce at his own expense Maintenance and bear the cost of maintaining the property, unless otherwise provided by law or by the lease agreement (clause 2 of article 616 of the Civil Code of the Russian Federation). If the lessee made, at his own expense and with the consent of the lessor, inseparable improvements to the leased property, the lessee has the right, after the termination of the contract, to reimburse the cost of these improvements, unless otherwise provided by the lease agreement (clause 2 of article 623 of the Civil Code of the Russian Federation).

Under a lease agreement for a building or structure, the lessor undertakes to transfer a building or structure for temporary possession and use or for temporary use to the lessee (clause 1 of article 650 of the Civil Code of the Russian Federation). The transfer of a building or structure by the lessor and its acceptance by the lessee are carried out according to a deed of transfer or other transfer document signed by the parties (Article 655 of the Civil Code of the Russian Federation).

Upon termination of the lease agreement, the rented building or structure must be returned to the lessor in compliance with the rules arising from the transfer of the building or structure by the lessor to the lessee.

According to paragraph 1 of Article 654 of the Civil Code, a lease agreement for a building or structure must provide for the amount of rent. In the absence of a condition on the amount of rent agreed by the parties in writing, the lease agreement for a building or structure shall be deemed not concluded. At the same time, in cases where the rent for a building or structure is set in an agreement per unit area of ​​a building (structure), the rent is determined on the basis of the actual size of the building or structure transferred to the tenant (clause 3 of article 654 of the Civil Code of the Russian Federation).

In practice, the amount of rent when renting an office in most cases is set exactly like this: a certain amount of rent per month or per year per square meter.

Registration of the contract

In accordance with article 4 of the Law of 21.07.1997, No. 122-FZ "On state registration of rights to real estate and transactions with it" transactions with real estate are subject to mandatory state registration. This provision is also contained in article 131 of the Civil Code. However, paragraph 2 of Article 651 of the Code specifies that a lease agreement for a building or structure, concluded for a period of at least a year, is subject to state registration and is considered concluded from the moment of such registration. Thus, a lease agreement concluded for a period of less than a year is not subject to mandatory registration. This is confirmed by the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 01.06.2000 No. 53.

In practice, lease agreements for individual premises, in order to avoid unnecessary trouble associated with the need to register the agreement, in the overwhelming majority of cases are concluded for a period of less than one year; at the end of the contract, a new contract is concluded.

In accordance with Article 19.21 of the Code of Administrative Offenses, failure to comply with the established procedure for state registration of rights to real estate or transactions with it entails the imposition of an administrative fine on legal entities from 30 to 40 thousand rubles.

Execution of documents for accepting payments for expenses

In practice, when renting a property, the question often arises: what are the primary documents confirming the lessor's income and the lessee's expenses are required? Is the landlord obliged to sign with the tenant on a monthly basis an act of completed work (services rendered)? In large business centers, where the number of tenants is in the hundreds, signing with each of them the "Act for the provision of services for renting premises" requires a lot of time and labor resources. However, tenant accountants sometimes fear whether they have a reason to charge rent as an expense for accounting and tax accounting in the absence of such an act? Let's try to figure it out.

In the Civil Code, lease relations are regulated by Chapter 34, and the provisions on the provision of services for a fee - by Chapter 39. Clause 2 of Article 779 of the Civil Code explains that the rules of Chapter 39 apply to contracts for the provision of communication services, medical, veterinary, auditing, consulting, information services , training services, tourist services and other services. Chapter 34 makes no reference to the fact that certain provisions of a paid service agreement may apply to leases. Consequently, rent is not a service, but a separate type of business activity.

This was confirmed, for example, by the letter of the Ministry of Finance dated October 26, 2004, No. 03-03-01-04 / 1/86, signed by the Deputy Director of the Department of Tax and Customs Tariff Policy A.I. Ivaneev. According to the Ministry of Finance, lease payments paid under a lease agreement for non-residential premises should be included in other expenses, provided that they are justified and confirmed by the relevant primary documents (lease agreement, act of acceptance and transfer, invoices for payment lease payments, payment orders, etc.). As you can see, the act of work performed (services rendered) among required documents not named.

About a year later, a letter from the Federal Tax Service of the Russian Federation of 05.09.2005, No. 02-1-07 / 81 "On confirmation of business transactions with primary accounting documents" appeared, which says the following: "If the contracting parties have concluded a lease agreement and signed an act of acceptance and transfer of property, which is the subject of lease, then it follows that the service is implemented (consumed) by the parties to the contract, and, therefore, organizations have a reason to include in the tax base for income tax the amounts of income from the sale of such a service (from the lessor) and expenses in connection with the consumption of the service (at the lessee).

These grounds arise for organizations, regardless of the signing of the act of acceptance and transfer of services, especially since the requirement for the compulsory drawing up of acts of acceptance and transfer of services in the form of lease is not provided for either by the Tax Code or by the legislation on accounting. "

Despite the fact that the FTS called leasing a service, it nevertheless admits that a bilateral act is not required here.

However, quite recently, the Ministry of Finance issued another letter dated 07.06.2006, No. 03-03-04 / 1/505, in which it expressed the opinion that the monthly drawing up of an act on the provision of services for renting real estate is mandatory. Note that this letter was also signed by Mr. A.I. Ivaneev. During this period (1 year and 7 months), there were no changes in the civil legislation concerning rental relations. In clause 1 of Article 252 of the Tax Code, the Law of 06.06.2005, No. 58-FZ, introduced amendments, which made it possible to confirm expenses not only with documents drawn up in accordance with the legislation of the Russian Federation, but also with documents indirectly confirming the expenses incurred. Thus, adherence to strict rules in the preparation of documents is no longer a prerequisite for recognizing expenses, it is enough to submit any documents confirming the expenses incurred. Therefore, the last letter of the Ministry of Finance against the background of these positive changes for taxpayers looks at least strange.

Regarding the issuance of invoices to the lessee, traditionally a rental invoice is issued on the last day of each month.

Income and expenses of the landlord. Accounting and taxation

Income

Accounting

If the lessor is an organization for which the leasing of office space is the main (or one of the main) types of activity, its income can be formed both from the rent itself and from income from the provision of additional services to tenants (for example, cleaning services for office premises ). The accounting of income from rent and from the provision of additional services is kept on account 90 "Sales". In accordance with clause 5 of the Accounting Regulations "Income of the organization" (PBU 9/99), approved by order of the Ministry of Finance of the Russian Federation dated 06.05.1999, No. 32n (hereinafter referred to as PBU 9/99), these incomes are recognized as income from ordinary types activities. If the lease of premises is of a one-time, random nature, these incomes are operational (p. PBU 9/99) and are recorded on account 91 "Other income and expenses".

Value added tax

If the lessor is a VAT payer, then his income from rent and the provision of additional services are subject to VAT (subparagraph 1 of paragraph 1 of article 146 of the Tax Code of the Russian Federation). If the tenant of the premises is a foreign citizen or a foreign organization accredited in the Russian Federation, then the rent will not be subject to VAT (clause 1 of article 149 of the Tax Code of the Russian Federation).

However, this provision applies in cases where the legislation of the respective foreign state establishes a similar procedure for citizens of the Russian Federation and Russian organizations accredited in this foreign state, or if such a norm is provided for by an international treaty (agreement) of the Russian Federation. The list of foreign states, in relation to citizens and (or) organizations of which the norms of this paragraph are applied, is determined by the federal executive body in the field of international relations together with the Ministry of Finance of the Russian Federation. In the Letter of the Federal Tax Service of the Russian Federation dated May 18, 2005 No. KB-6-26 / [email protected]“On the application of exemption from taxation by value added tax for rental services rendered to foreign citizens and organizations accredited in the Russian Federation” explains which documents establish the relevant lists that should be followed at the present time.

Income tax

Income from the lease of property is accounted for as income from sales, if the lease of premises is the main (or one of the main) type of activity (clause 1 of Art. 249 of the Tax Code of the Russian Federation). In other cases, these incomes are non-operating (clause 4 of article 250 of the Tax Code of the Russian Federation).

Costs

Organizations that are engaged in the rental of office space on a permanent basis, as a rule, incur a variety of costs. These include:

• utility costs (payment for electricity, water, heat supply services under contracts concluded directly with power supply organizations or as a sub-subscriber through the connected network (Article 545 of the Civil Code of the Russian Federation));
• expenses (cleaning, minor repairs, washing windows) for the maintenance of rented premises and common areas (halls, corridors, toilets);
• maintenance costs of complex units and systems located in the building (elevators, escalators, ventilation systems, alarms, etc.);
• expenses for payment to specialized organizations for the sanitization of premises (deratization, disinfection, disinfestation);
• expenses for the current and major repairs of premises and common areas;
• security costs;
• rental costs (if the lessor is himself a tenant of the premises and subleases them);
• land tax or lease expenses land plot in the amount of his share (if the lessor is the owner of the premises);
• real estate insurance costs;
• other expenses for the maintenance of premises and the building in which they are located.

Let's dwell on the most general and topical points. In accordance with clause 5 of the accounting regulation "Expenses of the organization" (PBU 10/99), approved by order of the Ministry of Finance of Russia dated 06.05.1999, No. 33n in organizations whose subject of activity is the provision for a fee for temporary use of their assets under a lease agreement , expenses for ordinary activities are expenses, the implementation of which is associated with this activity. In other cases, in accordance with paragraph 11 of PBU 10/99, these costs are operational.

For tax accounting purposes, they can be accepted only if they are justified and documented (clause 1 of article 252 of the Tax Code of the Russian Federation). If the activity of renting premises for rent is of a permanent nature, these costs relate to costs associated with production and sale on the basis of subparagraph 2 of paragraph 1 of Article 253 of the Tax Code (costs of maintenance and operation, repairs and Maintenance fixed assets and to maintain them in good condition). In other cases (expenses for the maintenance of the property transferred under a lease agreement), these expenses are classified as non-operating (subparagraph 1 of clause 1 of article 265 of the Tax Code of the Russian Federation).

In practice, sometimes a situation arises (most often, if the lease of premises is not the main activity for the lessor), when the lessor “re-charges” the lessee a part of his utility costs for paying for electricity, water, heat and issues an invoice to him. According to the Ministry of Finance, expressed in a letter dated 03.03.2006, No. 03-04-15 / 52, this is unlawful, since the lessor cannot be an energy supplying organization for the tenant, since he himself receives electricity as a subscriber to supply the building from the energy supplying organization. These expenses cannot be accepted from the lessee for income tax purposes, and VAT on them cannot be deducted. The lessor can increase the rent for the amount of electricity, water, and heat consumed by the lessee.

When accounting for expenses for the purposes of accounting and tax accounting for the repair and maintenance of the building as a whole and its engineering systems, sometimes questions arise in cases where the lessor is not the only owner of the building, but owns separate premises in it, while the rest of the premises belong to other owners (one or several). If these costs are borne by one of the owners, they can hardly be considered fair and reasonable in full. In this case, you should conclude an agreement on joint activities(simple partnership agreement) with the rest of the owners and be guided by Chapter 55 of the Civil Code and the Accounting Regulations "Information on participation in joint activities" (PBU 20/03), approved by order of the Ministry of Finance of the Russian Federation of November 24, 2003 No. 105n.

Tenant expenses. Accounting and taxation

Income tax

The tenant also incurs expenses in connection with renting an office. Let's dwell on some of them.

Inseparable improvements to the leased property, plant and equipment have been included in depreciable property since 2006 (Law of 06.06.2005 No. 58-FZ). In accordance with paragraph 1 of Article 258 of the Tax Code, capital investments in leased fixed assets made by the lessee with the consent of the lessor, the value of which is not reimbursed by the lessor, are amortized by the lessee during the lease term based on the depreciation amounts calculated taking into account the useful life determined for leased items of property, plant and equipment in accordance with the Classification of property, plant and equipment. This means that if at the end of the lease the useful life of the capital investment does not end, then at the end of the lease term, the lessee must still stop depreciating the depreciable property in the form of capital investments in the form of inseparable improvements. If the lease is prolonged, the organization can continue to accrue depreciation in accordance with the established procedure.

If the cost of the inseparable improvements is reimbursed to the lessee by the lessor, then the lessor will amortize them. In accordance with paragraph 2 of Art. 259 of the Tax Code of the Russian Federation, the accrual of depreciation on depreciable property in the form of capital investments in objects of leased fixed assets, which, in accordance with this chapter, is subject to depreciation, begins with the tenant from the 1st day of the month following the month in which this property was put into operation. Clarifications on these issues are contained in the letter of the RF Ministry of Finance dated March 15, 2006 No. 03-03-04 / 1/233.

Shelest LLC rents office space at OOO Delovoy Tsentr and in May 2006, with the consent of the lessor, made inseparable improvements in the rented premises (installed a fire alarm worth 30,000 rubles, including VAT - 4,576 rubles). In accordance with the Classification of fixed assets included in the depreciation groups, approved by the RF Government Decree of 01.01.2002, No. 1, the fire alarm belongs to the fourth group. The useful life is from 5 to 7 years. The commission set a useful life of 61 months. The lease expires in 3 years (36 months). Accounting will following postings:

The procedure for paying VAT when renting state property

If the lessor (and the owner of the property) are state authorities, local authorities and state property (federal property, property of the constituent entities of the Russian Federation or municipal property) is leased, the tenant becomes a tax agent and is obliged to calculate the tax base for VAT (Article 161 of the Tax Code of the Russian Federation) ... According to paragraph 3 of Article 161, the tax base is determined as the amount of rent, including tax. In this case, the tax base is determined by the tax agent separately for each leased property. In this case, lessees are recognized as tax agents, who are obliged to calculate, withhold from the income paid to the lessor and pay the corresponding amount of tax to the budget.

The amount of tax payable to the budget is calculated and paid by tax agents in full (clause 4 of article 173 of the Tax Code of the Russian Federation). In this case, tax amounts paid by buyers - tax agents on the basis of documents confirming the payment of tax amounts (Article 171 of the Tax Code of the Russian Federation) are subject to deductions.

Buyers - tax agents registered with the tax authorities and acting as a taxpayer have the right to these tax deductions. According to paragraph 1 of Article 172 of the Tax Code, tax deductions are made on the basis of documents confirming the payment of tax amounts withheld by tax agents.

The organization leases office space in a building that has been publicly owned since January 2006. The rent, including VAT, is 23,600 rubles. per month. The amount of VAT is transferred to the budget at the same time as the rent. In January, the following transactions are made: Debit 20, 26 Credit 76 - 20,000 rubles. - the rent is charged for the month; Debit 19 Credit 68 / A - 3 600 rubles. (23 600 rubles x 18/118%) - VAT charged on the rent; Debit 76 Credit 51 - 20,000 rubles. - the rent for the month is listed; Debit 68 / A Credit 51 - 3 600 rubles. - VAT was transferred to the budget (duties of a tax agent were fulfilled). In the same month, circumstances arose for the acceptance of VAT for deduction, which was reflected by the entry: Debit 68 Credit 19 - 3 600 rubles. - VAT amount accepted for deduction based on the invoice issued by the lessee. This amount is reflected in the declaration for January 2006 in the section "Tax deductions", line 260.