Head of the Internal Audit Department of the group of companies "BEST. Real estate management»

General rental provisions

Typically, an office lease refers to the lease of one or more rooms in a building that are intended to be used for office purposes. In accordance with paragraph 1 of Article 130 of the Civil Code, immovable things (real estate, real estate) include everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including buildings, structures. Thus, a separate room in the building is real estate.

The procedure for concluding and executing a real estate lease agreement is regulated as general provisions of the Civil Code on Lease, contained in paragraph 1 of Chapter 34 "Rent", and the rules of paragraph 4, which governs the lease of buildings and structures. At the same time, 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 of which is a legal entity, must be concluded in a simple written form (subclause 1, clause 1, article 161 of the Civil Code of the Russian Federation).

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

Under a lease agreement for a building or structure, the lessor undertakes to transfer the building or structure to the tenant for temporary possession and use or for temporary use (clause 1, 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 tenant are carried out according to the transfer act 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 leased 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, the lease agreement for a building or structure must provide for the amount rent. In the absence of a condition on the amount of rent agreed upon by the parties in writing, the lease agreement for a building or structure is considered not concluded. At the same time, in cases where the payment for the lease of a building or structure is established in the contract per unit area of ​​the building (structure), the rent is determined based on the actual size of the building or structure transferred to the tenant (clause 3, article 654 of the Civil Code of the Russian Federation).

In practice, the amount of rent for renting an office in most cases is set in this way: 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 July 21, 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 clarifies 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 also confirmed by the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 1, 2000 No. 53.

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

In accordance with Article 19.21 of the Code of administrative offenses non-observance of the established procedure for state registration of rights to real estate or transactions with it administrative fine on the legal entities from 30 to 40 thousand rubles.

Preparation of documents for acceptance of payments to expenses

In practice, when renting property, the question often arises: what primary documents confirming the income of the landlord and the expenses of the tenant are needed? Is the landlord obliged to sign an act of work performed (services rendered) with the tenant on a monthly basis? In large business centers, where the number of tenants is in the hundreds, signing the "Act for the provision of services for renting premises" with each of them requires a lot of time and labor resources. However, accountants of tenant firms sometimes fear whether they have reason to attribute the rent to expenses for the purposes of 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. Paragraph 2 of Article 779 of the Civil Code clarifies 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 does not contain any reference to the fact that separate provisions of the contract for the provision of services may apply to lease agreements. Therefore, 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, rent payments paid under the lease agreement non-residential premises, are subject to inclusion in the composition of other expenses, subject to their validity and confirmation by the relevant primary documents (lease agreement, acceptance certificate, invoices for payment of rental payments, payment orders, etc.). As you can see, the act of work performed (services rendered) among required documents not named.

Approximately a year later, a letter of the Federal Tax Service of the Russian Federation dated 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 a lease, it follows that the service is sold (consumed) by the parties to the contract, and, therefore, organizations have grounds for including 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 tenant).

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

Despite the fact that the Federal Tax Service has called the lease a service, it still recognizes that drawing up a bilateral act is not required here.

However, more recently, the Ministry of Finance issued another letter dated June 7, 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 real estate rental services is mandatory. Note that this letter was also signed by Mr. A.I. Ivaneev. During this period (1 year and 7 months) no changes in the civil legislation regarding lease relations, Did not happen. In paragraph 1 of Article 252 of the Tax Code, the law of June 6, 2005 No. 58-FZ was amended, which made it possible to confirm expenses not only with documents drawn up in accordance with the law Russian Federation but also documents indirectly confirming the expenses incurred. Thus, compliance with strict rules when processing documents is no longer a prerequisite for the recognition of expenses, it is enough to provide any documents confirming the expenses incurred. Therefore, the latest letter from the Ministry of Finance against the background of these positive changes for taxpayers looks at least strange.

With regard to the issuance of invoices to the tenant, traditionally the lease invoice is issued on the last day of each month.

Landlord's income and expenses. Accounting and taxation

Income

Accounting

If the landlord is an organization for which the leasing of office space is the main (or one of the main) activities, its income may consist of both the rent itself and income from the provision of additional services to tenants (for example, office cleaning services). ). Accounting for income from rent and from the provision of additional services is kept on account 90 "Sales". In accordance with paragraph 5 of the Accounting Regulation "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 (clause PBU 9/99) and are accounted for on account 91 “Other income and expenses”.

value added tax

If the landlord is a VAT payer, then his income from rent and the provision of additional services is subject to VAT (subclause 1, clause 1, 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, article 149 of the Tax Code of the Russian Federation).

However, this provision applies in cases where the legislation of the relevant foreign state establishes a similar procedure for citizens of the Russian Federation and Russian organizations accredited in this foreign state, or if such a rule is provided for by an international treaty (agreement) of the Russian Federation. The list of foreign states, in respect of whose citizens and (or) organizations the norms of this paragraph are applied, is determined by the federal executive body in the field of international relations jointly 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 services for the rental of premises provided to foreign citizens and organizations accredited in the Russian Federation" explains which documents establish the relevant lists that should be followed at present.

income tax

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

Expenses

Organizations that rent office space on a permanent basis, as a rule, have a variety of costs. These include:

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

Let's dwell on the most general and relevant points. In accordance with paragraph 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 of their assets for temporary use under a lease agreement for a fee , expenses for ordinary activities are considered expenses, the implementation of which is associated with this activity. In other cases, in accordance with clause 11 of PBU 10/99, these expenses are operating.

For the purposes of tax accounting, they can be accepted only if they are substantiated and documented (clause 1, article 252 of the Tax Code of the Russian Federation). If the activity of renting premises is of a permanent nature, these costs are related to the costs associated with the production and sale on the basis of subparagraph 2 of paragraph 1 of Article 253 of the Tax Code (expenses for maintenance and operation, repair and Maintenance fixed assets and to maintain them in good condition). In other cases (expenses for the maintenance of the property transferred under the lease agreement), these expenses are classified as non-sales expenses (subclause 1, clause 1, 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 landlord), when the landlord “re-issues” to the tenant 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 letter No. 03-04-15/52 dated March 3, 2006, this is unlawful, since the lessor cannot be the energy supply organization for the tenant, since he himself, as a subscriber, receives electricity to supply the building from the energy supply organization. These expenses cannot be accepted from the tenant for income tax purposes, and VAT on them cannot be deductible. For the amount of electricity, water, heat consumed by the tenant, the landlord may increase the rent.

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 sole 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 recognized as fair and justified in full. In this case, an agreement must be joint activities(simple partnership agreement) with the rest of the owners and be guided by Chapter 55 of the Civil Code and the Accounting Regulation "Information on participation in joint activities" (PBU 20/03), approved by order of the Ministry of Finance of the Russian Federation dated November 24, 2003 No. 105n.

Tenant's expenses. Accounting and taxation

income tax

The tenant also incurs costs in connection with the lease of the office. Let's dwell on some of them.

Inseparable improvements to leased fixed assets have been included in depreciable property since 2006 (Law No. 58-FZ of June 6, 2005). 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 cost of which is not reimbursed by the lessor, are depreciated by the lessee during the term of the lease agreement based on the depreciation amounts calculated taking into account the period beneficial use 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 capital investments does not end, then at the end of the lease term, the tenant must still stop accruing depreciation on the depreciable property in the form of capital investments in the form of inseparable improvements. If the lease agreement is extended, the organization may continue to accrue depreciation in the prescribed manner.

If the cost of inseparable improvements is reimbursed to the lessee by the lessor, then the lessor accrues depreciation on them. In accordance with paragraph 2 of Art. 259 of the Tax Code of the Russian Federation, depreciation on depreciable property in the form of capital investments in 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. Explanations on these issues are contained in the letter of the Ministry of Finance of the Russian Federation dated March 15, 2006 No. 03-03-04/1/233.

LLC "Shelest" leases office space from LLC Delovoy Tsentr and in May 2006, with the consent of the landlord, made inseparable improvements in the rented premises (installed a fire alarm at the cost of 30,000 rubles, including VAT - 4,576 rubles). In accordance with the Classification of fixed assets included in depreciation groups, approved by Decree of the Government of the Russian Federation of 01.01.2002 No. 1, fire alarms belong to the fourth group. The useful life is from 5 to 7 years. The Commission set a useful life of 61 months. The lease agreement expires in 3 years (36 months). In accounting there will be following postings:

The procedure for paying VAT when renting state property

If the landlord (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 rented out, 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, tenants are recognized as tax agents, who are obliged to calculate, withhold from the income paid to the lessor, and pay the appropriate 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, 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 are subject to deductions (Article 171 of the Tax Code of the Russian Federation).

The right to the specified tax deductions are buyers - tax agents, registered with the tax authorities and acting as a taxpayer. 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 has been renting office space in a building that has been state-owned since January 2006. The amount of rent, including VAT, is 23,600 rubles. per month. The amount of VAT is transferred to the budget simultaneously with the rent. The following postings are made in January: Debit 20, 26 Credit 76 - 20,000 rubles. - Monthly rent paid Debit 19 Credit 68 / A - 3,600 rubles. (23,600 rubles x 18/118%) - VAT charged on rent; Debit 76 Credit 51 - 20,000 rubles. - Monthly rent paid Debit 68/A Credit 51 - 3 600 rubles. — transferred to the VAT budget (tax agent duties performed). In the same month, circumstances arose for the acceptance of VAT for deduction, which was reflected in the posting: Debit 68 Credit 19 - 3 600 rubles. — the amount of VAT accepted for deduction based on the invoice issued by the tenant. This amount is reflected in the declaration for January 2006 in the section "Tax deductions", line 260.

Usually, certificates to confirm income are collected to obtain a large amount of a consumer loan, for a car loan, or a mortgage.

To obtain the required amount and confirm solvency, you should collect certificates confirming income.

Thus, in order to obtain the required loan amount and confirm solvency, the borrower should collect certificates that give the bank the opportunity to assess income - its size, frequency and consistency. And if everything is more or less clear with certificates confirming ownership of property, then collecting certificates confirming additional income causes many difficulties. For example, how to document the permanent income from the rental of property? Kredity.ru specialists offer to get acquainted with the legal aspects of obtaining a certificate that meets the requirements of the bank.

What is property rental and when will it be income

Many transfer their property for temporary use to third parties. It can be a car or housing or other property. For example, a car is given to relatives or acquaintances for free for a while or they are allowed to live in an apartment, but more often property is rented for a fee.

Only 10% of Russians submit information about their additional income to the tax authorities.

Uncompromising statistics claim that only 10% of Russians file a tax return at the end of the year and declare their income, the rest of the population does not want to advertise their income by evading taxes, which is a direct violation of tax laws, but you can’t argue with statistics.

Based on Art. 208.1.4 and Art. 209.1 of the Tax Code of the Russian Federation, a person who leases movable and immovable property and receives income from leasing property is a lessor and is obliged to submit a declaration of income received to the tax office at the place of its registration by April 30 of the year following the reporting period. The amount of income tax is calculated depending on the status of the taxpayer. An individual pays 13% of the amount of income received. Payment must be made by June 30 of the year following the reporting year.

Renting property in compliance with the law

Although many people complain that having concluded a lease agreement and receiving confirmed payments (payments are transferred by any means, including postal and electronic transfer of funds against the lease, cash is issued by an act of acceptance and transfer of funds).

The officially registered additional income from renting out an apartment is a confirmation for the bank.

Every year you have to calculate the rental income, report to the state and pay tax on the income received. But when the property is leased on the basis of a concluded agreement, the landlord receives guarantees for the safety of his property within the framework of the concluded agreement and can count on the protection of his interests in the legal field. The income that is received from the rental of property officially can be presented to the bank to confirm solvency.

Renting property informally

By informally (without a contract) renting out property and receiving income, but not reporting it to the state, you not only risk your property by 100%, but also deprive yourself of the opportunity to operate this income to obtain the required loan amount.

Not reporting to the state - you have no chance to fully use your source of income, but there is the possibility of being fined. If rental income is disclosed and recognized by the IRS, you can expect to recover uncollected amounts of tax and penalties from 5% to 30% of the income.

Moreover, if your income is disclosed by the state tax service and recognized, you can count on the collection of uncollected amounts of tax and fines from 5% to 30% of the amount of income.

How to make black white?

As noted above, the "black" income will not be trouble-free for a long time, the tax authorities are not asleep and have their own sources of information. In order to avoid problems with the tax, it is better to transfer your income to a legal basis, this can be done in the following ways:

• File an annual return and pay the appropriate tax as individual. How to calculate the rental income of an apartment? It is necessary to conclude a property lease agreement with the tenant, which will indicate the terms, amounts of monthly or quarterly payment, methods of payment, liability of the parties and details of the parties to the agreement. Based on the contract, you are obliged to submit an income declaration annually by April 15, indicating the amount of income received for the year. Not only a declaration is submitted to the tax office, but documents confirming your income. You are obliged to take into account and keep all receipts and acts of acceptance and transfer of means of payment for rent, since all income must be documented. as well as agreements with tenants and annexes to them. Interest rate on income for individuals. persons - 13%. In order to confirm the income from the rental of property, you provide your copy of the declaration and a tax receipt to the bank.
• Annually file a declaration and pay tax as an individual entrepreneur. Another solution to declare social income may be to register as an individual entrepreneur. Mandatory in this case, when registering, include this method of earning in the types of activities. What does registration as an individual entrepreneur give? Firstly, this is a noticeable reduction in the amount of tax on income: maybe 15% of the difference in income minus expenses or 6% on income. If you have large monthly expenses for the maintenance of property, then it would be advisable to choose the first option, if you mainly receive income, without significant costs, then it is better to choose the "Income" taxation system. Further, the procedure for concluding contracts, accepting payments and reporting is almost the same. The declaration is also submitted to the tax office annually at the same time. The difference is only in the system for calculating the amount of tax, and in this case, income is not confirmed by receipts, but by the book of income and expenses of the individual entrepreneur. The IP stores receipts and other documents in case the tax authorities wish to verify the accuracy of the information provided. For a bank, proof of income will also be the provided original declaration, receipt or payment order for tax payment, but, possibly, an income book.

Reliable information and supporting documents are important for any bank. And even if you were offered to fill out a certificate of your income in the form of a bank, without documentary evidence, the priority is the documents by which you can evaluate your real income: a 2-NDFL certificate, income declaration, tax receipts, etc.

If an organization rents premises from an individual (not an individual entrepreneur), then it is in relation to this individual lessor. That is, she must calculate personal income tax from income in the form of rent, withhold tax when paying income to an individual and transfer it to the budget (clause 2, article 226, article 228 of the Tax Code of the Russian Federation). It is impossible to shift the payment of personal income tax to the landlord himself - an individual cannot. And it does not matter what will be written in the lease agreement with an individual. In any case, the tenant - organization must pay personal income tax (Letter of the Ministry of Finance of Russia dated August 27, 2015 No. 03-04-05 / 49369).

VAT on rent

Personal income tax is charged on rent for each payment of income to an individual according to the following formula:

The tax rate is equal to:

• if the landlord is a resident of the Russian Federation - 13%;
• if the landlord is a non-resident of the Russian Federation - 30%.

And to an individual, the rent is transferred minus the amount of tax withheld.

Payment of personal income tax to the budget

The tax withheld by the organization is transferred to the budget no later than the day following the day the rent is paid to the individual (clause 6, article 226 of the Tax Code of the Russian Federation).

BCC for personal income tax when renting - 182 1 01 02010 01 1000 110. That is, the same as when transferring personal income tax for employees of the organization.

Reporting when renting from an individual

A separate tax register for personal income tax must be created for a lessor-individual and at the end of the year in general order submit a 2-personal income tax certificate to the IFTS. It must reflect income in the form of rent, the amount calculated, withheld and transferred to the personal income tax budget.

The income code in 2-NDFL when renting from an individual is 1400.

In addition, information on the individual lessor is included in the quarterly report 6-NDFL.

Insurance premiums when renting premises from an individual

The amount of rent paid to an individual is not subject to insurance contributions to the PFR, FSS and FFOMS (clause 4 of article 420 of the Tax Code of the Russian Federation).

Personal income tax on other rental payments

If an organization reimburses an individual lessor for the cost of utilities, which depends on the actual consumption by the tenant and is taken into account by the meters (electricity, gas, water supply), then the amount to be reimbursed is not taxable income of the individual. And, therefore, it is not necessary to withhold personal income tax from it (

The obligations of the parties to lease property are governed by the terms of the lease agreement concluded in accordance with Chapter 34 "Lease" of the Civil Code of the Russian Federation.

The conditions for the maintenance of the leased property are regulated by Art. 616 of the Civil Code of the Russian Federation. In particular:

1) the lessor is obliged to produce at his own expense overhaul leased property, unless otherwise provided by law, other legal acts or a lease agreement (clause 1, article 616 of the Civil Code of the Russian Federation);

2) the tenant is obliged to maintain the property in good condition, carry out current repairs at his own expense and bear the costs of maintaining the property, unless otherwise provided by law or the lease agreement (clause 2, article 616 of the Civil Code of the Russian Federation).

Based on the above, by default:

The lessor bears the costs of major repairs of the leased property;

Expenses for current repairs and other expenses for the maintenance of the leased property - the tenant.

However, the lease agreement may provide otherwise.

For example, a lease agreement may include the following terms:

The obligation to carry out major repairs of the leased property shall be assigned to the tenant,

The lessor is exempt from bearing the costs of maintaining the leased property.

In this case, all expenses for the maintenance of the leased property (including the cost of major repairs) will be borne by the tenant.

The costs of maintaining the leased property will be borne and, accordingly, reflected in the accounting by the lessee or the lessor in the presence of these obligations.

Accounting for the expenses of the landlord

If the lessor has obligations, the costs of maintaining the leased property (including the costs of major repairs) in accounting are reflected:

As part of expenses for ordinary activities - if the subject of the lessor's activity is the provision of its assets for temporary use under a lease agreement for a fee;

As part of other expenses - if the condition regarding the subject of activity specified in the previous paragraph is not met. These rules are set out in clauses 5 and 11 of the Accounting Regulation "Organization's expenses" PBU 10/99 (Order of the Ministry of Finance of the Russian Federation No. 33n dated 06.05.99) .

According to the Chart of Accounts accounting financial and economic activities of organizations and the Instructions for its application, approved by the Order of the Ministry of Finance of the Russian Federation No. 94n dated October 31, 2000 (hereinafter referred to as the Chart of Accounts):

Expenses for ordinary activities are reflected in the balance accounts of section 3 "Costs of production" (for example, on account 20 "Main production");

Other expenses are reflected on account 91 “Other income and expenses” (sub-account “Other expenses”).

The subject of the lessor's activity can be determined:

As from the types of economic activity specified in the constituent documents,

So proceeding from the economic essence of the ongoing operations.

The level of materiality of received rental income can also be used.

"Input" VAT allocated from the cost of expenses incurred:

It is taken into account in the cost of purchased services in accordance with paragraph 2 of Art. 170 of the Tax Code of the Russian Federation - if the rent is not subject to VAT (for example, if the landlord is on a simplified taxation system);

It is presented for deduction - if the rent is subject to VAT and other conditions are met for the acceptance of VAT for deduction (Articles 171 and 172 of the Tax Code of the Russian Federation).

Lessor's tax accounting

The lessor classifies the expenses incurred in accordance with the terms of the contract for the maintenance of the leased property in tax accounting in accordance with Chapter 25 "Corporate Income Tax" of the Tax Code of the Russian Federation. This classification can be presented in the form of a diagram (see the journal "Accounting News" No. 39 of October 25, 2011). Chapter 25 of the Tax Code of the Russian Federation does not disclose the concept of systematic provision of property for rent.

At the same time, Art. 120 of the Tax Code of the Russian Federation, when bringing to tax liability, there is a concept of systematicity in relation to untimely and incorrect reflection of business transactions on the accounting accounts. There, systematically recognized two or more times during calendar year untimely and incorrect reflection. However, this definition is a specific concept that can only be used by the relevant article, i.e. Art. 120 of the Tax Code of the Russian Federation (clause 3 of article 11 of the Tax Code of the Russian Federation).

In our opinion, from the point of view of the classification of expenses, it is possible to draw a parallel of this concept with the subject of the lessor's activity in leasing property. The procedure for determining the subject of activity is described above.

That is, if the subject of the lessor's activity is the provision of property for use, then the leased property - it can be concluded - is provided for use on a systematic basis. In this case, the corresponding costs, depending on the accounting policy, will be taken into account in direct and (or) indirect costs.

If not, then the reverse will apply. That is, such expenses will be included in non-operating expenses.

You should also pay attention Special attention on the position of the accounting policy regarding the formation of a reserve for repairs in tax accounting:

1) if a reserve for future repair costs is formed (clause 2 of article 324 of the Tax Code of the Russian Federation), then:

When determining the standards for deductions to the reserve, it is necessary to be guided by the provisions of paragraphs 1 - 3 of paragraph 2 of Art. 324 of the Tax Code of the Russian Federation;

Deductions to the reserve during the tax period are written off as expenses (direct or indirect - depending on the accounting policy (clause 1 of article 318 of the Tax Code of the Russian Federation)) in equal shares on the last day of the reporting (tax) period;

Actually incurred expenses for the repair of the leased property within the limits of the formed reserve - are written off at the expense of the reserve;

The excess amount is written off as other expenses (direct or indirect - depending on the accounting policy (clause 1 of article 318 of the Tax Code of the Russian Federation)) associated with production and sales;

2) if the reserve is not created, then the organization acts when classifying repair costs in accordance with the above scheme.

Accounting for tenant expenses

If there are corresponding obligations, the lessee will classify the expenses incurred for the maintenance of the leased property in accounting, depending on the purpose of using the leased property. Maintenance costs will be accounted for by the tenant in accordance with the relevant accounting regulations and the Chart of Accounts.

So, there are 4 most common purposes of using the leased property from the tenant:

one . Creation of a non-current asset (an object of fixed assets, an intangible asset) - expense account 08 “Investments in non-current assets”.

2. Manufacture of products, performance of work or provision of services - expense accounts 20 "Main production" and 25 "General production costs".

3. Organization management - expense account 26 "General expenses"

4. Non-production - expense account 91 “Other income and expenses” (sub-account “Other expenses”). The purpose of using the leased property is determined based on the operations carried out by the tenant with the leased property.

The “input” VAT allocated from the value of the acquired expenses is deductible if the leased property is used in VATable transactions and subject to other conditions specified in Art. 171 and 172 of the Tax Code of the Russian Federation. Otherwise, it is taken into account in the cost of the corresponding expenses.

Tenant's tax accounting

If there are relevant obligations, the lessee classifies in tax accounting the costs of maintaining the leased property, depending on the purpose of its use and accounting policy.

So, in accordance with Chapter 25 of the Tax Code of the Russian Federation, 4 options for tax accounting for such expenses can be distinguished:

1. Purpose of use: Creation of depreciable property (fixed assets, intangible asset).

Accounting Policy Statement: Doesn't matter.

Type of expense for taxation purposes: Expenses for the acquisition of the relevant depreciable property, included in the initial cost (clause 1, article 257 of the Tax Code of the Russian Federation).

2. Purpose of use: Manufacture of products, performance of work or provision of services, management of the organization.

Accounting policy provision: The corresponding type of expense is included in the list of direct expenses.

Type of expense for tax purposes: Direct costs associated with production and sales (clause 1, article 318 of the Tax Code of the Russian Federation).

3. Purpose of use: Manufacture of products, performance of work or provision of services, management of the organization.

Purpose of use: The corresponding type of expense is not included in the list of direct costs.

Type of expense for tax purposes: Indirect costs associated with production and sales (clause 1, article 318 of the Tax Code of the Russian Federation).

4. Purpose of use: The use is not related to activities aimed at generating income.

Purpose of use: Doesn't matter.

Type of expense for taxation purposes: Expenses not taken into account when taxing profits (clause 1, article 252, clause 49, article 270 of the Tax Code of the Russian Federation). In this case, the accounting policy may provide for the formation of a reserve for future repair costs. In this situation:

1) deductions to the reserve debited as expenses will be qualified depending on the purpose of use of the leased property in accordance with the above table;

2) the actual repair costs incurred will be written off:

Within the created reserve - at the expense of the reserve;

In the amount of excess over the formed reserve - in the composition of expenses corresponding to the purpose of use in accordance with the above table.

The costs associated with the production and sale are taken into account in accordance with paragraph 2 of Art. 318 of the Tax Code of the Russian Federation:

Indirect costs - are fully included in the reduction of taxable profit;

Direct costs - reduce taxable income as the sale of products, works, services, in the cost of which they are taken into account.

At the same time, in relation to services, direct costs can be fully deducted from taxable income.

The relationship of the parties to the lease agreement in relation to utilities

The obligations of the parties to maintain the leased property are determined by the lease agreement in accordance with the provisions of Art. 616 of the Civil Code of the Russian Federation. They also include the costs of paying for utilities and other services (for example, communication services) associated with the leased property.

Unless otherwise provided by law or the lease agreement, the tenant shall bear the costs of paying for such services. The lease agreement may provide otherwise.

That is, it turns out, in accordance with the lease agreement, the costs of utilities and (or) other services are borne by:

Either the tenant;

Or the lessor, if the law or the contract imposes such an obligation on him.

As a rule, who is entrusted with such a duty, he must carry out the necessary actions for this:

Conclude an agreement with an organization providing utilities or other services;

Accept the results of such services and pay for them.

If the tenant or the landlord, in accordance with their duties, directly interacts with this organization, then there are no questions regarding accounting and tax accounting. The costs of acquiring such services are taken into account:

At the lessor - in accordance with the procedure described above in the sections of this article that are devoted to accounting and tax accounting expenses for the maintenance of the leased property from the lessor;

For the tenant - in accordance with the procedure described above in the sections of this article, which are devoted to accounting and tax accounting of expenses for the maintenance of the leased property from the tenant.

There are also no tax risks associated with these transactions.

However, there is often a different procedure for the relationship for the implementation of such expenses by the parties to the lease agreement. It is described in the next two sections of this article.

Reimbursement of utility costs incurred by the landlord

In practice, the following situation occurs. The obligation to bear the costs of utilities and other services is assigned to the tenant, but the latter cannot directly interact with the organization providing such services for a number of reasons. For example:

1) a separate room in the building is rented, while:

The contract for the energy supply (or other) of the building is entirely concluded by the lessor;

To conclude a contract for energy supply (or otherwise), obstacles are created for the tenant by the energy supply organization (for example, in the form of mandatory submission of relevant technical data);

2) property is rented at the initial stage, during which the contract for energy supply (or other) is renegotiated - the termination and termination of relations between the energy supply organization and the lessor and the conclusion of an agreement with the tenant.

In such situations, the costs in question are actually borne by the landlord. But at the same time, in addition to the rent, it presents to the tenant the expenses incurred on the basis of copies of supporting documents (appropriate calculation). Such relationships are usually fixed in the contract.

In this case, lessors do not have any tax risks for such relationships:

1) for the purposes of income taxation:

Income from tenants - the lessor includes income taken into account for taxation of income;

Expenses incurred - the lessor includes expenses taken into account for income taxation;

2) for VAT purposes:

Income from tenants - the lessor includes in the tax base for VAT;

. "Input" VAT on purchased services - the lessor claims for deduction.

However, the tenant has tax risks in this situation:

1) to a lesser extent for income tax - there is a risk of accounting for expenses for the purchase of services when taxing profits, since in fact the party to the relationship for the purchase of electricity (water, etc.) is the lessor who does not have a license for the relevant type of activity (electricity supply, water supply, etc.);

2) to a greater extent for VAT - a risk of a similar nature arises (the lessor does not have the right to carry out the corresponding type of activity on the basis of a license) upon presentation of the “input” VAT for deduction from the cost of re-billed services. Often, landlords do not even issue an invoice in accordance with this circumstance.

Although at present there is an opinion expressed by the Presidium of the Supreme Arbitration Court of the Russian Federation in Decree No. 6219 / 08 dated 10.03.09 that:

The costs incurred by the landlord for the payment of utility bills, which were re-billed to the tenant, are a variable part of the rent;

With this in mind, the tenant has the full right to deduct "input" VAT from the "variable" value of the rent.

1) the obligation of the landlord (and not the tenant) to bear the costs of utilities and other services associated with the leased premises;

2) the procedure for determining the rent, consisting of 2 parts:

The permanent part - for the use of the relevant property for the relevant period;

The variable part, defined as the amount of the lessor's expenses for paying utility and other expenses related to the leased property.

In this case, the tenant will neutralize the above tax risks:

1) for the purposes of taxation of profits - when using leased property in production activities - the tenant has the right to take into account rental expenses (including the variable part);

2) for VAT purposes - when used in transactions subject to VAT - the tenant has the right to accept the "input" VAT for deduction.

Intermediary contract for reimbursement of utility costs

There is a practice of concluding intermediary agreements between the tenant and the landlord to reimburse the expenses incurred by the landlords for utilities and other services related to the leased premises.

In this situation, two agreements are concluded between the tenant and the landlord:

1) a lease agreement, under the terms of which the obligation to bear the costs of utilities and other services related to the leased property is assigned to the tenant;

2) an intermediary agreement (for example, an agency agreement), in accordance with which the lessor, on behalf of and at the expense of the tenant, on its own behalf, acts as a buyer from the energy supply organization of utilities and other services related to the leased property.

In accordance with the relationship under an intermediary agreement:

1) lessor:

For accounting purposes, it does not take into account payment for utilities at the expense of the tenant as part of expenses (clause 3 of PBU 10/99 "Expenses of the organization") and receipts from the tenant in payment for these services as part of income (clause 2 of PBU 9/99 " organization's income")

(when purchasing utilities, the entry Dt76 is reflected (in the analytical accounting of settlements with the tenant) - Kt60 (in the analytical accounting of settlements with the energy supply organization) for the amount including VAT)

For the purposes of taxation of profits, it does not take into account either in income (clause 9 of article 251 of the Tax Code of the Russian Federation) or in expenses (clause 9 of article 270 of the Tax Code of the Russian Federation) payment for utilities and reimbursement of their cost;

For VAT purposes, when determining the tax base for VAT, it does not take into account the amount of compensation for utilities (clause 1, article 156 of the Tax Code of the Russian Federation) and does not deduct VAT on paid utilities, since they acquire them in favor of the tenant;

2) tenant:

For accounting purposes - takes into account the expenses reimbursed to the lessor, in the manner described in the section "Accounting for the expenses of the tenant", depending on the purpose of using the leased property;

For profit taxation purposes - takes into account the expenses reimbursed to the lessor in the manner described in the section "Tax accounting of expenses for the lessee", depending on the purpose of using the leased property and accounting policy;

For VAT purposes, “input” VAT on the value of reimbursable expenses is deductible if the utilities are related to VATable transactions.

Remuneration for intermediary services:

1) lessor:

In accounting - includes in the composition of revenue (records Dt76 (in the analytical accounting of settlements with the tenant) - Kt90);

In tax accounting - includes in the composition of income taken into account when taxing profits (excluding VAT);

Calculates VAT payable to the budget (records Dt90 - Kt68 (VAT sub-account));

2) the tenant reflects similarly to reimbursed expenses in accounting and tax accounting, and also accepts VAT from their value to be deducted or takes into account in value.

With such a relationship between the parties, the tenant may experience the following problems, leading to tax risks:

1) as a rule, lessors do not conclude a separate contract for energy supply (or another) with an energy supply organization in pursuance of an intermediary agreement, but act within the framework of a previously concluded agreement;

2) within the framework of an agreement concluded with an energy supplying organization, the landlord sometimes pays not only the expenses reimbursed by the tenant, but also his own (this situation is possible when the landlord leases some premises while occupying other premises on the scale of one building).

These problems can lead to the recognition of mediation contracts as invalid. As a consequence, this leads to tax risks - both for income tax and VAT. The second problem is associated with the fragmentation by the lessor of the invoice issued to him by the energy supply organization:

One part - for presentation for deduction;

The other part is to be presented to the tenant for payment in the form of a separate invoice.

So, the order of relations between the tenant and the landlord in paying for utilities and other services in the situation under consideration also negatively affects the tenant.

The most ideal relationship of the parties is the situation described in the final part of the previous section of this article.

Setting rent

The rent is set in the lease agreement in accordance with paragraph 2 of Art. 614 of the Civil Code of the Russian Federation. This provision does not impose restrictions on the forms of rent, allowing a combination of the forms specified in this paragraph. Those. the parties to the lease agreement may provide for the leased property or its individual constituent parts any amount of rent or the procedure for determining it. For example, as indicated in the section "Reimbursement of utility costs incurred by the lessor" of this article, the amount of the fixed part and the variable part (in the amount of consumed utilities and other services).

In this case, the rent may be paid periodically or at a time. It is allowed to pay rent in non-monetary funds.

The rent can be changed by agreement of the parties in the manner provided for in paragraph 3 of Art. 614 of the Civil Code of the Russian Federation.

Paragraph 4 of Art. 614 of the Civil Code of the Russian Federation gives the tenant the right to reduce the amount of rent if, due to circumstances for which he is not responsible, the following has significantly worsened:

Terms of use of the property;

Property condition.

Accounting for rent from the landlord

The rent is reflected by the lessor in accounting in accordance with paragraphs 5 and 7 of PBU 9/99 “Income of the organization” and the Chart of Accounts:

As part of income (sales proceeds) from ordinary activities - records Dt62 - Kt90 - if the lease for the lessor is the subject of his activity;

As part of other income - records Dt62 - Kt91 - otherwise.

Regarding the procedure for determining the subject of activity, it is described in the section "Accounting for the expenses of the lessor" of this article.

If the rent is subject to VAT, then the records for the calculation of this tax (Dt90 - Kt68) are also reflected in the accounting records.

In tax accounting, income in the form of rent, excluding VAT, is qualified in accordance with paragraph 4 of Art. 250 of the Tax Code of the Russian Federation:

As part of income from sales;

As part of non-operating income - if they are not assigned to the first category.

At the same time, the Tax Code of the Russian Federation does not answer the question on what basis to attribute rental income to the appropriate category.

In our opinion, when classifying rental income, it is necessary to focus on the regularity of leasing property, described above in relation to the qualification of expenses for the maintenance of leased property. The rent is taken into account:

In the presence of systematicity - in income from sales;

In its absence - in non-operating income.

In such a situation, both rental income and expenses for the maintenance of the leased property (including depreciation) will be grouped in the same way:

Or in income from sales and expenses associated with production and sales;

Or in non-operating income and expenses.

The principles for classifying rental income in tax accounting are fixed in the accounting policy.

Tenant accounting for rent

The rent from the lessee is taken into account in expenses depending on the purpose of the use of the leased property and the accounting policy.

The classification and procedure for recording rental expenses is completely similar to the classification of expenses for the maintenance of leased property, described above:

In the section "Accounting for the expenses of the tenant" of this article - in accounting;

In the section "Tax accounting of expenses for the tenant" of this article - in tax accounting.

The procedure for accounting for "input" VAT on the value of the rent coincides with the procedure described in the "Accounting for the Lessee's Expenses" section of this article in relation to the costs of maintaining the leased property.

Organizations that apply simplified taxation determine taxable income on the basis of articles 249 and 250 of the Tax Code of the Russian Federation (clause 1 of article 346.15 of the Tax Code of the Russian Federation). These items divide all income into sales proceeds and non-operating income. The main one that arises when accounting for rental income under the simplified tax system, to which income under a single tax to include the fee received for renting out property - to sales proceeds or non-operating income.

In general, income from the rental of property is non-operating. However, it can also be included in sales revenue. The criterion for classifying rent as revenue is not provided for by the Tax Code of the Russian Federation. However, it contains a condition for including expenses related to the lease of property into sales expenses. So, if an organization leases property on a systematic basis, the costs of such activities are related to the sale (subclause 1, clause 1, article 265 of the Tax Code of the Russian Federation). Accordingly, the income from it must be recognized as part of the sales proceeds.

The concept of systematicity is used in the meaning used in paragraph 3 of Article 120 of the Tax Code of the Russian Federation - two or more times during a calendar year. This approach to the application of the concept of "systematic" was enshrined in paragraph 2 of section 4 methodological recommendations on the application of Chapter 25 of the Tax Code of the Russian Federation (approved by order of the Ministry of Taxation of Russia dated December 20, 2002 No. BG-3-02 / 729). To date, this document has become invalid (order dated April 21, 2005 No. SAE-3-02 / 173). However, the proposed interpretation of the concept of “systematicity” remains relevant, which is confirmed by the tax department (see, for example, the letter of the UMNS of Russia for the Moscow Region dated March 25, 2004 No. 04-23 / 03451) and the courts (see, for example, the decision of the FAS Volga-Vyatka District dated October 26, 2005 No. A28-4710 / 2005-34 / 29).

Thus, if the property is rented out on a systematic basis, then income accounting
from rent under the simplified tax system, enter in the same order as sales proceeds. Otherwise, report the lease payments as non-operating income. Similar rules can be applied in accounting. Only rental income under the simplified tax system must be divided into income from ordinary activities (reflected on account 90) and other income (reflected on account 91).

The date of receipt of income is the day when the organization actually received funds from the tenant in payment of his debt. Include the amount of rent received in the form of an advance in income on the simplified tax system immediately at the time it is received by the organization. On this date, you need to make an appropriate entry in the income part of the income and expense ledger. This procedure follows from paragraph 1 of Article 346.17 of the Tax Code of the Russian Federation and letters of the Ministry of Taxation of Russia dated June 11, 2003 No. SA-6-22 / 657, dated January 25, 2006 No. 03-11-04 / 2/15 and the decision of the Supreme Arbitration Court of the Russian Federation dated January 20, 2006 No. 4294/05.

Similar rules may apply in accounting. But only on condition that the organization belongs to small businesses and keeps accounting on a cash basis. If it uses the accrual method, then rental income under the simplified tax system is recorded on the date when the organization became entitled to receive it (as a rule, this is the last day of each month). Whether such income is received from the tenant or not does not matter.

Example
The organization applies the simplified tax system, pays tax on the difference between income and expenses. Accounting is kept on an accrual basis. The organization has rented a non-residential premises.

Since January, the company has been charging a monthly rent of 90,000 rubles. Payment from the tenant is received monthly (in the month following the period in which the rental services were provided).

Situation 1

One of the activities of the company is the leasing of fixed assets. Accounting for rental income under the simplified tax system is carried out using the following entries:

− in January:

DEBIT 62 CREDIT 90-1

− in February:

DEBIT 51 CREDIT 62
- 90,000 rubles. - the rent for January was received on the current account;

DEBIT 62 CREDIT 90-1
- 90,000 rubles. - the rent for February was calculated and the tenant's debt was reflected;

− in March:

DEBIT 51 CREDIT 62
- 90,000 rubles. - received the rent for February on the current account;

DEBIT 62 CREDIT 90-1
- 90,000 rubles. - the rent for March was calculated and the tenant's debt was reflected.

According to the results of the first quarter, in accounting under the simplified tax system, as part of the proceeds from sales (income from ordinary activities), the amount of rent in the amount of 270,000 rubles will be reflected. (90,000 rubles × 3 months). Only the actually received rent in the amount of 180,000 rubles is transferred to the book of income and expenses. (90,000 rubles × 2 months).

Situation 2

Leasing of fixed assets is not an activity of the organization. The property was leased to the tenant for one month. Then accounting for rental income under the simplified tax system is carried out using the following entries:

− in January:

DEBIT 62 CREDIT 91-1
- 90,000 rubles. - accrued rent for January and reflects the debt of the tenant;

− in February:

DEBIT 51 CREDIT 62
- 90,000 rubles. - Received the rent for January on the current account.

According to the results of the first quarter, in accounting under the simplified tax system, as part of other income, the amount of rent in the amount of 90,000 rubles will be reflected. Non-operating income is also reflected in the book of income and expenses in the amount of 90,000 rubles.