Determining the balance holder of leased items as a one-time action
When concluding a leasing agreement, the parties to the transaction always face the question of choosing the balance holder of the leased asset. At the same time, the current legislation allows the parties to choose which of them will take into account the leased property - leasing company or lessee. In this article, we will consider the procedure for determining the balance holder of the leased asset.
The legal relations of the parties under financial lease (leasing) agreements are enshrined in Article 665 of the Civil Code Russian Federation(hereinafter - the Civil Code of the Russian Federation), as well as in the Federal Law of October 29, 1998 No. 164-FZ "On Financial Lease (Leasing)" (hereinafter Law No. 164-FZ).
According to Article 2 of the said Law, a leasing agreement is an agreement in accordance with which the lessor (hereinafter referred to as the lessor) undertakes to acquire ownership of the property indicated by the lessee (hereinafter referred to as the lessee) from a seller determined by him and provide the lessee with this property for a fee for temporary possession and use. The leasing agreement may provide that the choice of the seller and the acquired property is carried out by the lessor.
The subject of leasing can be any non-consumable things, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property.
Cannot be leased land and other natural objects, as well as property that is prohibited by federal laws for free circulation or for which a special circulation procedure has been established, with the exception of military products, the leasing of which is carried out in accordance with international treaties of the Russian Federation, Federal Law No. 114 of July 19, 1998 -FZ "On military-technical cooperation of the Russian Federation with foreign countries» in the manner established by the President of the Russian Federation, and technological equipment of foreign production, the leasing of which is carried out in the manner established by the President of the Russian Federation (Article 3 of Law No. 164-FZ).
A lessor is a natural or entity which, at the expense of borrowed and (or) own funds, acquires property in the course of the implementation of a leasing agreement into ownership and provides it as a subject of leasing to the lessee for a certain fee, for a certain period and under certain conditions for temporary possession and use with or without transfer to the lessee of ownership of the subject of leasing (Article 4 of Law No. 164-FZ).
The lessee is an individual or legal entity who, in accordance with the leasing agreement, is obliged to accept the leased asset for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement (Article 4 of Law No. 164-FZ).
The subject of leasing transferred for temporary possession and use to the lessee is the property of the lessor.
Note that the choice of the balance holder of the leased asset is one of the essential conditions agreement that defines the accounting and taxation of leased property.
The subject of leasing transferred to the lessee under a leasing agreement is recorded on the balance sheet of the lessor or lessee by mutual agreement (paragraph 1 of Article 31 of Law No. 164-FZ). Accordingly, the depreciation deductions are made by the party that is the balance-holder of the property (paragraph 2 of Article 31 of Law No. 164-FZ).
The readers' attention should be drawn to the fact that it is impossible to transfer leased items from the lessee's balance sheet to the lessor's balance sheet and from the lessor's balance sheet to the lessee's balance sheet after the leased asset is reflected on one of the balance sheets, even if appropriate changes are made to the contract.
Article 31 of Law No. 164-FZ grants the parties only a one-time right to record the leased asset on the balance sheet of one of the parties, which is not subject to repeated use. In addition, after the object of leasing is accepted in accounting as a fixed asset (profitable investment), its transfer from balance to balance is not allowed, except in cases expressly provided for regulations Russian Federation.
As a rule, the subject of leasing is recorded on the balance sheet of the lessor, since with this accounting option, both parties to the leasing transaction relieve themselves of a number of risks and minimize the costs of the transaction. In addition, accounting on the lessor's balance sheet is more beneficial for the lessee, since the accounting of property received on lease is simplified, and there are no tax liabilities to the budget for property tax.
Under the lease agreement, the lessee undertakes to return the leased asset at the end of the lease agreement, unless otherwise provided by the specified lease agreement, or to acquire the leased asset into ownership on the basis of a sale and purchase agreement (paragraph 5 of Article 15 of Law No. 164-FZ).
If the lease agreement provides for the transfer of ownership of the leased asset to the lessee, then the total amount of the lease agreement may include the redemption price of the leased asset (paragraph 1 of Article 28 of Law No. 164-FZ).
As mentioned above, the accounting and tax accounting of operations by the lessor and the lessee depends on who has the leased property recorded on the balance sheet.
This circumstance is decisive for determining the general accounting scheme that should be used under a particular lease agreement. Despite the possibility of reflecting the leased property on the balance sheet of the lessee, during the entire term of the lease agreement it remains in the ownership of the lessor (Article 11 of Law N 164-FZ).
Accounting.
Currently, the accounting treatment leasing operations is carried out in accordance with the Instructions on the reflection in accounting of operations under a leasing agreement, approved by Order of the Ministry of Finance of the Russian Federation dated February 17, 1997 No. 15 (hereinafter - Instructions No. 15). However, these Guidelines should be applied very carefully, because almost all the documents on the basis of which they were developed have now been canceled. Therefore, when applying Directives No. 15, one should take into account changes in the accounting regulation that have occurred since the adoption of this document.
Accounting for leased items on the balance sheet of the lessee is possible only in accordance with the agreement.
If the subject of leasing is accounted for on the balance sheet of the lessee, then it is accepted by the lessee for balance sheet accounting as part of fixed assets at the initial cost, which is equal to total amount debt to the lessor under a leasing agreement (excluding VAT) (clauses 4, 7, 8 Order of the Ministry of Finance of the Russian Federation dated March 30, 2001 No. 26n “On Approval of the Regulation on Accounting “Accounting for Fixed Assets” RAS 6/01” (hereinafter referred to as PBU 6/01), paragraph 2 of clause 8 of Directive No. 15).
Depreciation on the subject of leasing is charged by the lessee in accordance with the generally established procedure (clause 17 of PBU 6/01, paragraph 3 of clause 50 of the Order of the Ministry of Finance of the Russian Federation dated October 13, 2003 No. Guidelines No. 91n).
When accounting for the subject of leasing on the balance sheet of the lessee, the following entries are made in its accounting:
Debit 08 Credit 76 / sub-account "Lease obligations" - the object of leasing received from the lessor was registered;
Debit 19 Credit 76 / sub-account "Lease obligations" - reflects VAT payable to the lessor;
Debit 01 Credit 08 - the received leased asset is reflected in fixed assets;
Debit 20 Credit 02 - Depreciation is accrued (monthly from the month following the month of acceptance of the leased asset as part of fixed assets).
If the subject of leasing is accounted for on the balance sheet of the lessor, then it is accepted for accounting as part of fixed assets on account 03 “Profitable investments in material values"(paragraph 3 of clause 5 of PBU 6/01, clause 3 of Instructions No. 15, Instructions for the use of the Chart of Accounts).
If the subject of leasing is listed on the balance sheet of the lessor, then the transfer of property to the lessee is reflected only in the entries in the analytical accounting on account 03 “Profitable investments in material assets” (paragraph 3 of clause 3 of Instructions No. 15).
Depreciation on leased property is charged by the lessor in accordance with the generally established procedure.
When accounting for the subject of leasing on the balance sheet of the lessor, the following entries will be made in its accounting:
Acquisition of the object of leasing:
Debit 08-4 Credit 60 - The costs (excluding VAT) associated with the acquisition of the leased asset are reflected;
Debit 19-1 Credit 60 - Reflected VAT presented by the seller;
Debit 68 Credit 19-1 - accepted for deduction of input VAT (if the organization has the right to deduct);
Debit 03 / sub-account “Property intended for leasing” Credit 08-4 - The object of leasing is accepted for accounting as a profitable investment in material assets;
Debit 60 Credit 51 - the subject of leasing has been paid;
Transfer of the subject of leasing, recorded on the balance sheet of the lessor, to the lessee:
Debit 03 / sub-account “Property leased” Credit 03 / sub-account “Property intended for lease” - The transfer of the leased asset to the lessee is reflected;
Debit 20 Credit 02 - Depreciation has been accrued (from the month following the month of transfer of the leased asset to the lessee).
It should be noted that if the lessor uses the cash method of accounting for income and expenses in tax accounting and if the purchased leased asset is not paid in full to the seller, then a deductible temporary difference and a corresponding deferred tax asset arise in the lessor's accounting records. In this case, the lessor must make an entry in the debit of account 09 “Deferred tax assets”in correspondence with account 68 “Calculations for taxes and fees” (paragraphs 11, 14 of the Order of the Ministry of Finance of the Russian Federation dated November 19, 2002 No. 114n “On approval of the Regulation on accounting “Accounting for settlements on income tax of organizations” RAS 18/02” ).
income tax.
Tax accounting of transactions under a leasing agreement is carried out in accordance with the rules of Chapter 25 of the Tax Code of the Russian Federation. When calculating income tax, taxpayers need to determine income and expenses: the lessor has both, the lessee has only expenses in this transaction. The composition of these expenses is determined by the terms of the concluded agreement and depends on who owns the property - from the lessor or the lessee.
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Our cities are large, it is difficult to keep track of everything and everything by one administration, which is why the city is divided into territories. Each territory is assigned to a separate balance holder. Balance holder - an owner or a legal entity that, under an agreement with the owner, maintains the relevant property on the balance sheet, as well as maintains accounting, statistical and other reporting provided for by law, calculates the funds necessary for the timely implementation of capital and current repairs and maintenance, and also ensures the management of this property and is responsible for its operation in accordance with the law.
In other words, the owner is the city, and a certain state unitary enterprise or municipal unitary enterprise manages and maintains the property.
And now let's move on to the problem. I don't think it's worth dwelling too much on how these businesses manage property: most of the time it's very bad (broken sidewalks, mud instead of lawn, etc. are the most common problems).
Another problem is that sometimes city property is divided in a very strange way. For example, in Moscow I know that sometimes two neighboring houses and their adjoining territory divided between the state unitary enterprises of the prefecture and the department of housing and communal services, that is, such houses can even have one yard, in fact, but according to the norms, they require at least separate janitors, and at most, completely separate documentation.
Often, precisely because of such situations, seemingly common yards are separated by a fence:
sorry for the quality
In general, in terms of efficiency, everything is bad. How can this be changed?
As they say, everything ingenious is simple. You just need to choose balance holders through competitions among private firms. Why? And because, unlike state employees, who are shackled by bureaucracy, all sorts of restrictions and a banal desire not to work (because they won’t get anything for it), private traders will have more freedom in their actions and fear of losing a contract.
That is, from the pros, from private traders:
Well, in confirmation of my words, in the countries of the first world, as a rule, such a system of urban property management operates. The most striking example (and the first one that comes to mind) is the managing transport companies, in whose hands are the rolling stock, ticket menu, services, routes, and so on, while the city monitors compliance with safety requirements, schedules and other contract conditions. 
In Singapore, bus routes are operated by 2 transport companies
I hope that someday in Russia they will begin to massively introduce such control systems.
The term "balance holder" is usually used in relation to a person (usually a legal entity), which, not being the owner, takes into account on its balance sheet property. That is, such property is reflected in the balance sheet in the Assets section in the amount determined by the accounting rules.
Sometimes a balance holder is understood to mean any person who takes into account property on its balance sheet (including its owner).
The term "balance holder" is not defined in the legislation.
Cases when the owner of property is one person, and it is taken into account on the balance sheet of another, are determined by law.
If the leasing agreement specifies that the subject of leasing is accounted for on the lessee's balance sheet, the Owner of the property (the subject of leasing) will be the Lessor, and the Balance Holder will be the Lessee.
Thus, until the end of 2014 Article 31 federal law No. 164-FZ of October 29, 1998 "On Financial Lease (Leasing)" determined that the subject of a lease transferred to a lessee under a lease agreement is accounted for on the balance sheet of the lessor or lessee by mutual agreement. On November 16, 2014, Article 31 became invalid (Federal Law of November 4, 2014 N 344-FZ), but in practice, it is not uncommon that the subject of leasing is accounted for under the contract on the balance sheet of the lessee.
If, under the agreement, the property is recorded on the balance sheet of the lessor, then the Lessor will be both the owner and the balance holder of the leased asset.
Property under the right of operational management or economic management
Another case is organizations that own property on or on.
A state or municipal unitary enterprise owns property on the right of economic management (Articles 294, 295 of the Civil Code of the Russian Federation), but at the same time the state remains the owner of the property or municipality. In this case, such enterprises act as a balance holder.
Institutions and state-owned enterprises own property for, while the owner of such property is another person (owner) (Article 296 of the Civil Code of the Russian Federation).
Example
federal state-financed organization owns the building on the right of operational management.
The budgetary institution is the balance holder.
The Russian Federation (state) is the owner.
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Durable means of labor (over 12 months). Fixed assets include buildings, machinery and equipment, structures and transmission devices, vehicles.
The property right that an institution or state-owned enterprise has on the property assigned to them. An institution or state-owned enterprise owns and uses this property within the limits established by law, in accordance with the objectives of its activities, the purpose of this property. An institution or state-owned enterprise disposes of this property with the consent of the owner of this property.
Thus, the law of the constituent entity of the Russian Federation, which establishes the specifics of determining the tax base based on the cost of objects real estate, can be accepted only after the subject approves the results of the determination cadastral value property. Based on them the tax base is defined as the cadastral value of property in relation to certain types of property, which include administrative, business and shopping centers(complexes) and premises in them; non-residential premises, the appointment of which in accordance with cadastral passports or documents of technical accounting (inventory) provides for the placement of offices, retail facilities, facilities Catering and consumer services, or which are actually used to accommodate offices, retail facilities, catering and consumer services.
In accordance with paragraph 7 of Article 378.2 of the Tax Code of the Russian Federation, the body of the constituent entities of the Russian Federation no later than the 1st day of the next tax period on property tax determines the list of relevant real estate objects, sends it to tax authorities at the location of immovable objects and places it on its own or on the official website of the subject of the Russian Federation.
Thus, if a regional law is adopted in a constituent entity of the Russian Federation that establishes the specifics of determining the tax base based on the cadastral value of real estate objects, then such objects are subject to taxation at the cadastral value. But subject to their inclusion in the List of real estate objects posted on the official website no later than January 1, 2014.
Real estate objects not included in the List are subject to taxation according to the old rules - based on average annual cost property (clause 1, article 375 of the Tax Code of the Russian Federation).
Summarizing all the above, the financiers inform the taxpayer of their summary: if the building owned by the company is not included in the approved List of real estate objects, then this property is subject to taxation in 2014 based on the tax base, defined as its cadastral value. But if the building is not included in this List, then the tax base for this object is determined in accordance with paragraph 1 of Article 375 of the Tax Code of the Russian Federation.
It would seem that the Ministry of Finance of Russia spoke very clearly: a special procedure for property with a cadastral value of real estate objects included in a special list by the subjects of the federation applies exclusively to the owners of such property. This conclusion officials is based on the following norms of legislation.
Thus, subparagraph 3 of paragraph 12 of article 378.2 of the Tax Code of the Russian Federation states: "an object of immovable property is subject to taxation by the owner of such property, unless otherwise provided by this chapter." And the next, paragraph 13 of the same article, as a taxpayer, again names organizations that own real estate objects, the tax base for which is determined as the cadastral value.
However, the next legislative changes once again forced the taxpayer to return to the consideration of this issue. This time, the financiers were asked about the application in 2014 of Article 2 of Law No. 307-FZ in connection with the entry into force on January 1, 2015 of paragraph 7 of Article 2 of Federal Law No. 52-FZ of April 2, 2014 (hereinafter - Law No. 52 -FZ). What confused the taxpayer?
The fact is, paragraph 7 of Article 2 of Law No. 52-FZ amended paragraph 1 of Article 374 of the Tax Code of the Russian Federation. Previously, this paragraph sounded as follows: “objects of taxation for Russian organizations movable and immovable property is recognized (including property transferred for temporary possession, use, disposal, trust management, contributed to joint activities or received by agreement), accounted for on the balance sheet as fixed assets in the manner for accounting purposes, unless otherwise provided by Articles 378 and 378.1 of the Code.”
That is, we are talking about the fact that, in the general case, the payers of property tax are the balance holders of real estate.
However, now Article 378.2 of the Tax Code of the Russian Federation has been added to the list of exceptions.
These changes come into force no earlier than one month after the official publication of the law and no earlier than the 1st day of the next tax period for the relevant tax, that is, from January 1, 2015, since for the tax the period is a year.
And so the taxpayer had a question: does this mean that in 2014 the balance holders of real estate objects specified in subparagraphs 1 and 2 of paragraph 1 of Article 378.2 of the Tax Code of the Russian Federation, and included in a special List, must also pay property tax from them with a cadastral cost?
From a formal point of view, the formulation of such a question is quite legitimate. However, the financiers were quick to reassure the concerned taxpayer. That's what they said.
Indeed, by general rule, on the basis of paragraph 1 of Article 373 and paragraph 1 of Article 374 of the Tax Code of the Russian Federation, balance holders of property are recognized as payers of property tax. Meanwhile, by virtue of the provisions of subparagraph 3 of paragraph 12 and paragraph 13 of Article 378.2 of the Tax Code of the Russian Federation, the specifics of taxation of individual real estate objects (based on the cadastral value) are applied to organizations that own real estate objects.
Consequently, the Ministry of Finance of Russia once again draws its conclusion that the provisions of Article 378.2 of the Tax Code of the Russian Federation do not apply to organizations of balance-holders that are not owners. And therefore, the financiers propose to consider the amendments to paragraph 1 of Article 374 of the Tax Code of the Russian Federation as clarifying.
Thus, now all the balance holders of real estate, for which the payment of property tax is expected from its cadastral, and not from book value, can be completely calm: they are not taxpayers in relation to this property since January 1, 2014. Whom might it concern?
These can be, for example, lessees of real estate, if, according to the terms of the leasing agreement, such objects are taken into account on their balance sheet. In such a situation, the lessor will be the payer of property tax from the cadastral value, despite the fact that this property is not included in its fixed assets (that is, on the balance sheet).
Similarly, state unitary enterprises should not be recognized as payers of property tax if they received them for economic management, as well as any other balance holders of such real estate who are not its owners, but only use the object on the basis of the right of operational management, temporary possession, etc.
Sergei Ryumin,
Manager of KAF INVESTAUDITTRAST LLC
