Regarding your question, please refer to the Letter from the Department of Real Estate:
Letter No. D23i-1663 dated April 16, 2015
issues of removal from the state cadastral registration buildings on
based on the decision of the owner to destroy the property (demolition,
dismantling), preparation of an inspection report confirming the termination
the existence of the property
Document type:
Letter
Document date:
May 29, 2015
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The Department of Real Estate of the Ministry of Economic Development of Russia considered, within its competence, the appeal informs.
In accordance with the Regulations on the Ministry economic development
Russian Federation, approved by the Government Decree
Russian Federation dated June 5, 2008 No. 437, Ministry of Economic Development of Russia
not empowered to clarify the legislation of the Russian
Federation, as well as the practice of its application.
At the same time, we consider it possible to note the following on the issues raised in the appeal.
Demolition and dismantling of buildings by urban planning legislation are considered as a type of construction activities.
At the same time, the procedure for the demolition and dismantling of capital facilities
construction is regulated by the legislation of the subjects of the Russian
Federation. In this regard, it should be noted that by the decision of the Gosstroy
Russia dated November 5, 1997 No. 18-65 approved the Approximate regulation on
body of architecture and urban planning of the executive branch of the subject
Russian Federation, according to which the body of architecture and
urban planning of the executive power of the subject of the Russian Federation
prepares initial and permit documentation for demolition
(dismantling) of buildings, structures and green spaces (point 3).
Article 235 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation)
the grounds for termination of the right of ownership are determined, the subjects
which individuals and organizations can act, regardless of
forms of ownership (legal entities), as well as the Russian Federation,
subjects of the Russian Federation and municipalities, represented by them
authorized bodies.
In view of the foregoing, as well as the provisions of Article 209 of the Civil Code of the Russian Federation, the right
ownership can be terminated based on the decision of the owner
(owners, in case common property) on the destruction of property,
which, in relation to capital construction projects, is demolition,
dismantling such an object.
It should be noted that under the death or destruction in accordance with
Civil law refers to irreversible physical
the cessation of the existence of a thing in its original form, which makes
impossible to satisfy the initial needs of the owner. Wherein
the termination of the existence of a thing upon its death or destruction must be
really irreversible.
For example, if as a result of a fire, landslide, flood or other
natural disaster buildings were partially destroyed, in this case
there will be a change in the properties of the property, and not its destruction
or death. The further fate of the property will depend on
the owner of the affected property, who can decide on
object restoration real estate, its demolition, and termination
ownership rights to it.
Please note that the demolition capital construction
associated with the dismantling of building structures, their
export and subsequent disposal, carrying out earthworks,
improvement land plot In addition, work on
dismantling must comply with the safety requirements for carrying out
such work in relation to life and health individuals, property
third parties located near the object being dismantled, which may
be damaged in the course of such work, environmental
security.
In this regard, the demolition of the object is carried out, as a rule, with the involvement of
specialized organizations with the conclusion of relevant agreements
(contracts with engineering services on disconnecting demolished buildings from
engineering networks, contracts for demolition, relocation, processing and
disposal of demolition waste) and the signing of acts of work performed on
agreements that confirm their performance.
In addition, the Regulations on the composition of sections of project documentation and
requirements for their content, approved by the Government
of the Russian Federation dated February 16, 2008 No. 87 (hereinafter referred to as the Regulation) demolition
(dismantling) of an object or part of a capital construction object
considered as a separate stage of construction (paragraphs 1, 8,
10 of the Regulations), in respect of which the “Project of the organization
demolition or dismantling of capital construction projects,
the composition and requirements for which are provided for in paragraph 24 of the Regulations.
Comprehensive analysis of the legislation of the constituent entities of the Russian Federation
allows us to conclude that the basis for the demolition (dismantling)
capital construction object is the order of the local authority
self-government on the demolition of such an object, which, including
the procedure and terms for the demolition of such an object are determined.
The list of documents required for approval by the local authority
self-government decisions on the demolition (dismantling) of a capital facility
construction is determined in accordance with the legislation of the subject
Russian Federation, in particular, such documents include: decision
the owner on the demolition (dismantling) of the capital construction object,
a project for the organization of work on the demolition or dismantling of such an object, a copy
contracts for the implementation of demolition (dismantling) works, as well as
waste disposal.
In view of the foregoing, the implementation of unauthorized demolition of capital construction facilities is not allowed.
According to Part 1 of Article 42 of the Federal Law of July 24, 2007 No.
221-FZ "On the State Cadastre of Real Estate" (hereinafter - the Law on
cadastre) survey act is a document in which
cadastral engineer as a result of an inspection of the location of the building,
structures, premises or construction in progress, taking into account
available cadastral information about such a property confirms
cessation of the existence of a building, structure or object in progress
construction in connection with the death or destruction of such an object
real estate or the termination of the existence of the premises due to the death
or destruction of the building or structure in which it was located,
loss or destruction of a part of a building or structure within which
such a place was located.
It should be noted that the actual demolition (dismantling) of the object
real estate is preceded by cadastral work in order to
confirmation of the termination of the existence of such immovable property.
In accordance with paragraph 3 of the Requirements for the preparation of an inspection report,
approved by the order of the Ministry of Economic Development of Russia dated December 13, 2010 No.
627 (hereinafter referred to as the Requirements), the inspection report is prepared on the basis of
information obtained as a result of inspection of the location of the object
real estate, taking into account the information of the state real estate cadastre, and
as well as other documents confirming the termination of the existence of the object
real estate. These documents are included in the appendix to the act
examinations.
According to paragraph 9 of the Requirements in the line "List of documents,
used in the preparation of the Survey Report” information is entered on
the name and details of the documents included in the annex to
examination act. The specified list of documents is open,
however, such documents should include information allowing
identify the property.
Thus, the cadastral engineer, when preparing the survey report
uses documents confirming the termination of the existence of the object
real estate, which include, for example, a copy of the order
local authority for the demolition of the building, a copy of the closed order for
demolition work, copies of acts of acceptance of work performed on
demolition, relocation, processing and disposal contracts
demolition waste, etc.
In accordance with part 6 of article 20 of the Cadastre Law, with applications for
removal from the state cadastral registration of buildings has the right to apply
owners of such real estate, as well as owners of land
plots on which such properties were located.
According to part 2 of article 16 of the Cadastre Law, the removal from
state cadastral registration of the property is carried out,
unless otherwise provided by the Cadastre Law, on the basis of an application for
removal from the state cadastral registration of the property and
necessary in accordance with the Law on Cadastre for the implementation of such
document accounting. In accordance with paragraphs 4, 6 of part 1 of Article 22
of the Cadastre Law necessary for removal from the state cadastre
accounting by a document confirming the termination of the existence of the object
real estate is an act of inspection with a copy of the document attached,
establishing or certifying the right of the applicant to the relevant
real estate object (in the absence of information about the registered right
applicant for such a property in the state cadastre
real estate).
At the same time, the legislation of the Russian Federation does not establish a procedure
removal from the state cadastral registration of objects that do not meet
requirements established by Article 130 of the Civil Code of the Russian
Federations, i.e. not being real estate, but included in
as such.
It should also be noted that Article 8.18 of the Law of the City of Moscow dated
November 21, 2007 No. 45 "Code of the city of Moscow on administrative
offenses" for the unauthorized demolition of buildings,
located on the territory of the city of Moscow, provided
administrative responsibility.
In the event of the demolition of a property, ownership of it is terminated upon the destruction of the property, that is, the loss of physical properties. On this basis, the calculation of corporate property tax should be terminated. Such a conclusion is contained in . In the present case, according to tax office, the tax on the property of organizations should be calculated until the date of deletion of information about the administrative building from the state register, despite its liquidation five months before the deletion of information from the register.
The Supreme Court of the Russian Federation indicated that the payment property tax from the value of real estate is one of the components of the burden of maintaining property, which lies on the owner. At the same time, the mere presence in the state cadastral registration of information about the property and its ownership by the taxpayer cannot be the basis for levying tax in the absence of taxable property.
Is it necessary to reflect in the declaration on the property tax of organizations objects that are not recognized as an object of taxation by this tax? Learn from the material "Declaration on the property tax of organizations and calculations for advance payments" in "Encyclopedias of decisions. Taxes and contributions" Internet version of the GARANT system. Get 3 days free!
The court noted that tax law connects the obligation to calculate and pay corporate property tax with the presence of actually existing real estate objects that can bring economic benefits to the owner, in connection with which they are recognized as part of the taxpayer's assets - fixed assets. The Supreme Court of the Russian Federation also pointed out the need to take into account the fact that the right to a thing cannot exist separately from the thing itself. According to the right of ownership of the object is terminated, including in the event of loss or destruction of property.
Recall that earlier the Ministry of Finance of Russia expressed a similar position regarding.
L.A. Elina, economist-accountant
S.A. Vereshchagin, independent expert on accounting and taxation methodology
Liquidation of real estate is a complex and costly operation. As a rule, real estate is liquidated if it began to interfere with the organization. For example, it has become unprofitable: the cost of maintaining it significantly exceeds the amount of income received from its use. Or it happens that on the site of an old object it is supposed to build something newer (more powerful, economical, modern), the operation or sale of which should bring more income. with tax and accounting liquidation of real estate accounted for as fixed assets, we will deal with it. But let's make a reservation right away: this article does not deal with issues related to the forced demolition of real estate (as, for example, in cases of the demolition of unauthorized buildings).
So, outdated real estate takes up space in vain and does not bring proper income. Its demolition causes difficulties not so much from an accounting and accounting point of view, but from an organizational and coordination point of view. After all, the demolition of buildings is not the removal of a closet in an office.
First of all, the organization must record on paper its decision to liquidate real estate.
According to the rules established for the liquidation of fixed assets, it is necessary to create a liquidation commission Yu. To do this, the head must sign the order on her appointment. The composition of the liquidation commission should include the chief accountant (accountant) and persons who are responsible for the safety of fixed assets.
It is also advisable to include representatives of the technical (or engineering) service in the commission.
The purpose of the commission's work is to assess whether the building should be demolished or not. t p. 77 Guidelines for accounting of fixed assets, approved. Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n (hereinafter referred to as the Guidelines). This decision itself, as well as its rationale, the commission must reflect in the act for the write-off of the fixed asset object in the form No. OS-4.
It often happens that the manager (he is also the sole owner) independently decides on the demolition of the building. In this case, it makes no sense to create a commission. But it is still better for you to do an act to write off an object of fixed assets. Because the the form No. OS-4- unified. And in order not to argue with the inspectors on the question of why you filled out the unified form incorrectly (and even more so, you didn’t fill it out at all), it’s better to draw up an OS-4 act according to the instructions - “as it should”.
By the way, looking ahead, let's say that the OS-4 act is also important for justifying the costs associated with the demolition of the building in tax accounting. After all, he (still current rules) is binding document, confirming the very fact of the demolition of the building.
Chief Specialist-Expert of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia
“Under current legislation, primary accounting documents are taken into account if they are compiled in the form contained in the albums of unified forms of primary accounting documentation, and documents, the form of which is not provided for in these albums, must contain required details provided by the Law "On Accounting" paragraph 2 of Art. 9 of the Federal Law of November 21, 1996 No. 129-FZ "On Accounting".
For cases of liquidation of an OS object, the albums of unified forms contain a form of the primary accounting document - form No. OS-4 “Act on the write-off of an asset (except vehicles)” approved Decree of the State Statistics Committee of Russia dated January 21, 2003 No. 7. Therefore, when decommissioning a fixed asset (building), it is necessary to draw up an act in the form of No. OS-4, which must be signed by members of the liquidation commission.
In my opinion, a document independently compiled by the organization (completely replacing the act in the form No. OS-4) should not be accepted for accounting as a primary document.
So, you will need act OS-4. But be prepared for difficulties with filling it out, since the form of this act does not take into account all the nuances of the liquidation of real estate: it is designed to write off various fixed assets.
If the decision on liquidation is made by the commission, and the head approves it, then in order to fill out this act reliably, you will have to enter additional details into it. Since it must reflect, in addition to the decision about liquidation, and also its results. After all, it is simply impossible to liquidate real estate in 5 minutes. In this case, at least different lines will be needed for the dates of signing the first two sections of the act (drawn up before liquidation) and its third section. The third section is called "Information on the costs associated with the write-off of an object of fixed assets from accounting, and on the receipt material assets from their write-off", and it should be compiled by the accounting department based on the results of the liquidation.
But you can also go the other way. For example, you can draw up a separate order from the head approving the decision to demolish the building. And the act of OS-4 will be compiled by the accounting department solely to reflect the results of the demolition in the accounting. But even in this case, the requirement for the signing of this act by the liquidation commission and approval by its head is not canceled.
The search for answers to questions on how to correctly fill out the OS-4 act during the demolition of real estate is complicated by the fact that neither the Ministry of Finance, nor Rosstat, nor any other department can currently develop and approve forms of primary accounting documents. They also do not have the authority to give clarifications on their application. Yu Letter of the Ministry of Finance of Russia dated October 14, 2010 No. 03-04-05 / 8-622. Meanwhile, the rigid binding of the Accounting Law to these unified forms remains.
In order to clarify the difficult situation that has developed with the registration of the liquidation of real estate in accounting (in particular, with filling out the OS-4 act), we turned to the Ministry of Finance.
Head of the Accounting and Reporting Methodology Department of the Department of State Regulation financial control, audit activity, accounting and reporting of the Ministry of Finance of Russia
“Unified forms of primary documents are already an obsolete phenomenon. State function according to the approval of such forms and the establishment of requirements for their completion, it was recognized as redundant. There is no state body within whose competence it would be included. The bill on accounting, which is currently being considered in the Duma, does not provide for any standard forms of documents, it only contains requirements for details.
So the question of what additional documents (in addition to the OS-4 act) should be drawn up upon liquidation of real estate remains at the discretion of the organization. Of course, each independently developed document must contain the necessary details and it must really confirm the fait accompli of economic life.
So, no matter which version of the paperwork (including the OS-4 act) you choose, the main thing is that it is clear from them what happened and when. Since these dates may be needed, among other things, to reflect transactions in accounting (which we will discuss in more detail later).
To obtain a permit to work on the liquidation of real estate, organizations, as a rule, have to apply to the local administration with a whole package of documents.
So, for example, in Moscow, the owner of a building (if it is not an object cultural heritage and is not located on historically developed and historically especially valuable territories) can demolish it on the basis of and clause 2.1.4 of the Rules for the preparation and production of earthworks, arrangement and maintenance of construction sites in the city of Moscow, approved. Decree of the Government of Moscow dated 07.12.2004 No. 857-PP:
Approval of permits for the demolition of valuable buildings located in the historic part of the city is more complex.
In addition, during the demolition of the building, it is necessary to coordinate with Moscow officials the process of disposal and processing of construction waste. a pp. 2.3.12, 2.3.13 of the Rules ... approved. Decree of the Government of Moscow dated 07.12.2004 No. 857-PP.
Also, before starting work at the Technical Inspectorate of the Association of Administrative and Technical Inspections of Moscow, it is necessary to obtain a warrant for their production. And to receive each piece of paper, you will need a whole package of documents.
And in order to stimulate the owners in collecting these documents and to interest them in obtaining approvals, an administrative fine is provided for unauthorized demolition of buildings in Moscow. f Art. 7.4. Law of the city of Moscow dated November 21, 2007 No. 45 "Code of the city of Moscow on administrative offenses":
Another example: Gorno-Altaisk. The permission to demolish a building in this city is issued by the Department of Architecture and Urban Planning a pp. 15.2., 15.3. Rules of land use and development in the city of Gorno-Altaisk, approved. By the decision of the Gorno-Altai City Council of Deputies dated September 15, 2005 No. 29-3. And of course, to obtain such a permit, you also need to submit a number of documents (according to the list established by the Land Use Rules).
In many cities, the preparation and issuance of permits for the demolition or dismantling of objects is assigned to a certain department of the local administration (for example, the department of architecture and urban planning, the department of architecture and urban economy, etc.).
Therefore, a clear list of the documents you need to agree on the demolition of your building must be found out in the local administration.
Upon completion of the demolition or dismantling of real estate, as we have already said, we fill out section 3 of the act in the form No. OS-4. In addition, it would be quite useful to attach to this act a copy of the document of the technical inventory service (certificates from the BTI on demolition and deregistration )p. 9 of the Regulations on the organization in the Russian Federation of state technical accounting ... approved. Decree of the Government of the Russian Federation of December 4, 2000 No. 921.
It is also necessary to put down in the inventory card in the form No. OS-6 approved Decree of the State Statistics Committee of Russia dated January 21, 2003 No. 7 a mark on the disposal of an object of fixed assets in clause 80 of the Guidelines.
The final step in documenting the demolition of the building will be the registration of the termination of ownership of the property, which must be registered b Art. 235 of the Civil Code of the Russian Federation. After all, only when an entry is made in the Unified State Register of Rights to Real Estate and Transactions with it about the termination of ownership of real estate, the organization will cease to be the owner of this real estate. and pp. 1, 3 art. 2 of Federal Law No. 122-FZ of July 21, 1997 “On State Registration of Rights to Real Estate and Transactions with It”. But, as we will see later, from the point of view of accounting and tax accounting this document is not so important now.
In addition to the above documents, to reflect real estate liquidation operations in accounting and tax accounting, you will need contracts for the services of contractors, acts of work performed, payment documents, and others.
When accounting for the liquidation of real estate, first of all, we need to figure out where and when we write off its residual value (of course, if the property has not been fully depreciated). In both accounting and tax accounting, there are several interesting points that need to be considered in more detail.
SITUATION 1. We are demolishing the building and do not plan to build anything in the near future.
Recognition in tax accounting residual value in expenses depends on the depreciation method:
“Depreciable property is property that is owned by the taxpayer and is used by him to generate income a paragraph 1 of Art. 256 Tax Code of the Russian Federation. And the depreciation charge is terminated from the 1st day of the month following the month when the value of the depreciable property object was fully written off or when this object was removed from the taxpayer's depreciable property for any reason. m paragraph 5 of Art. 259.1 of the Tax Code of the Russian Federation. Thus, depreciation ceases to accrue from the 1st day of the month following the month when the fixed asset ceased to be used in the organization's activities. In this case, the actual demolition of the building can be done later.
It is possible to take into account the residual value of a demolished building as part of tax expenses only on the basis of a fully executed act in form No. OS-4, since (as we have already figured out) it is he who is mandatory primary document required for this operation. and sub. 8 p. 1 art. 265 Tax Code of the Russian Federation” .
Ministry of Finance of Russia
Just in case, remember that:
SITUATION 2. We demolish the building for a new construction.
Let's see if there are any differences if you plan to demolish a building in order to build something new in its place. How in this case to take into account the costs of liquidation of real estate (including the cost of demolition or dismantling), as well as the residual value:
The Ministry of Finance has already answered this question: there is no reason to take into account the costs of dismantling and liquidation as part of capital investments in new construction, either in accounting or in tax accounting. e Letter of the Ministry of Finance of Russia dated September 11, 2009 No. 03-05-05-01 / 55; p. 31 PBU 6/01 "Accounting for fixed assets", approved. Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n; sub. 8 p. 1 art. 265, sub. 3 p. 7 art. 272 Tax Code of the Russian Federation. But this answer is about demolition for planned (indefinite future) construction.
But will there be any peculiarities when the demolition of a building is a separate stage of work in new construction? Indeed, in this case, the cost of demolition of the building, as a rule, is reflected in the estimate of construction work. Financial experts think so.
“ In the case where the cost of demolition of a building is included in the estimate for new construction, two different situations are possible. It all depends on where the building that was demolished came from.
Situation 1. The organization bought or took a long-term lease on a land plot with a dilapidated building in order to build a new facility. This dilapidated building is not needed, it was purchased as a load, and not as a benefit. In this case, all the costs of its demolition are included in the cost of the new property. If an organization bought a land plot, then in the cost of the land plot.
Situation 2. The demolished building was previously the organization's main asset. Then both the residual value and the cost of demolition should be attributed to current expenses.
The logic is this: you need to look at what income certain costs are associated with. In the first case, the expenses of the organization are made for the sake of future income. And in the second situation, income from the use of the building has already been received in the past.
Ministry of Finance of Russia
Since we are considering the case when an organization liquidates a building that was accounted for as a fixed asset on its balance sheet, the costs of its demolition and the residual value must be taken into account as independent expenses, regardless of whether something will be built in its place or not .
The residual value of the demolished property can be fully taken into account in other expenses (on account 91-2 “Other expenses” )clause 4, clause 11 PBU 10/99 "Expenses of the organization", approved. Order of the Ministry of Finance of Russia dated 06.05.99 No. 33n. Everything is clear with this (and, as we have already found out, it does not matter at all whether you plan to build something on the site of your old building or not).
The question is when can and should this be done? And it is especially important because book value fixed assets subject to property tax about paragraph 1 of Art. 374 Tax Code of the Russian Federation. If you write off the property earlier than necessary, the inspectors will charge additional property tax and penalties. Until recently (or rather, before the amendments were made to the accounting rules effective from 01/01/2011, which we told you about in, 2011, No. 7), the Ministry of Finance insisted that real estate cannot be written off from the balance sheet until the organization registered the loss of her ownership of this property b Letter of the Ministry of Finance of Russia dated January 28, 2010 No. 03-05-05-01/02. And the regulatory authorities demanded the payment of property tax up to this point.
But the accounting of real estate does not depend in any way on state registration of the transfer (termination) of ownership of it. Minfi already agrees with this n Letter of the Ministry of Finance of Russia dated March 22, 2011 No. 07-02-10/20(more about this - on p. 5, 2011, No. 8).
So how to determine the moment of writing off real estate from the balance sheet as a fixed asset? For clarification, we turned to the specialists of the financial department.
“ This is a difficult question, because practice is at odds with the requirements normative documents. PBU 6/01 requires that fixed assets be written off when it has ceased to bring economic benefits to the organization. And it turns out that it is not always possible to confirm this by the date of the write-off act in the form No. OS-4. After all, if the decision to liquidate the building is made when employees are still working in it (it is in use), then this is not a write-off. It is necessary to write off the fixed asset when it has ceased to be used and it became clear that its use is no longer expected. This may be an order from the manager to stop using the building and begin preparations for demolition. Or some other document from which it meaningfully follows that from this date the operation of the facility has been terminated and its demolition is expected to continue. It does not even matter when it is actually demolished. For example, while there is no money for demolition. The main thing is that the building does not bring economic benefits and we cannot use it.”
Ministry of Finance of Russia
This means that real estate can and should be written off from accounting as fixed assets at the moment when it became clear that it cannot bring you economic benefits - that is, you no longer use it and do not plan to use it in the future. And this moment certainly does not depend on the state registration of the termination of ownership of this property.
If the decision to demolish the building was made by your organization at the same time as the decision to stop using it (and the organization really stopped using the building), then it is not difficult to determine the date of decommissioning the building from the register. This will be the date of the decision to demolish. If you do not plan to demolish the building immediately, then in accounting it is advisable to reflect its conditional assessment on an off-balance sheet account. And decommission the building from off-balance sheet it will be possible after its demolition.
And one moment. Due to the fact that there is usually some time between the day the demolition decision is made and the day the building is actually demolished, there may be differences between tax and accounting accounting in terms of the time when the underdepreciated cost of the building is recognized as expenses (even if depreciation was accrued in tax accounting using the straight-line method). After all, it turns out that:
If the decision that the building can no longer be useful, and its actual demolition fit into one block, then there are no difficulties. But if this process is extended over a longer period of time, it will be necessary to reflect temporary differences according to RAS 18/02.
SITUATION 1. The property was taken into account and put into operation before 01.01.2001.
VAT on real estate, accepted for deduction before 2001, does not need to be restored.
Since we are considering the liquidation of real estate, it is very likely that we are talking about some obsolete (morally or physically) buildings. And it is possible that you acquired them quite a long time ago. If this happened before 2001, then you have no obligation to recover VAT at all. According to the rules of the Tax Code, it is necessary to restore only the tax that was accepted for deduction according to the rules of the same Tax Code (Chapter 21 of the Tax Code of the Russian Federation )paragraph 3 of Art. 170 Tax Code of the Russian Federation. Therefore, if you accepted the input VAT for deduction under the ND Law FROM Art. 7 of the Law of the Russian Federation dated 06.12.91 No. 1992-1 "On value added tax", then you do not need to restore anything about Decree of the FAS PO of October 28, 2008 No. A65-610 / 2007-SA2-22.
SITUATION 2. The real estate was taken into account and put into operation in 2001 and later.
If a not to restore the previously accepted VAT deduction on liquidated property acquired after 2001, this may result in litigation with the taxmen. True, the probability of winning the dispute is almost one hundred percent.
We must say right away that in this situation, the regulatory authorities advocate for organizations to restore VAT upon liquidation of fixed assets underdepreciated in accounting - after all, you will no longer use such fixed assets in activities subject to ND FROM Letter of the Ministry of Finance of Russia dated January 29, 2009 No. 03-07-11/22. The amount of the tax to be restored should be determined as a part of the input VAT previously accepted for deduction, proportional to the residual (book) value, excluding revalued to sub. 1 p. 3 art. 170 Tax Code of the Russian Federation. After you restore the VAT amount, it can be included in other expenses when calculating income tax b Letter of the Ministry of Finance of Russia dated 07.12.2007 No. 03-07-11/617. In accounting, this VAT can also be recognized as an expense (take into account on sub-account 91-2 “Other expenses” )paragraph 4, paragraph 11 PBU 10/99.
However, while in tax code there is no obligation to restore VAT when writing off (liquidating) underdepreciated fixed assets in paragraph 3 of Art. 170 Tax Code of the Russian Federation. That's why arbitration courts support organizations that do not recover input tax G Decrees of the Federal Antimonopoly Service of the Moscow Region of April 27, 2010 No. KA-A40 / 2005-10, of January 13, 2009 No. KA-A40 / 12259-08; FAS TsO dated 03/10/2010 No. A35-8336 / 08-C8; FAS PO of September 23, 2010 No. A12-1810 / 2010, of October 11, 2007 No. A55-733 / 2007; FAS SKO dated 02.08.2010 No. A32-47184 / 2009-19 / 807; FAS VSO dated February 19, 2007 No. А33-8478/06-Ф02-375/07.
In addition to the residual value, there will usually be other expenses. For example, the cost of dismantling, garbage disposal, payment for other services of contractors. Not to mention the costs of coordinating the liquidation itself. All these expenses are safely taken into account both in accounting and when calculating income tax. b paragraph 4, paragraph 11 PBU 10/99; sub. 8 p. 1 art. 265 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated October 21, 2008 No. 03-03-06/1/592.
But with VAT, everything is a little more complicated. If your contractors or other performers of work are payers of this tax, then you need to deal with one difficult question: is it possible to deduct input VAT from “liquidation” services? There are traditionally two positions on this issue (of course, we are considering a situation where the demolished property was previously used in VAT-taxable activities).
POSITION 1. Minfinovskaya: VAT on the work and services of the contractor for the liquidation of fixed assets cannot be deducted I , dated October 22, 2010 No. 03-07-11/420.
The financial department believes that since the liquidation of fixed assets does not apply to transactions subject to VAT, it is also impossible to accept the deduction of input VAT on liquidation (dismantling) work. I paragraph 2 of Art. 171 Tax Code of the Russian Federation.
POSITION 2. Judicial-promising: input VAT on liquidation works and services can be deducted.
By the way, the Presidium of the Supreme Arbitration Court of the Russian Federation has already come to this conclusion. F Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 20, 2010 No. 17969/09. He believes that the use of fixed assets in the activities of the organization is complex and includes the installation, operation, and, if a production need arises, the liquidation of the fixed asset. It follows from this that organizations have the right to deduct VAT paid to the contractor upon liquidation of an item of fixed assets.
As can be seen from the letters of the Ministry of Finance, the position of the regulatory authorities has not yet been influenced by the opinions of arbitration courts and Letters of the Ministry of Finance of Russia dated November 2, 2010 No. 03-03-06 / 1/682, dated October 22, 2010 No. 03-07-11 / 420.
So if you accept VAT on dismantling and liquidation work for deduction, get ready for a conflict with inspectors.
So, it is safer to follow the position of the Ministry of Finance and not to deduct VAT on liquidation and dismantling works.
But here another snag appears: what to do with non-deductible VAT? More precisely, the question can be formulated as follows: Can the input VAT paid to the contractor and not accepted for deduction be included in the cost of liquidation work? t paragraph 2 of Art. 170 Tax Code of the Russian Federation?
Since we did not deduct input VAT, it would be logical to include it in the cost of the work itself, and then take it all into account as other expenses in accounting e paragraph 4, paragraph 11 PBU 10/99 and how non-operating expenses in tax accounting m sub. 8 p. 1 art. 265 Tax Code of the Russian Federation.
VAT on liquidation and dismantling works it is safer not to take it for deduction, but to include it in expenses. So there will be no disputes with the tax authorities.
Let's not beat around the bush: the tax authorities are against accounting for the failed VAT deduction in expenses. The arguments are as follows: input VAT is taken into account in the cost of goods (works, services) if they are purchased for operations that are not subject to taxation. Yu sub. 1 p. 2 art. 170 Tax Code of the Russian Federation, but such operations do not include the liquidation of fixed assets I Art. 149 Tax Code of the Russian Federation. Indeed, in this case, there is no object of taxation of ND at all FROM paragraph 1 of Art. 39, paragraph 1 of Art. 146 Tax Code of the Russian Federation. This means that VAT from the cost of dismantling and liquidation work cannot be taken into account when taxing profits. All these arguments are presented by the inspectors in courts.
However, arbitration courts, considering disputes about what to do with VAT that has not been accepted for deduction, do not share the position of the tax authorities. They do not see fundamental differences between the concepts of "no object of taxation" and "transactions that are not subject to taxation." Therefore, since the taxpayer did not deduct VAT on dismantling work, then, according to the courts, VAT should be included in the cost of the work itself and taken into account when calculating income tax as non-operating expenses d Decrees of the FAS MO dated May 14, 2009 No. KA-A40 / 3703-09-2; of the Ninth Arbitration Court of Appeal dated 06/04/2009 No. 09AP-8136/2009-AK, dated 06/02/2009 No. 09AP-8085/2009-AK; FAS SZO dated 09/03/2007 No. A05-789 / 2007; FAS PO of September 26, 2006 No. A57-31622 / 2005-22; FAS VVO dated December 26, 2007 No. A31-2632 / 2007-23. There has to be some kind of justice.
By the way, our magazine has already published the point of view of the specialists of the Ministry of Finance of Russia on this issue, which allow deductible VAT on the work of contractors that is not deductible (you can read the explanation of E.N. Vikhlyaeva in, 2009, No. 18, p. 58) .
And do not be confused by the fact that some courts allow VAT to be deducted, while others allow this VAT to be taken into account in expenses. The conclusion from all these decisions can be drawn as follows: the taxpayer courts support, no matter how they dispose of the input VAT on liquidation works (both if they accepted it for deduction, and in the case when the input VAT is taken into account in the cost of work and written off to expenses).
As a result of the dismantling of a building, many different materials can be formed. And some of them you can either use yourself or sell. In this case, everything that you find useful should be credited. To do this, it is necessary to draw up an act on the posting of material assets received during the dismantling and dismantling of buildings and structures, in the form No. M-35 approved Decree of the State Statistics Committee of Russia dated October 30, 1997 No. 71a.
For capitalized values it is necessary to define them market value. You must take it into account on the date of decommissioning of real estate:
/ condition / On the balance sheet of the organization there is a building (acquired before 2001) with an initial cost of 5,000,000 rubles. (both in accounting and in tax accounting). To simplify the example, let's assume that the amount of accrued depreciation in accounting and tax accounting is the same - 3,500,000 rubles.
The organization stopped using the building and decided to demolish it. Both of these decisions were made simultaneously (in April 2011) and are reflected in sections 1 and 2 of the act for writing off an item of fixed assets in the form No. OS-4.
For demolition, the organization attracted a contractor, the cost of its work is 450,000 rubles. plus VAT 81,000 rubles. (total 531,000 rubles). The building was demolished in May 2011.
The cost of materials remaining after dismantling, suitable for further use, is set at 90,000 rubles. The results of the demolition are reflected in section 3 of the act in form No. OS-4 in May 2011.
/ solution / Since the building was purchased before 2001, there is no need to recover VAT when the building is demolished.
The organization decided not to deduct VAT on dismantling work performed third party, and included them in the cost of these works.
The following entries will be made in the accounting.
| Contents of operation | Dt | ct | Amount, rub. |
| Write-off of the original cost of the liquidated building | 01 "Fixed assets" | 5 000 000 | |
| Written off depreciation on the liquidated building | 02 "Depreciation of fixed assets" | 01, sub-account "Disposal of fixed assets" | 3 500 000 |
| Written off the residual value of the building | 91-2 "Other expenses" | 01, sub-account "Disposal of fixed assets" | 1 500 000 |
| The cost of the building in the conditional valuation is reflected off the balance sheet | 1 000 | ||
| In accounting from next month, depreciation will no longer be charged | |||
| As of the date of completion of the liquidation of the building and signing of the certificate of completion for the demolition of the building (as of the date of execution of section 3 of the act in the form No. OS-4 - in May 2011) | |||
| The costs of paying for the work of the contractor are reflected, including VAT, which it was decided not to accept for deduction | 91-2 "Other expenses" | 60 "Settlements with suppliers and contractors" | 531 000 |
| 10 "Materials" | 91-1 "Other income" | 90 000 | |
| The cost of the building is deducted from the balance sheet | 013 "Buildings to be demolished" | 1 000 | |
Tax accounting of liquidation operations.
| the name of the operation | Classification of income/expense | Amount, rub. | Document |
| On the date of the decision that the building will no longer be used by the organization (as of the date of approval by the head of sections 1 and 2 of the act in the form No. OS-4 - in April 2011) | |||
| The building is excluded from the depreciable property, depreciation on it will be terminated from the next month (from May 2011) | |||
| As of the date of approval by the head of the results of the demolition (as of the date of execution of documents on the demolition of the building and section 3 of the act in the form No. OS-4 - in May 2011) | |||
| Accounted for costs in the form of residual value of the building (5,000,000 rubles - 3,500,000 rubles) |
non-operating expense d sub. 8 p. 1 art. 265 Tax Code of the Russian Federation | 1 500 000 | Fully completed act in the form No. OS-4, documents on the demolition of the building |
| Costs for demolition work (450,000 rubles + 81,000 rubles) |
non-operating expense d sub. 8 p. 1 art. 265 Tax Code of the Russian Federation | 531 000 | Contract for contract work, act of completed contract work |
| Received materials suitable for further use | non-operating income d paragraph 13 of Art. 250, sub. 8 p. 4 art. 271 Tax Code of the Russian Federation | 90 000 | Act on the posting of material assets in the form No. M-35 |
As you can see, there are a lot of nuances in the demolition of real estate. Both management and accounting should pay attention to all of them. And it's better to do it BEFORE DEMORTION.
It is believed that the demolition of buildings is a necessary, important and sometimes quite costly part of almost any construction process. Issues related to construction activities in Russia are regulated by the Civil Code of the Russian Federation, the Civil Code of the Russian Federation, the Federal Law of November 17, 1995 N 169-FZ "On Architectural Activities in the Russian Federation", as well as other regulatory legal acts, including acts adopted on regional and local levels in accordance with federal legislation.
According to the current legislation, construction and reconstruction in the Russian Federation is carried out on the basis of a building permit. A building permit is a document confirming the compliance of project documentation with the requirements of the town-planning plan of the land plot and giving the developer the right to build, reconstruct capital construction projects, as well as their overhaul, with the exception of cases provided for by law (Article 51 of the Civil Code of the Russian Federation). This document is a legal basis for construction and some other types of construction activities. Construction without a properly issued permit can have negative consequences - first of all, the building can be recognized as unauthorized (it will be discussed later about unauthorized construction and its consequences).
A building permit is issued by local authorities (with the exception of certain cases established by the Civil Code of the Russian Federation) at the location of the land plot. For the purpose of construction, reconstruction, repair of a capital construction facility, the developer applies to the authorized bodies with an application for a construction permit. To this statement the developer, in addition to such documents as documents of title to the land plot, urban planning plan of the site, positive conclusions of state and state environmental expertise, also attaches the materials contained in the project documentation, among which the project for the organization of work on the demolition or dismantling of capital construction objects, their parts is mandatory . - demolition country houses and dachas.
In addition, the Civil Code of the Russian Federation fixed the possibility of issuing permits for certain stages of construction, reconstruction. The construction phase is usually understood as a wide range of works, including those related to the demolition of buildings and structures on the site intended for the construction of a new facility.
Based on the Civil Code of the Russian Federation in the constituent entities of the Russian Federation and municipalities, various regulatory legal acts were developed and approved that determine the procedure for preparing documents for issuing permits for the demolition or dismantling of capital construction projects on the territory of the respective municipalities. Despite the wide variety of such acts, after their systematization, it is possible to single out defining points regarding the basic rules for issuing demolition permits.
Thus, a separate stage of construction is the demolition or dismantling of capital construction projects for:
As a rule, the preparation and issuance of permits for the demolition or dismantling of objects is entrusted to the relevant department of the local administration (for example, the department of architecture and urban planning, the department of architecture and urban economy, etc.).
Preparation of documents for issuing a permit is carried out on the basis of an application from the owner of the facility, which is submitted to the head of administration. In this case, the applicant must provide the following documents:
In some cases, any additional documents may be required, for example, the conclusion of the relevant department (or committee) of the administration on changing or maintaining the status of the land plot or its parameters. The administration notifies the applicant of the results of consideration of the accepted documents, as a rule, within thirty days. The completion of the demolition or dismantling is confirmed by the documents of the technical inventory service and the act of examining the results of the demolition or dismantling of the object, drawn up by the owner of the object (signed by representatives of the fire supervision, engineering services, chief architect, etc.). In addition, such acts briefly indicate the demolition of objects in individual housing construction sites.
Demolition residential buildings and outbuildings on individual building plots is made by the owner at his own discretion. The basis for registration of the demolition of such buildings are the documents of the technical inventory service.
According to Art. 48 of the Civil Code of the Russian Federation, the design documentation for capital construction facilities also includes the section "Project for the organization of work on the demolition or dismantling of capital construction facilities, their parts (if necessary, demolition or dismantling of capital construction facilities, their parts for construction, reconstruction of other capital construction facilities)" .
In pursuance of the provisions of Art. 48 of the Civil Code of the Russian Federation Decree of the Government of the Russian Federation of February 16, 2008 N 87 "On the composition of sections of project documentation and requirements for their content" approved the Regulations on the composition of sections of project documentation and requirements for their content. According to this provision, project documentation for capital construction facilities of industrial and non-production purpose should consist of twelve sections, the requirements for the content of which are established by the said Regulations. Section II contains a list of documents required for the preparation of project documentation for a capital construction facility, among which the following documents are also indicated: acts (decisions) of the owner of the building (structure, structure) on decommissioning and liquidation of the capital construction facility - if demolition is necessary ( dismantling); the decision of the local government on the recognition of a residential building as emergency and subject to demolition - if necessary, the demolition of a residential building.
Section 7 of the design documentation "Project for the organization of work on the demolition or dismantling of capital construction objects" is carried out if it is necessary to demolish (dismantle) an object or part of a capital construction object. Paragraph 24 of the said Regulation defines the list of information that this section should contain. So, among the specified information, for example, the following are named:
In addition, the design documentation in the graphic part must also contain:
It should be noted that in accordance with Decree of the Government of the Russian Federation of March 5, 2007 N 145 "On the procedure for organizing and conducting state examination of project documentation and results engineering surveys"the absence in the project documentation of the sections provided for in Article 48 of the Civil Code of the Russian Federation, or the inconsistency of the sections of the project documentation with the requirements for the content of the sections of the project documentation, are grounds for refusing to accept the project documentation and (or) the results of engineering surveys submitted for state expertise.
Project documentation is approved by the developer or customer. If the project documentation is subject to mandatory state examination, it is approved by the developer or customer only if there is a positive conclusion of the examination (Article 48 of the Civil Code of the Russian Federation). - demolition of country houses and summer cottages
In order to make it easier in the future to consider the relationship of persons, one way or another connected with the problems of the demolition of buildings, it is first necessary to get acquainted with the main participants in the construction process.
According to the legislation regulating investment activity in the Russian Federation, subjects investment activity are:
Often in practice, one organization combines the functions of several participants in the construction process: an investor, a customer (developer) or a contractor. Relations between the subjects of investment activity are carried out, as a rule, on the basis of agreements (or government contracts) concluded in accordance with the legislation of the Russian Federation.
Investors make capital investments in the territory of the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation. They can be individuals and legal entities created on the basis of a joint activity agreement and not having the status of a legal entity, associations of legal entities, state bodies, local governments, as well as foreign entities. entrepreneurial activity(foreign investors).
Placement of orders for contractors construction works for state needs at the expense of funds federal budget and funds from the budgets of the constituent entities of the Russian Federation in the implementation of investment projects, government customers by holding competitions in accordance with the legislation of the Russian Federation. Local governments provide the necessary conditions for the development, approval and financing of investment projects implemented municipalities at the expense of funds local budgets placed on a competitive basis. The costs of financing investment activities carried out in the form of capital investments by local governments are provided for by local budgets.
As for the customer, the following should be noted. In different regulations(and, accordingly, in the literature) the terms "customer", "developer" or "customer-developer" are used.
The customer-developer directly implements investment project, provides the construction process. An investor usually attracts some specialized organization as a customer-developer, as a rule, for a long time and successfully working in this segment of the economy, having specialists with the necessary knowledge, skills, and qualifications on staff.
Customers-developers who are not at the same time investors are vested with the rights of ownership, use and disposal capital investments for the period and within the limits of authority, which are determined by the contract for capital construction or government contract. The customer bears the responsibility established by the current legislation and (or) the contract to the investor for the intended use of his funds.
During the preparation of construction, the customer performs many functions, including necessary actions for the development of the territory and the allocation of land. In this case, the customer:
The customer determines the costs for the preparation and development of the construction area.
Other costs include:
To determine the amount of material damage in connection with the demolition (transfer) of buildings, structures, structures and the destruction or damage to plantings, a certain act is drawn up. This act (form N KS-10, approved by the Decree of the Russian Statistical Agency of November 11, 1999 N 100 "On approval of unified forms of primary accounting documentation for accounting for work in capital construction and repair and construction work") is drawn up by a commission, which should include the owner (owner) of the building, structure, structure, planting to be demolished, or his representative, the representative of the customer (developer) of the newly constructed facility, the representative of the technical inventory bureau. If necessary, the commission may include representatives of other interested organizations.
Let us now turn to the issue of reconstruction of buildings, structures, structures. Quite often, in practice, reconstruction is understood as the demolition of an existing property and the construction of a new object in its place. This approach is incorrect and contrary to the norms of the current legislation of the Russian Federation.
According to Art. 1 of the Civil Code of the Russian Federation, construction is understood as the creation of buildings, structures, structures (including on the site of demolished capital construction projects). The Civil Code of the Russian Federation also defines the concept of reconstruction, which refers to a change in the parameters of capital construction objects, their parts (height, number of floors, area, indicators production capacity, volume) and quality of engineering and technical support. The analysis of these concepts, their comparison allows us to conclude that the reconstruction, that is, the change in the capital construction object, does not require the demolition of this object. Therefore, if demolition is carried out during reconstruction, then it indicates new construction, but not reconstruction in the sense given by the Civil Code of the Russian Federation. In addition, in this case, the question of acquiring the right of ownership of a newly built property always arises (however, such a situation can be created intentionally, most often in the interests of the investor). By virtue of Art. 235 of the Civil Code of the Russian Federation, from the moment of demolition (destruction) of the property, the right of ownership to it is terminated. Therefore, if the investor (customer) initially drew up documentation for the reconstruction of a real estate object (with a possible resolution of issues with owners, tenants, tenants, etc.), and as a result, the object was demolished, then later at the stage of paperwork and registration of the right to erected object, an interested person (investor, customer) may have problems, which, most likely, will have to be resolved in court.
There are situations when a person, having just started reconstruction, discovers that this object, in its own way, technical condition not subject to reconstruction (for example, before the start of work, a complete survey of the object was not carried out, an error in calculations, etc.). The correct behavior of the person in this case will be the complete cessation of work on the reconstruction of the object. If the object also poses a danger to others, for example, it threatens to collapse, it is necessary to take measures aimed at ensuring safety (install barriers, set guards, etc.). The further fate of the object is decided by the owner or the relevant authorized body. If a decision is made to demolish, preparations will begin. required documents for a demolition permit.
Consider the issue of withdrawal of land for state or municipal needs. The legislation allows for the alienation of immovable property in connection with the withdrawal of a land plot.
current Russian legislation establishes the procedure for the withdrawal of a land plot for state or municipal needs from the owner. According to Art. 49 of the Land Code of the Russian Federation, the seizure, including by way of redemption, of land plots for state and municipal needs can be carried out in the following cases:
