We rent a car from an employee and charge insurance premiums. We confirm the costs of a car rented from an employee Car rental by an organization from an employee

13.06.2019

A car is a resource without which it is difficult for any entrepreneur and organization to do. But in some types of business, it is not always needed, so it is not always advisable to acquire it as a property. In such cases, rent will help out. Most often, such an agreement is concluded with an individual, mainly an employee. You can also rent from the organization.

Consider how to correctly reflect the financial consequences of a car rental agreement in accounting, as well as how they affect taxation.

Rights and opportunities of the vehicle lessee

Rent a Car vehicle - this is the conclusion of an agreement according to which the said car is provided for temporary use by its owner in favor of the lessee (Article 34 of the Civil Code of the Russian Federation). The purposes of using the machine are not specified, of course, by default they should not be illegal.

The type of lease is chartering– contract for the use of transport together with the crew (driver).

A car lessor can be a person of any status:

physical;
legal;
individual entrepreneur.

The tenant of the car, with the consent of the lessor, may conclude gratuitous contract or loan agreement. If for the needs of the organization the car of its employee is used, which he manages himself, the company compensates him for the costs.

All possible options lease - hire without a crew, freight, free rent, loan or compensation - are reflected in accounting in different ways and affect the tax burden.

Car rental agreement

Civil Code of the Russian Federation in Art. 606 allows you to provide your property, including a vehicle, for temporary operation or possession and formalize this with an appropriate agreement. Since a car is movable property, there is no need to notarize or register such an agreement with the state.

IMPORTANT! It does not matter for how long and with what features a lease agreement is concluded - it must be drawn up exclusively in writing.

Validity periods such an agreement may be limited, but more often they are not prescribed, and the validity period remains indefinite (Article 610 of the Civil Code of the Russian Federation).

Vehicle rental with crew (freight) provides on the part of the lessor not only the provision of a car, but also the provision of services for management, repair, maintenance, storage, etc. (Article 632 of the Civil Code of the Russian Federation).

Crew members are representatives of the lessor - his employees. For the duration of the contract, they will have to comply with the lessee's instructions regarding the commercial use of the leased vehicle. Features of payment for their services are set out in the contract: if this clause is omitted, by default, the lessor pays the crew members, since it is he who is their employer.

Rent a car without a crew does not provide for additional services, only the car itself is provided for use (Article 642 of the Civil Code of the Russian Federation).

NOTE! If the employer has entered into a car rental agreement with his employee, this means that the car is hired without a crew, because the employee cannot be his own employer.

Accounting for car rental transactions

In order to reflect in accounting the funds that are associated with renting a car, you need a primary documentary basis. An acceptance certificate is recognized as such - a document indicating the transfer of the vehicle to the use of the tenant. It must include:

make and model of the car;
its mileage at the time of transfer;
the value of this asset;
technical inspection data;
the number of the lease agreement signed by the parties.

The rented car is registered by the accountant on the off-balance account 001 “Rented Fixed Assets”, it will be debited from it at the end of the lease term and returned back to the owner. It cannot be put on the balance of account 01 “Fixed Assets”, since it is not acquired into ownership. For the same reason, depreciation is not charged.

The finances that accompany the rental process will be reflected in the accounts relating to the activities carried out by the organization, in the debit of the accounts:

20 "Main production";
23 "Auxiliary production";
25 "General production costs";
26 "General business expenses";
29 "Service industries and farms";
44 Selling costs.

Tenant entry examples:

debit 20 (44), credit 76 "Settlements with various debtors and creditors" - rent charged for the use of the vehicle;
debit 76, credit 68 “Calculations for taxes and fees” - deduction from the amount of payment for movable property that is rented from an individual;
debit 76, credit 50 "Cashier" (51 "Settlement account") - transfer of funds for the use of rented vehicles.

Examples of transactions for the lessor:

debit 76, credit 91.1 “Other income” - reflects the accrual of rent for the car;
debit 51, credit 76 - receipt of funds in payment for car rental.

The lessor remains the owner of the asset - movable property, which is recorded on a special sub-account of account 01. He continues to accrue the usual depreciation on it: debit 20 “Main production”, credit 02 “Depreciation of fixed assets”.

If the owner of the car is an employee of the employer

The lease agreement is concluded in the form "without crew". Unless the parties have agreed otherwise, the employee - the owner of the car - pays only for the technical inspection. The remaining payments are made by the tenant himself, namely:

insurance;
parking;
gas station;
repair;
compensation for use official purposes personal car- contract rent.

For an organization or an individual employer, these payments are expenses, that is, taxable funds. To reduce the tax base, they must be supported by payment documents (receipts from gas stations, a copy of an insurance card, etc.). Accounting is similar to the one described above with several nuances.

FOR YOUR INFORMATION! If the lease agreement is concluded with your own employee, then instead of account 76, account 73 “Settlements with personnel for other operations” should be used.

An example of transactions for renting an employee's car:

debit 0001 - acceptance of the employee's car for off-balance accounting at a cost determined by the contract;
debit 26, credit 73 - charge for using the employee's car;
debit 73, credit 68 - withholding personal income tax from an employee who received income - rent;
debit 73, credit 51 - transfer of rent to the employee minus income tax on the card;
debit 10, credit 60 - accounting for fuel and lubricants(by check, without tax);
debit 19, credit 60 - for fuel and lubricants;
debit 68, credit 19 - VAT deduction;
debit 26, credit 10 - fuel write-off;
debit 90, credit 26 - accounting for other expenses;
001 - return the car to the employee.

Tax issues of vehicle rental

It is necessary to take into account the nuances of calculating VAT and income tax associated with rented vehicles.

Rental without a crew

VAT is accepted by the tenant for deduction if the following conditions are met:

the lessor has presented invoices with allocated VAT;
the car is used for activities subject to this tax;
there is an acceptance certificate for the car.

income tax from car rental is taken into account on the last day of the reporting period for this tax. In other words, rent payments as expenses reduce the tax base. They are included in "Other production and distribution costs" if the organization applies the accrual method.

personal income tax deducted from the employee if he rented a car to his employer, who himself is his tax agent. He deducts 13% of the rent received. If a personal car is leased to another organization, and not to their superiors, the "native" employer must deduct 13%.

Rental with crew

The owner of the car that the company has chartered, serves it himself and bears the associated costs, because in fact he becomes, as it were, temporarily an employee of the company. It, in turn, pays the rent on time and most often pays the cost of fuel, because without it the car will not be able to function. These costs form the basis for accounting for the taxable base.

VAT paid according to the same scheme as for bareboat charter.

personal income tax in the usual amount of 13% is withheld only if the car belongs to an individual. If it is owned by an organization, personal income tax is not paid from the driver's salary. The same applies to insurance premiums - they are withheld only when renting from individuals.

income tax, if the owner of the car is an individual, is divided into two groups: the cost of renting a car and the cost of paying for driver services. Lease payments are accounted for in the same way as if the owner is a legal entity or the car is rented without a crew. But the payment to the driver can be recognized as an expense in different ways:

if the driver is not an employee of the organization, these will be labor costs;
if the owner of the car works in a company and "drives" her free time, this will be "other expenses for sales and production."

Car rental insurance premiumsare not accrued and not paid by the tenant only if a car is rented without a crew. If a car with a crew is rented, then you will definitely have to accrue and pay insurance premiums for OPS and OMS. The need to pay contributions to the OSS in case of injury is additionally discussed in the contract.

Vehicle rental agreement

If you want to take a car for temporary use, then in order to avoid any consequences, you must choose the right car and draw up a vehicle rental agreement, specifying all the obligations of the parties in it. The interaction between the lessor and the lessee under vehicle lease agreements is regulated by paragraph 3 of Ch. 34 of the Civil Code of the Russian Federation. A vehicle rental agreement between a legal entity and an individual is concluded in a simple written form.

The vehicle rental agreement usually specifies:

make and model of the car, VIN, mileage;
lease term (beginning and end);
rights and obligations of the parties;
the amount, terms and procedure for paying the rent;
the procedure for transferring the car (place of transfer and place of return), the procedure and terms of payment;
presence or absence of collateral;
the responsibility of the parties;
grounds and procedure for termination of the contract;
addresses, details of the parties.

An act of acceptance and transfer of the vehicle must be attached to the vehicle lease agreement. In addition to the vehicle lease agreement, the tenant needs to transfer the documents for the car: Title, vehicle registration certificate, OSAGO policy, if available, a CASCO policy.

There are 2 types of vehicle lease agreements: with a crew and without a crew.

Renting a car without a crew from an individual

The conditions for the transfer of a car without the services of a crew are specified in Art. 642-649 Civil Code. In accordance with the terms of the car rental agreement without a crew, individual the lessor receives a remuneration from the tenant, from which the legal entity renting the car must withhold personal income tax.

At the same time, the tenant does not have an obligation to withhold insurance fees from an individual due to the fact that the subject of a vehicle lease agreement is the transfer of the property of an individual for use, and not the provision of services or work.

Such a type of service as the transfer of a car for rent (as well as any other property, except for property rights to copyrighted works, etc.), is not an object for withholding insurance premiums (clause 4, article 420 of the Tax Code of the Russian Federation).

A similar opinion that insurance premiums are not withheld from the rent for a car from an individual lessor was expressed in the letter of the Ministry of Health dated 12.03.2010 No. 550-19.

Car rental with driver

If the car is rented with a crew, i.e. if the owner of the car intends to provide his services as a driver and a mechanic who monitors the good condition of the vehicle, then the situation with the deduction of insurance premiums is different. The conditions for the transfer of a car for rent with related services of this kind are regulated by Art. 632-641 of the Civil Code.

Due to the fact that the owner of the car, along with the transfer of property for rent, also offers his services under a civil law contract, contributions from these services must be withheld. We are talking about that part of the amount paid to an individual under a car rental agreement with a crew, which goes towards payment for his work.

It would be more expedient to divide the services for renting a car directly and the “labor service” of its owner in a vehicle lease agreement by allocating these two amounts. Such a division of car rental services with a crew into 2 parts is not regulated by civil law, but it is advisable to do so in order to avoid disputes with inspectors.

Since such a lease agreement contains income for the work of an individual, the inspectors will consider the amount of contributions from the entire amount of the agreement, unless the amount of payment for the work of the driver of the car, who is also his lessor, is allocated separately.

If these 2 amounts are not divided in the contract, but accruals are made from an amount smaller than the rent, stipulated by the treaty, then during the check, with a high degree of probability, additional accrual of insurance premiums will be made.

To resolve the conflict with the inspectors, you will have to go to court. At the same time, it should be borne in mind that the vast majority of courts agree with taxpayers that additional assessment of contributions is illegal, and the requirement of inspectors to separate these 2 amounts in the contract is unreasonable, since there is no such requirement in the Civil Code of the Russian Federation. The following court decisions can serve as an example of this: 3 of the Arbitration Court of Appeal dated April 26, 2013 No. 03AP-121/12, FAS of the Volga District dated January 15, 2013 No. F06-10012 / 12.

As for what insurance payments are charged at the conclusion of such an agreement, everything is quite simple here. So, from the income of the lessor, who also provides services for driving a vehicle and monitors it technical condition, will be in without fail contributions to the OPS and OMS are accrued.

But social insurance contributions in the event of accidents will be withheld only when the condition for their deduction is specified in the vehicle rental agreement (clause 1, article 20.1 of the law “On Compulsory Social Insurance against Industrial Accidents and Occupational Diseases” dated 24.07. 1998 No. 125-FZ).

Car rental accounting entries

A legal entity tenant will need to display the operation of renting a car with a crew in accounting. For this, the following wiring is useful:

Dt 26 Kt 76 - car rental costs;
Dt 26 Kt 69 (sub-account of settlements for the OPS) - accrual of contributions to the OPS from the amount of payment for car management and maintenance services;
Dt 26 Kt 69 (sub-account of settlements for compulsory medical insurance) - accrual of contributions for compulsory medical insurance from the amount of payment for car management and maintenance services;
Dt 76 Kt 68 (subaccount of personal income tax settlements) - personal income tax withheld from the total amount of the fee for renting a car with a crew;
Dt 76 Kt 51 - payment was made to the lessor under the lease agreement minus personal income tax;
Dt 69 (sub-account for settlements under the OPS) Kt 51 - contributions to the OPS were transferred;
Dt 69 (sub-account of settlements for compulsory medical insurance) Kt 51 - contributions to compulsory medical insurance were transferred;
Dt 68 (subaccount for personal income tax settlements) Kt51 - personal income tax paid.

How to avoid paying insurance premiums?

There are several ways to avoid paying insurance premiums. The most common is the registration of labor relations with an employee who has a car, for which a lease agreement is subsequently drawn up. That is, employers in advance, when placing job advertisements, indicate such a condition as the presence of a car. This condition assumes that the activity of the new employee will be associated with traveling, for which he will need a car.

Also, a car can be rented from an employee already working under an employment contract if such a need arises. Thus, only a car rental agreement without a crew is concluded, which means that under such an agreement there will be no deductions from insurance premiums. As for the withholding of insurance premiums from the salary of an employee who acts as a lessor and drives the same car, they should be withheld anyway.

The warning contained in paragraph 2 of Art. 635 of the Civil Code of the Russian Federation, regarding the fact that crew members must be employed by the lessor, refers to cases where the lessor hires third parties to manage and maintain the rented car. If he himself performs these functions, then this warning does not apply to him, because he cannot formalize an employment relationship with himself.

Another way to avoid paying insurance premiums is not to conclude a lease agreement, but to compensate the employee's expenses. So, if an employee needed to use a car (whether his own or not) to perform his job duties, then the employer compensates him for these costs.

At the same time, an important condition is the documentary justification of the costs incurred, because the amount of compensation is not subject to personal income tax, and contributions are not withheld from it (letters of the Ministry of Finance of December 31, 2010 No. 03-04-06 / 6-327, the Ministry of Labor of July 25, 2014 No. 17-3 /В-347), therefore, the fiscal authorities, when conducting inspections Special attention apply to such cases.

Vehicle insurance

The obligation to insure auto liability to third parties for damage that may be caused in connection with the operation of the car (OSAGO) lies with the lessor. This condition is spelled out in Art. 637 of the Civil Code of the Russian Federation, adjusted for the fact that a different procedure may be specified in the lease agreement.

This means that, by default, the cost of insurance for a rental car is borne by the owner of the car, who is the lessor in this transaction. In turn, if the insurance is paid by the tenant under the terms of the contract, this will allow him to reduce taxable income in accordance with Art. 263 of the Tax Code of the Russian Federation.

For information on the extent to which car insurance costs will be taken into expenses, read the article. "Standards provided for by the Tax Code of the Russian Federation" .

Results

Vehicle rental agreements are divided into 2 types: a car is provided with and without a crew. The legal nature of these 2 types of vehicle lease agreement is different, since when renting a car with a crew, 2 types of legal relations arise: its maintenance.

Due to the presence of legal relations related to the performance of labor duties, the tenant should pay insurance premiums. At the same time, insurance premiums for OPS and MHI must be withheld without fail, but from the amount that goes to pay the driver (crew) of the vehicle. Insurance premiums for OSS for injuries are paid only if this is expressly mentioned in the lease agreement.

Accrual of insurance premiums under a vehicle lease agreement without a crew is not carried out, because there is no object of taxation of contributions for compulsory insurance.

With regard to the payment of insurance premiums in insurance company(OSAGO - mandatory, CASCO - optional), then by default these payments are made by the lessor. However, the contract can provide for the payment of such payments by the tenant, if this does not contradict the law.

The legal regulation of each of them has its own characteristics. Under a vehicle rental agreement with a crew, the lessor must provide the lessee with a car and provide him with services to drive this car and technical operation(Article 632 of the Civil Code of the Russian Federation). Under a vehicle lease agreement without a crew, the lessor simply must provide the tenant with a car for temporary possession and use (Article 642 of the Civil Code of the Russian Federation).

Situation: is it possible to conclude a rental agreement for a vehicle with a crew with an employee of the organization

The question is ambiguous. According to the Civil Code of the Russian Federation, when renting a vehicle with a crew, the persons driving this vehicle and ensuring its technical operation must be in an employment relationship with the lessor (clause 2, article 635 of the Civil Code of the Russian Federation).

At the same time, the regulatory authorities do not dispute the possibility of concluding a rental agreement for a vehicle with a crew with an employee (founder) (see, for example, letter of the Russian Ministry of Finance dated July 14, 2008 No. 03-04-06-02 / 73).

If it becomes necessary to conclude a vehicle lease agreement with the employee for the provision of management and technical operation services, conclude two agreements - a vehicle lease agreement without a crew and an agreement for the provision of management and technical operation services. In this case, the presence of hired employees is optional. At the same time, the provision of services for management and technical operation should not be included in the number of official duties employee. Otherwise, payments under a service agreement may be recognized as economically unjustified (Article 252 of the Tax Code of the Russian Federation).

When concluding a vehicle rental agreement, pay attention to the description of the rented vehicle. It is necessary to prescribe such specifications so that you can accurately determine which car the organization rents. Only in this case the lease agreement is considered concluded. This is stated in paragraph 3 of Article 607 of the Civil Code of the Russian Federation. Therefore, the contract must indicate the make of the car, year of manufacture and color, body and engine numbers, state To make the description more complete, information can be transferred to the contract from the vehicle's passport or certificate of registration.

To operate the company's car (the lessee) will need a certificate of registration, a registration certificate, a technical inspection ticket and a policy (if the employee (lessor) has insured the organization's liability risk). So that the employee (lessor) does not evade the transfer of documents, this obligation can be prescribed in the contract. In addition, the contract can provide for the responsibility of the employee for violation of the deadlines for the transfer of documents in the form of a penalty (fine, penalties).

When renting personal car employee, be sure to read the terms of insurance of this car (OSAGO). If the organization rented an already insured car, three situations are possible.

First: the insurance policy states that an unlimited number of people are allowed to drive a car. In this case, you do not need to do anything with insurance.

Second: the insurance policy specifies specific people who have the right to drive a car. If the organization plans to allow other people to drive it, the policy will need to be amended. This must be done by the landlord. You will have to pay for changes to the policy. If the lease agreement does not oblige the employee (landlord) to have insurance, all additional expenses will be borne by the organization (tenant) (Articles 646 and 637 of the Civil Code of the Russian Federation). These costs can be taken into account when calculating income tax (clause 2, article 263 of the Tax Code of the Russian Federation).

Third: the employee-lessor does not provide the organization-tenant with a compulsory civil liability insurance policy. In this case, the organization must independently issue an OSAGO policy. After all, the owners of vehicles (who are obliged to insure liability) are recognized not only as owners, but also those who rent vehicles (Article 4 of the Law of April 25, 2002 No. 40-FZ).

If the lease agreement does not provide for the repurchase of the car by the organization (tenant), then during the term of the agreement the car belongs to the employee-lessor (Article 608 of the Civil Code of the Russian Federation).

The vehicle lease agreement may provide for the purchase of the vehicle. In this case, at the end of the term of the contract (or before the end of the term, but after the payment of the redemption value), the tenant becomes the owner of the car (clause 1, article 624 of the Civil Code of the Russian Federation).

Accounting rules

In accounting, reflect the cost of the car received for rent on the off-balance sheet in the assessment adopted in the contract. When you receive a car for rent, make the wiring:

DEBIT 001

- reflects the cost of the car received for use.

Operations for obtaining a car for rent in accounting reflect on the basis of the act of acceptance and transfer of the vehicle. It must indicate the agreed value of the transferred car, its mileage, as well as the technical condition based on the results of the inspection. The act of transfer can be drawn up on a standard form (forms No. OS-1 or No. OS-1b, approved by the Decree of the State Statistics Committee of Russia dated January 21, 2003 No. 7) or in any form. It is not necessary to open an inventory card for a rented car according to the forms No. OS-6, No. OS-6a. This is stated in paragraph 14 of the Guidelines approved by order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n.

Do not accrue depreciation on a rented car that is not on the balance sheet (clause 50 of the Guidelines approved by order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n). Allocate the rental amounts to the cost accounts for the activities for which the car was rented:

DEBIT 20 (23, 25, 26, 29, 44 …) CREDIT 76

- reflects the fee for renting an employee's personal car.

Example

In February 2015, Alfa LLC (lessee) entered into a lease agreement for a vehicle without a crew with a regular driver Yu. I. Kolesov.

Rental object - a car:

- brand - "Ford Focus";

– register sign- T543NE99;

– an identification number(VIN) - ХТА211020Х0325409;

– type – sedan;

– year of issue – 2009;

- engine - No. Х02395409;

- White color;

- engine power (kW / hp) - 82/112;

- vehicle passport - series 62AC No. 776059;

– certificate of registration – series 45 EX No. 062540.

Car rented for business trips Commercial Director The term of the contract is from February 1, 2015 to January 31, 2016. The cost of the car is 175,000 rubles. The monthly rent for the car is 11,800 rubles.

The accountant of Alpha LLC made the following entries in the accounting.

In February 2015:

DEBIT 001

- 175,000 rubles. - a car received for rent was accepted for off-balance accounting (on the basis of an act of acceptance and transfer of the vehicle).

Monthly during the term of the lease:

DEBIT 26 CREDIT 76

- 11,800 rubles. - reflects the fee for renting an employee's personal car.

Tax calculation

personal income tax. The rent paid to an employee is recognized as his taxable income (subclause 4, clause 1, article 208 of the Tax Code of the Russian Federation). Depending on whether the employee is a resident or non-resident, personal income tax must be charged at a rate of 13 or 30 percent (Article 224 of the Tax Code of the Russian Federation). Withhold personal income tax upon actual payment of rent (clause 4, article 226 of the Tax Code of the Russian Federation).

Situation: is it necessary to withhold personal income tax from income in kind if the organization pays for repairs, maintenance and other expenses associated with the operation of a car rented from an employee. The organization applies the general system of taxation

The answer to this question depends on the type of costs and the terms of the contract.

Consider the repair costs in the following order. If, under the lease agreement, these expenses are borne by the lessor, and in fact they were incurred by the lessee organization, then this is the income of the lessor in kind (Articles 634, 644 of the Civil Code of the Russian Federation). Include such income of an employee (landlord) in the personal income tax base.

In all other cases, the cost of repairs is not income of the lessor. This is explained by the fact that the lessor (employee) does not receive any economic benefit (income) (Article 41 of the Tax Code of the Russian Federation). Therefore, there is no tax base for personal income tax.

Account for maintenance costs in the same manner as repair costs. That is, if under the lease agreement these expenses are borne by the lessor, and in fact they were incurred by the lessee organization, then this is the income of the lessor in kind (Articles 635, 645 of the Civil Code of the Russian Federation, clause 2 of Article 211 of the Tax Code of the Russian Federation). Include such income of an employee (landlord) in the personal income tax base. In other cases, the cost of the technical inspection carried out is not the income of the lessor (employee).

Fuel and lubricants and other similar costs (the amount of which depends on actual consumption) should not be included in the personal income tax base. The tenant carries out them exclusively in his own interests (Articles 636, 646 of the Civil Code of the Russian Federation).

Consequently, the employee (lessor) does not receive any economic benefit and there is no income in kind (Clause 2, Article 211 of the Tax Code of the Russian Federation). Therefore, there is no need to pay VAT in this case.

Similar explanations were given by specialists of the Ministry of Finance of Russia in letters No. 03-04-06-01/220 dated July 9, 2007 and No. 03-04-06-01/194 dated July 11, 2008.

If the organization has made improvements to the property (for example, reconstruction or modernization) with the consent of the employee (lessor), the costs of the tenant organization associated with such improvements are considered income of the lessor in kind (clause 2, article 211 of the Tax Code of the Russian Federation). The date of receipt of income in this case is the moment of transfer of the reconstructed (modernized) car to the employee (lessor) at the end of the lease agreement (subclause 2, clause 1, article 223 of the Tax Code of the Russian Federation). A similar point of view was expressed in the letter of the Ministry of Finance of Russia dated November 18, 2005 No. 03-05-01-04 / 363.

Insurance premiums. By general rule do not charge contributions for compulsory pension (social, medical) insurance from the amount of rent. This is explained by the fact that payments under civil law contracts related to the transfer of property for use (in this case car) are not recognized as an object of taxation of insurance premiums.

This procedure follows from the provisions of Part 3 of Article 7 of the Law of July 24, 2009 No. 212-FZ, Articles 606, 642 of the Civil Code of the Russian Federation and is confirmed in the letter of the Ministry of Health and Social Development of Russia of March 12, 2010 No. 550-19.

If an organization has concluded a car rental agreement with a crew with an employee, such an agreement can be regarded as mixed, that is, it contains elements of two types of agreements (rent and services) (clause 3, article 421, articles 606, 779 of the Civil Code of the Russian Federation). Tax payments under mixed contracts with insurance premiums only in part of the remuneration related to the work performed (services rendered).

Payments under a contract of sale or lease are not subject to insurance premiums. This follows from Part 1 of Article 7 of the Law of July 24, 2009 No. 212-FZ.

Example

In January 2015, the organization entered into an agreement with Kondratiev A.S. for renting a car with a crew. The term of the contract is from January 30 to February 10, 2015.

Under the contract, the cost of driver services (Kondratiev) is 15,000 rubles, car rental - 5,000 rubles.

In February, the accountant accrued insurance premiums only for the cost of driver services.

Car rental is a service for the transfer of property for use and therefore is not subject to contributions.

For payments to Kondratiev in February (15,000 rubles), the accountant accrued insurance premiums in this amount.

- in the FIU - in the amount of 3300 rubles. (15,000 rubles × 22%);

- in FFOMS - in the amount of 765 rubles. (15,000 rubles × 5.1%).

- in - in the amount of 435 rubles. (15,000 rubles × 2.9%).

Situation: how to calculate contributions for compulsory pension (social, medical) insurance if the cost of work performed (services rendered) is not allocated as a separate amount in a mixed contract

For payments under mixed contracts, in which the cost of work performed (services rendered) is not allocated as a separate amount, contributions will have to be accrued for the entire amount under the contract. The fact is that organizations do not have the right to determine the basis for calculating insurance premiums by calculation. Only controlling agencies can determine the base in this way (clause 4, part 1, article 29 of the Law of July 24, 2009 No. 212-FZ).

If in the mixed contract the cost of the work performed (services rendered) is not allocated as a separate amount, sign an additional agreement with the contractor. In it, specify separately the cost of work (services) subject to insurance premiums, and the cost of other payments under the contract that are not taken into account when calculating premiums.

Based additional agreement accrue insurance premiums only on payments related to work performed (services rendered).

Situation: is it necessary to accrue contributions for mandatory pension (social, medical) insurance if the organization pays for repairs, maintenance and other expenses associated with the operation of a car rented from an employee (without a crew). The organization applies the general system of taxation

No no need.

Expenses under civil law contracts related to the transfer of property for use (in this case, a car) are not subject to insurance premiums (parts 1 and 3, article 7, subparagraph “g”, paragraph 2, part 1, article 9 of the Law dated July 24, 2009 No. 212-FZ). Such contracts, in particular, include the lease of a vehicle without a crew (Article 642 of the Civil Code of the Russian Federation).

Consequently, mandatory pension (social, medical) insurance contributions do not need to be charged either from the amount of the rent or from the costs of operating the car.

Accident and occupational health insurance premiums do not need to be added to the rental amount. If a car rental agreement with a crew is concluded, then the driver will have to pay contributions from the amount of remuneration. But this should be done only if the payment of contributions is provided for by the contract.

This procedure is established in Part 1 of Article 5 of the Law of July 24, 1998 No. 125-FZ.

income tax. When calculating income tax, the costs associated with renting an employee's car can be taken into account in the amount of actual costs (subclause 10, clause 1, article 264, clause 1, article 252 of the Tax Code of the Russian Federation). In this case, the organization also has the right to consider as part of the expenses:

costs for fuel and lubricants (subclause 2, clause 1, article 253 of the Tax Code of the Russian Federation);
insurance payments, if the responsibility for insurance is assigned to the tenant (subclause 1, clause 1, article 263 of the Tax Code of the Russian Federation, article 646 of the Civil Code of the Russian Federation).

The controlling authorities adhere to a similar point of view (letters of the Ministry of Finance of Russia dated February 13, 2007 No. 03-03-06 / 1/81, dated November 29, 2006 No. 03-03-04 / 1/806, May 19, 2006 No. 28-11/43420).

VAT. Renting an employee's personal car to an organization is not subject to VAT. This follows from the provisions of Article 143 of the Tax Code of the Russian Federation and is confirmed by the letter of the Ministry of Finance of Russia dated February 10, 2004 No. 04-04-06 / 21.

Current and overhaul under a lease agreement for a vehicle with a crew, the lessor is obliged to bear it (Article 634 of the Civil Code of the Russian Federation). Therefore, if the rental agreement for a vehicle with a crew contains a condition for paying for repairs by the tenant, it may be declared invalid by the court due to nullity (Articles 168, 180 of the Civil Code of the Russian Federation, Resolution of the Federal Antimonopoly Service of the Moscow District dated January 20, 2009 No. KG-A40 / 12869 -08). Any interested party can demand the application of the consequences of invalidity (for example, compensation for the costs incurred by the tenant) through the court: the tenant, etc. (Article 166 of the Civil Code of the Russian Federation).

Transport tax. Vehicle tax must be paid by the person to whom the car is registered. This is determined by Article 357 of the Tax Code of the Russian Federation.

A car rented from an employee is registered in his name. Therefore, the tenant organization does not have to pay transport tax. This is the responsibility of the employee-lessor. And it does not matter that in fact he does not use a car.

Situation: is it possible in the contract to assign the obligation to pay transport tax to the tenant. The organization rents a car from an employee and applies the general taxation system

No you can not.

The landlord must pay transport tax(Article 45 of the Tax Code of the Russian Federation). Responsibilities for the temporary owner do not pass (clause 40 methodological recommendations, approved by order of the Ministry of Taxes of Russia dated April 9, 2003 No. BG-3-21 / 177). Therefore, the execution of a power of attorney in the name of the organization will not give anything.

The only way to reimburse the expenses of the employee (lessor) is to establish in the contract such a fee that would include the amount of transport tax.

Then, in fact, the tax will be paid at the expense of the organization (tenant), and the entire amount of the rent can be included in the expenses of the organization.

Property tax. The rented car is not the property of the organization. So, on this basis, you do not need to pay property tax. But even if the company buys the car, there is no need to calculate tax on its value. After all, from January 1, 2013, all movable fixed assets are not subject to property tax (subclause 8, clause 4, article 374 of the Tax Code of the Russian Federation). That is, including cars.

Example

In January JSC “Production Company “Master”” (the lessee) entered into a lease agreement for a vehicle without a crew with the foreman Volkov VK (lessor). The term of the contract is from February 1 to July 31, 2015.

The rental object is a car. It is rented to deliver products to the organization's warehouse. The cost of the car is 215,000 rubles. The monthly rent for the car is 14,000 rubles.

Profit tax "Master" pays monthly.

The amount of rent is monthly included in the tax base for personal income tax during the term of the contract. Standard deductions for personal income tax Volkov are not provided.

Contributions for compulsory pension (social, medical) insurance and insurance against accidents and occupational diseases are not charged from the amount of rent.

The accountant made such entries in the accounting.

In January:

DEBIT 001

- 215,000 rubles. - a car received for rent was accepted for off-balance accounting (on the basis of an act of acceptance and transfer of the vehicle).

Monthly from February to July inclusive:

DEBIT 25 CREDIT 76

- 14,000 rubles. – deducted the fee for renting an employee’s personal car;

DEBIT 76 CREDIT 68 sub-account "Calculations for personal income tax"

- 1820 rubles. (14,000 rubles × 13%) - personal income tax withheld;

DEBIT 76 CREDIT 50

- 12 180 rubles. (14,000 - 1820) - paid for the rental of an employee's personal car.

When calculating income tax, the Master's accountant reduces the tax base by 14,000 rubles on a monthly basis during the period when a car is rented from an employee.

Simplified. tax base simplified organizations that pay income tax do not reduce rental payments.

Simplified organizations that pay a single tax on the difference between income and expenses can include in the costs that reduce the tax base:

the amount of rent (subclause 4, clause 1, article 346.16 of the Tax Code of the Russian Federation);
expenses for fuel and lubricants and other expenses associated with the operation of a rented car (subclause 12 clause 1 article 346.16 of the Tax Code of the Russian Federation).

Costs can only be recognized after actual payment (clause 2, article 346.17 of the Tax Code of the Russian Federation).

All expenses must be documented (clause 2 of article 346.16, clause 1 of article 252 of the Tax Code of the Russian Federation, letter of the Ministry of Finance of Russia dated February 1, 2006 No. 03-11-04 / 2/24).

Example

Alfa LLC applies a simplified system and pays a single tax at a rate of 15 percent.

In January, the organization concluded a lease agreement for a vehicle without a crew with the driver Yu. I. Kolesov. The term of the contract is one year. The rental object is a car. The monthly rent for the car under the contract is 12,300 rubles.

The entire amount of payments accrued to Kolesov under a lease agreement is monthly included in the tax base for personal income tax. Standard tax deductions are not provided to him.

The monthly amount of personal income tax from Kolesov's income will be:

12 300 rub. × 13% = 1599 rubles.

Contributions for compulsory pension (social, medical) insurance and insurance against accidents and occupational diseases are not charged from the amount of rent. When calculating a single tax, an accountant monthly reduces taxable income by the amount of expenses associated with car rental, in the total amount of 12,300 rubles.

UTII The tax base of organizations paying UTII is not reduced by the costs associated with renting a car from an employee. This is explained by the fact that UTII is calculated on the basis of imputed income (clauses 1 and 2 of article 346.29 of the Tax Code of the Russian Federation). And it does not depend on the company's expenses.

General system + UTII. Expenses associated with the rental and operation of an employee's leased car should be accounted for in accordance with the rules of the tax regime applicable to the activity in which the employee is engaged.

An organization can simultaneously use a rented car in activities subject to UTII and activities on the general taxation system. In this case, the costs associated with renting and operating a rented car must be distributed. This procedure is established by paragraph 9 of Article 274 and paragraph 7 of Article 346.26 of the Tax Code of the Russian Federation.

Question:

An organization under a vehicle lease agreement without a crew rents a car from its employee. It is entrusted to the same employee to manage it, which he does, during the day performing trips in the interests of the organization. This is confirmed by the waybill data. Are payments under such an agreement subject to insurance premiums?

Answer:

In the activities of business entities, it often happens that their employees, who are in certain positions and periodically travel on behalf of these entities, use own cars i.e. personal property. In accordance with Art. 188 of the Labor Code of the Russian Federation, they have the right to claim reimbursement of expenses related to the use, depreciation (depreciation) of this property.

However, the state sets a limit on the amount of such compensation. Formally, you can compensate for the named costs in full, and they, being compensatory, will not be subject to personal income tax and insurance premiums. But for income tax expenses, a single tax on the simplified taxation system or unified agricultural tax, such costs can be attributed in a very small amount.

The corresponding limits are indicated in the Decree of the Government of the Russian Federation of February 8, 2002 No. 92:

The amounts of these compensations are, of course, ridiculous and far from reflecting real costs an employee using his car for the benefit of the organization. Therefore, business entities use a different method that allows them to compensate for expenses in full, which can be fully attributed to expenses for tax purposes. For this, a (TC) is concluded with the employee without a crew.

How is a vehicle rental agreement usually drawn up?

In accordance with paragraphs. 10 p. 1 art. 264 of the Tax Code of the Russian Federation, lease payments for leased property are included in other expenses associated with production and sale, without limitation.

Why do business entities prefer to conclude a lease agreement for a vehicle without a crew? This agreement implies the provision of the vehicle for temporary possession and use without the provision of services for its management and its technical operation (Article 642 of the Civil Code of the Russian Federation). This is its difference from the rental agreement for a vehicle with a crew (time charter), according to which the lessor provides the lessee with a vehicle for temporary possession and use for a fee and provides services for its management and technical operation on its own (Article 632 of the Civil Code of the Russian Federation) .

That is, if the landlord is an individual, in the second case, the contract implies the provision of services by this person to the landlord, as a result of which an object of taxation of insurance premiums arises.

The contract for renting a vehicle without a crew does not in itself require the lessor to provide any services, therefore there is no basis for taxing insurance premiums.

Why did this design become unsafe?

But in practice, this agreement can still be considered as an agreement with elements of the provision of services - just in the event that, according to this agreement, it is the employee-lessor who uses the vehicle. And the taxpayer-tenant may be forced to pay insurance premiums from the amounts of payments under this agreement. It is significant that this is the position of the RF Armed Forces. This can be seen from his Definition of October 30, 2017 No. 308-KG17-15395.

It considers the period until 01/01/2017, when they were accrued in accordance with the Federal Law of 07/24/2009 No. 212-FZ "On insurance premiums to the Pension Fund Russian Federation, Social Insurance Fund of the Russian Federation, Federal Compulsory Medical Insurance Fund.

Of course, from the indicated date, insurance premiums are calculated according to the rules of Ch. 34 of the Tax Code of the Russian Federation, but it must be admitted that the rules used by the arbitrators in this case are similar to the provisions of the Tax Code of the Russian Federation. In addition, it should be borne in mind that, according to Federal Law No. 250-FZ of July 3, 2016, the PFR authorities retained the right to conduct checks on the correctness of calculating insurance premiums for periods up to January 1, 2017, and if the payer of insurance premiums had such an agreement at that time, the risk contributions are significant.

In this ruling of the Supreme Court of the Russian Federation, the conclusions of the lower courts are supported, and they boil down to the following.

In the Decree of the AC SKO dated 06.27.2017 No. F08-3727 / 2017 in case No. A53-27263 / 2016, it is noted that the employee (he is also the head of the organization) concluded two vehicle lease agreements with the organization without a crew (each - for a separate car owned by employee), it was he who used these vehicles for official purposes. The judges pointed out that, in relation to a vehicle lease agreement without a crew, the lessee manages the leased vehicle and its operation, both commercial and technical, on its own (Article 645 of the Civil Code of the Russian Federation).

In contrast, under a lease (temporary charter) agreement for a vehicle with a crew, the lessor provides the lessee with the vehicle for a fee for temporary possession and use and provides services for its management and technical operation on its own (Article 632 of the Civil Code of the Russian Federation).

With regard to the considered lease agreements, it was not revealed that their participants established separately the cost of rent for the use of property and payment for the volume of services rendered.

The employee-lessor personally drove the cars that he provided for rent. In this regard, the organization referred to the fact that he had a traveling nature of work, and the position of a driver was not provided for in the staffing table. But the judges came to the conclusion that the lessor actually performed the services of driving a vehicle. They supported the arguments of officials: a cumulative analysis of the conditions on the rights and obligations of the parties to the disputed contracts, as well as the documents submitted during the verification (waybills, monthly acts of services rendered in connection with car rental, OSAGO policy) indicates the presence in them of signs of vehicle rental agreements with the crew. In all presented waybills for the period under review, an employee-lessor was indicated as a driver. The OSAGO policy reflects that the vehicle is concluded by the insured in relation to a car used for personal purposes (and not for the purposes of rental, short-term lease). According to the policy, the only motor vehicle the person is the same employee, that is, no one else had the right to drive the vehicle.

The arbitrators came to the conclusion that payments under lease agreements made in favor of this employee are subject to the calculation of insurance premiums on the basis of Part 2 of Art. 7 of Federal Law No. 212-FZ (a rule similar to paragraph 2 of Article 420 of the Tax Code of the Russian Federation).

That is, in this case, the organization, being the payer of insurance premiums, actually entered into a vehicle rental agreement with a crew with an individual, whose services were paid for legal entity(the vehicle was owned and operated by one individual).

It is important that the Armed Forces of the Russian Federation took a similar position. And with a high degree of probability, it will be taken into account by the control authorities (funds) during inspections of periods before 01/01/2017, as well as tax authorities, referring to periods after this date.

How to proceed now?

So in similar situation(when the vehicle rented to the organization is driven by the owner of this property) it is more expedient to conclude a vehicle lease agreement with the crew, which, admittedly, will reflect the actual relationship between the lessee and the lessor. At the same time, it is important to show separately the amounts of rent for the vehicle and services for managing it directly in the contract.

It should be noted that in the considered case No. A53-27263 / 2016, the organization nevertheless admitted that the contract, in fact, is a vehicle rental contract with a crew, and proposed to impose insurance premiums on only a part of the amount provided for by each of the contracts. But since this part was not indicated in the contracts themselves, the judges decided that the entire amount of the contract should be subject to insurance premiums.

Although there is a Resolution of the AC VBO dated 01.22.2016 No. F01-5656 / 2015 in case No. A43-8503 / 2015, in which, in the absence of the specified division in the vehicle rental agreement with the crew, a decision was made in favor of the contributor. Since there is no allocated cost of services in the total cost of the contract, then there is no basis for taxing insurance premiums - this is how the arbitrators judged. And in the Decree of AS ZSO dated 06.02.2017 No. F04-7008 / 2017 in case No. A27-15074 / 2016 it is said: the procedure for calculating insurance premiums is not established if the lease agreement provides for a single price, insurance premiums are calculated from full price contracts. The Civil Code of the Russian Federation does not provide for the division of rent into components when concluding such agreements (Resolution of the FAS PO dated January 15, 2013 in case No. A65-16395 / 2012).

However, in the light of what was said in the Ruling of the Supreme Court of the Russian Federation of October 30, 2017 No. 308-KG17-15395, it becomes risky for payers of insurance premiums to continue to avoid such a division. The position of the arbitration courts may change.

However, the supreme judges have not decided anything about what should be the size of these components relative to each other, and they have no right to do so. Therefore, the lessor and the lessee decide for themselves how much to indicate in the contract as a fee for driving the vehicle.

Vehicle rental agreement

The vehicle rental agreement usually specifies:

make and model of the car, VIN, mileage;
lease term (beginning and end);
rights and obligations of the parties;
the amount, terms and procedure for paying the rent;
the procedure for transferring the car (place of transfer and place of return), the procedure and terms of payment;
presence or absence of collateral;
the responsibility of the parties;
grounds and procedure for termination of the contract;
addresses, details of the parties.

There are 2 types of vehicle lease agreements: with a crew and without a crew.

Renting a car without a crew from an individual

The conditions for the transfer of a car without the services of a crew are specified in Art. 642-649 of the Civil Code. In accordance with the terms of the contract for renting a car without a crew from an individual, the lessor receives a fee from the lessee, from which the legal entity renting the car must withhold personal income tax.

A similar opinion that insurance premiums are not withheld from the rent for a car from an individual lessor was expressed in the letter of the Ministry of Health dated 12.03.2010 No. 550-19.

Car rental with driver

If these 2 amounts are not divided in the contract, but accruals are made from an amount smaller than the rent stipulated by the contract, then during the check, with a high degree of probability, additional insurance premiums will be charged.

As for what insurance payments are charged at the conclusion of such an agreement, everything is quite simple here. So, from the income of the lessor, who also provides services for driving a vehicle and monitors its technical condition, contributions to the OPS and OMS will be mandatory.

Car rental accounting entries

A legal entity tenant will need to display the operation of renting a car with a crew in accounting. For this, the following wiring is useful:

Dt 26 Kt 76 - car rental costs;
Dt 26 Kt 69 (sub-account of settlements for the OPS) - accrual of contributions to the OPS from the amount of payment for car management and maintenance services;
Dt 26 Kt 69 (sub-account of settlements for compulsory medical insurance) - accrual of contributions for compulsory medical insurance from the amount of payment for car management and maintenance services;
Dt 76 Kt 68 (subaccount of personal income tax settlements) - personal income tax withheld from the total amount of the fee for renting a car with a crew;
Dt 76 Kt 51 - payment was made to the lessor under the lease agreement minus personal income tax;
Dt 69 (sub-account for settlements under the OPS) Kt 51 - contributions to the OPS were transferred;
Dt 69 (sub-account of settlements for compulsory medical insurance) Kt 51 - contributions to compulsory medical insurance were transferred;
Dt 68 (subaccount for personal income tax settlements) Kt51 - personal income tax paid.

How to avoid paying insurance premiums?

At the same time, an important condition is the documentary justification of the costs incurred, because the amount of compensation is not subject to personal income tax, and contributions are not withheld from it (letters of the Ministry of Finance of December 31, 2010 No. 03-04-06 / 6-327, the Ministry of Labor of July 25, 2014 No. 17-3 /B-347), so the fiscal authorities pay special attention to such cases when conducting inspections.

Vehicle insurance

For information on the extent to which car insurance costs will be taken into expenses, read the article. "Standards provided for by the Tax Code of the Russian Federation" .

Results

Accrual of insurance premiums under a vehicle lease agreement without a crew is not carried out, because there is no object of taxation of contributions for compulsory insurance.

As for the payment of insurance payments to the insurance company (OSAGO - mandatory, CASCO - optional), then by default these payments are made by the lessor. However, the contract can provide for the payment of such payments by the tenant, if this does not contradict the law.