According to Art. 256 of the Tax Code of the Russian Federation capital investments in leased fixed assets in the form inseparable improvements produced by the lessee with the consent of the lessor are recognized as depreciable property.
At the same time, in accordance with paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, capital investments, the cost of which is reimbursed to the lessee by the lessor, are depreciated by the lessor; Capital investments made by the lessee with the consent of the lessor that are not recoverable by the lessor are depreciated by the lessee over the term of the lease.
Depreciation is charged by the tenant from the 1st day of the month following the month in which these capital investments were put into operation, until the end of the lease agreement. In this case, the depreciation rate is calculated taking into account the period beneficial use determined for leased items of property, plant and equipment in accordance with the Classification of property, plant and equipment.
At the end of the lease term, the tenant must stop accruing depreciation on non-separable improvements. The under-depreciated part of the capital investment is transferred to the lessor. This transfer is regarded as a gratuitous transfer of property (works, services, property rights). Therefore, the residual value of the improvements, as well as the costs associated with their transfer, do not reduce the income tax base of the tenant.
After the end of the lease agreement for premises, the under-depreciated part of capital investments in the form of inseparable improvements (not reimbursed by the lessor) is attributed by the tenant to expenses that are not taken into account for the purposes of taxation of corporate profits (Letter of the Ministry of Finance of Russia dated 05.02.2008 N 03-03-06/2/12).
The lessor has capital investments in the form of inseparable improvements to the leased property made by the lessee, in determining tax base are not taken into account as income (clause 32, clause 1, article 251 of the Tax Code of the Russian Federation).
Attention! Important information! Only those inseparable improvements to the leased property that are of a capital nature are depreciated, i.e. associated with the reconstruction, modernization, technical re-equipment of property.
If expenses are incurred for the purpose of current maintenance of fixed assets in working condition, then such expenses are taken into account as a lump sum as part of other expenses as repair expenses in accordance with Art. 260 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated March 7, 2008 N 03-03-06 / 1/159).
So, for example, a lease agreement with a lessor may provide that the organization has the right to carry out repair work on the premises rented as an office at its own expense with the consent of the lessor for its activities. The organization completed the finishing of floors, walls, ceilings, dismantled and replaced doors and windows, installed glass partitions, an uninterruptible power supply, ventilation, and cable networks.
Which of said expenses organizations are accounted for as expenses for the repair of leased premises, and which ones as capital investments in the form of inseparable improvements in the object of leased fixed assets?
The Ministry of Finance of Russia, in Letter No. 03-03-06/2/191 dated October 16, 2007, replied that the tenant must independently determine which expenses are expenses for the repair of the leased premises, and which are capital investments in the form of inseparable improvements to the leased fixed assets, based on the cost of inseparable improvements, the terms of the contract, the estimated cost of conducting repair work etc.
The above procedure for calculating depreciation for inseparable improvements to leased property is applied starting from January 1, 2006. Accordingly, the tenant’s capital investments in leased property in the form of inseparable improvements made before January 1, 2006 are not subject to depreciation for income tax purposes (Letter of the Ministry of Finance of Russia dated November 24, 2005 N 03-03-04/2/120).
Example 1.11. Since January 1, 2004, the organization entered into a lease agreement for premises on the first floor of the building for a period of 5 years. In March 2006, with the consent of the landlord, the tenant re-planned the premises at his own expense. The work was completed in April 2006. The total cost of inseparable improvements amounted to 100,000 rubles.
The building in which the first floor is rented is part of the eighth depreciation group(over 20 to 25 years inclusive). The lessee has set the useful life of the capital investments made at 20 years and 10 months.
respectively in the average number of employees (labor costs) and residual value depreciable property, determined in accordance with paragraph 1 of Art. 257 of the Tax Code of the Russian Federation, in general for the taxpayer.
Attention! A controversial (difficult) question! For the purpose of calculating income tax, in calculating the share of profit attributable to separate divisions, is the residual value of capital investments in fixed assets leased by a separate division in the form of inseparable improvements made by a separate division with the consent of the lessor, the cost of which is not reimbursed by the lessor, included?
Considering that capital investments in the form of inseparable improvements in leased property are depreciated for profit tax purposes, then for the period of the lease agreement, according to the Russian Ministry of Finance, the amount of capital investments is included in the calculation of the share of the residual value of depreciable property when determining the share of profit attributable to a separate subdivision (Letter dated December 10, 2007 N 03-03-06 / 2/221). See p. 283.
Depreciable property will include capital investments in leased property in the form of inseparable improvements made by the tenant with the consent of the lessor (clause 1, article 256 of the Tax Code of the Russian Federation). Capital investment expenses will be recognized by depreciation (clause 1, article 258 of the Tax Code of the Russian Federation):
A. if the cost of capital investments is reimbursed to the lessee by the lessor, capital investments are depreciated from the lessor in accordance with the generally established procedure;
b. if the lessor does not reimburse the lessee for the cost of capital investments, they are depreciated from the lessee during the term of the lease based on the depreciation amounts calculated taking into account the useful life in accordance with the Classification of fixed assets, approved. Government of the Russian Federation.
At the same time, for the second case, when the lessor does not reimburse the lessee for the cost of capital investments, the following situation is possible - the useful life of the leased object is longer than the term of the lease agreement. Does this mean that capital investments in such facilities are not fully depreciated? The Ministry of Finance of the Russian Federation in letters dated December 30, 2005 N 03-03-04 / 3/21, dated March 15, 2006 N 03-03-04 / 1/233 notes that, indeed, in this case, part of the cost of the inseparable improvement will not be depreciated, that is, the lessee entity will not be able to recognize part of the cost of the separable improvements made. At the end of the term of the lease agreement, the tenant must stop accruing depreciation on the inseparable improvements made to the leased property. However, if the lease agreement is extended, the tenant organization will be able to continue accruing depreciation (Letter of the Ministry of Finance of Russia dated March 15, 2006 N 03-03-04 / 1/233). See about this in the review "New documents for an accountant", issue dated 04/06/2006.
Another question that arises in connection with this innovation is whether the tenant organization has the right to apply the non-linear depreciation method for capital investments in leased property belonging to the eighth to tenth depreciation groups? The Ministry of Finance of Russia, in a letter dated 10.05.2006 N 03-03-04 / 1/441, indicates that depreciation can be charged on these capital investments only using the straight-line method. This is justified by the fact that, according to paragraph 3 of Art. 259 of the Tax Code of the Russian Federation to buildings, structures and transmission devices included in the eighth - tenth depreciation groups, only the linear method of depreciation is applied.
A closer examination of the issue reveals that this issue can be looked at in different ways.
On the one hand, by general rules, depreciable property is distributed into depreciation groups in accordance with the terms of its useful life (clause 1, article 258 of the Tax Code of the Russian Federation). The useful life is determined by the taxpayer independently on the date of commissioning of this depreciable property in accordance with the provisions of Art. 258 and taking into account the classification of fixed assets approved by Decree of the Government of the Russian Federation of 01.01.2002 N 1.
Abs. 4 - 6 p. 1 art. 258 of the Tax Code of the Russian Federation provides that capital investments in leased fixed assets are depreciated in the manner prescribed by Chapter 25 of the Tax Code of the Russian Federation and Decree of the Government of the Russian Federation of 01.01.2002 N 1.
Moreover, in paragraph 6 of paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, it is established that capital investments made by the lessee with the consent of the lessor, the cost of which is not reimbursed by the lessor, are depreciated by the lessee during the term of the lease agreement based on the depreciation amounts calculated taking into account the useful life determined for leased fixed assets in accordance with The classification of fixed assets approved by Decree of the Government of the Russian Federation of 01.01.2002 N 1. Accordingly, since these investments are classified and depreciated as the objects themselves in which investments are made, then paragraph 3 of Art. 259 of the Tax Code of the Russian Federation. This point of view is confirmed by the Ministry of Finance of Russia in the mentioned letter.
At the same time, paragraph 3 of Art. 259 of the Tax Code of the Russian Federation establishes restrictions on the use of the non-linear method only for buildings, structures and transmission devices included in the eighth - tenth depreciation groups. No restrictions that would not allow the use of a non-linear depreciation method for capital investments in this property, in Ch. 25 of the Tax Code of the Russian Federation is not contained, and according to paragraph 7 of Art. 3 of the Tax Code of the Russian Federation, all irremovable doubts, contradictions and ambiguities of tax legislation must be interpreted in favor of the taxpayer. Therefore, for capital investments, any depreciation method can be applied - linear or non-linear. If an organization uses a non-linear depreciation method for capital investments in leased property belonging to the eighth to tenth depreciation groups, it should be noted that this approach differs from the point of view of the Ministry of Finance of Russia and its application may lead to disputes with the tax authorities. See about it in the release of the review "New documents for an accountant" dated 06/09/2006.
The moment of the beginning of depreciation for capital investments in objects of leased fixed assets is established by paragraph 2 of Art. 259 of the Tax Code of the Russian Federation:
A. the lessor begins to charge depreciation from the 1st day of the month following the month in which capital investments are put into operation (but not earlier than the month in which the lessor reimbursed the cost of capital investments);
b. the tenant begins to charge depreciation from the 1st day of the month following the month in which the capital investments were put into operation.
Since, after the end of the lease agreement, inseparable improvements are transferred to the landlord and become his property, in Art. 251 of the Tax Code of the Russian Federation, a new paragraph 32 was included, according to which the income of the lessor in the form of capital investments in the form of inseparable improvements to the leased property made by the lessee is not taken into account for income tax purposes.
Prior to these amendments, there was a problem with recognizing the costs of making permanent improvements to depreciable property if the costs were not recovered by the lessor. The tax and financial authorities, in their explanations, indicated that the costs of the tenant for the creation of inseparable improvements in the composition of depreciable property are not taken into account, since this is not provided for in Ch. 25 of the Tax Code of the Russian Federation, and since the tenant will ultimately transfer the inseparable improvements along with the leased object to the lessor free of charge, then, according to the rules of paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, such expenses cannot be taken into account for income tax purposes. This position is stated in the letter of the Ministry of Finance of the Russian Federation dated September 15, 2005 N 03-03-04 / 2/62.
Based on a different position, these expenses could be recognized for tax purposes as other expenses related to production and sale (clause 49, clause 1, article 264 of the Tax Code of the Russian Federation); This position was supported by judicial practice(Federal Arbitration Court ruling Northwestern District dated January 31, 2005 N A56-11741 / 04).
From January 1, 2006 this problem solved, and expenses can be recognized by depreciation. It should be noted that expenses are depreciated only over the period of the lease.
The tenant can apply these provisions both under contracts concluded from January 1, 2006, and under contracts concluded in 2005 and earlier, by determining the depreciation rate and starting in 2006 to amortize these capital improvements, because the criterion for applying the new rules is the introduction in the operation of capital investments in 2006, which must be confirmed by the relevant act.
Organizations should clarify the terms of the current lease agreement or develop a draft new agreement. According to paragraph 2 of Art. 623 of the Civil Code of the Russian Federation, in the event that the lessee has made improvements to the leased property at his own expense and with the consent of the lessor, which are not separable without harm to the property, the lessee has the right after termination of the contract to reimburse the cost of these improvements, unless otherwise provided by the lease agreement. In other words, it is considered that the landlord is obliged to reimburse the tenant for the cost of inseparable improvements, unless otherwise expressly provided by the lease agreement.
Therefore, if the agreement does not establish conditions regarding non-reimbursement of expenses for inseparable improvements by the lessor to the tenant, the expenses must be reimbursed (therefore, the lessor will charge depreciation on capital investments), if the condition for non-reimbursement of expenses is established, the expenses are not reimbursed, capital investments are depreciated from the tenant.
The organization should decide whether or not to include in the contract a condition on non-reimbursement of costs for inseparable improvements, based on which depreciation procedure (by the lessee or the lessor) is more acceptable for it.
Capital investments in leased items of fixed assets are capital investments by the lessee in leased items of fixed assets.
Regulations establish special taxation rules for capital investments in leased objects. Therefore, the term "capital investments in leased fixed assets" (or similar phrases), and used to designate a particular category. The category of property under consideration includes the tenant's expenses for the completion, additional equipment, modernization, reconstruction of fixed assets that are leased (the so-called improvements to the leased property).
The essence of the special taxation rules is that inseparable improvements agreed with the lessor (non-reimbursable by the lessor) can be written off as expenses through depreciation only during the term of the lease. At the end of the lease, the underdepreciated portion of these capital investments cannot be expensed and is lost for tax purposes.
tax code Russian Federation(Chapter 25 "Corporate Income Tax") (TC RF)
Classification of fixed assets included in depreciation groups, approved. Decree of the Government of the Russian Federation of 01.01.2002 N 1
Civil Code of the Russian Federation (Chapter 34 "Rent") (CC RF)
Regulation on accounting "Accounting for fixed assets" PBU 6/01, approved. Order of the Ministry of Finance of the Russian Federation dated March 30, 2001 N 26n (PBU 6)
Guidelines for accounting of fixed assets, approved. Order of the Ministry of Finance of the Russian Federation dated 13.10.2003 N 91n (Guidelines)
A comment
Renting is regulated by Chapter 34 of the Russian Civil Code. Under a lease (property lease) agreement, the landlord (landlord) undertakes to provide the tenant (tenant) with property for a fee for temporary possession and use or for temporary use (Article 606).
For the tenant, the need to improve the leased property often arises in the case of a rental property. Thus, the tenant may wish to re-plan the leased premises for their own purposes or install the systems and equipment necessary for it. Often the landlord himself is not ready to finance such improvements, but is not opposed to such improvements at the expense of the tenant.
If the above costs are recognized as repairs, then they are written off to the expenses of the organization as repair costs (Article 260 of the Tax Code of the Russian Federation). If they are of a capital nature, then such costs are recognized as a special type - capital investments in leased fixed assets.
So, article 623 Civil Code Russia "Leased Property Improvements" provides for the rules:
1. Separable improvements made by the lessee to the leased property shall be his property, unless otherwise provided by the lease agreement.
2. In the event that the lessee has made, at his own expense and with the consent of the lessor, improvements to the leased property that cannot be separated without harm to the property, the lessee shall have the right, after the termination of the contract, to reimburse the cost of these improvements, unless otherwise provided by the lease agreement.
3. The cost of inseparable improvements to the leased property, made by the tenant without the consent of the lessor, shall not be reimbursed, unless otherwise provided by law.
4. Improvements of the leased property, both separable and inseparable, made at the expense of depreciation deductions from this property, shall be the property of the lessor.
Separable leasehold improvements
If the improvements are separable (for example, the tenant has installed equipment that he can remove without damage), then such an improvement is taken into account by the tenant as an object in the usual manner.
The amount of input VAT on separable improvements is accepted by the tenant for deduction in the usual manner.
Inseparable improvements to the leased property
The peculiarity of accounting and taxation of capital investments in leased objects arises if the lessee (and not the lessor) of the property makes the so-called "improvements of the leased property" and these improvements are inseparable (inseparable improvements of the leased property).
Such improvements are recognized by the Tax Code of Russia as - " Depreciable assets are capital investments in leased fixed assets in the form of inseparable improvements made by the tenant with the consent of the lessor, as well as capital investments in fixed assets provided under the contract for gratuitous use in the form of inseparable improvements made by the organization-borrower with the consent of the organization-lender (clause 1 of article 256 of the Tax Code of the Russian Federation) ”.
In practice, the following situations are possible:
1. The tenant makes inseparable improvements to the leased property, without the consent of the landlord
Tenant:
Such expenses are not recognized as depreciable property by the tenant and do not reduce taxable income (Letter of the Ministry of Finance of the Russian Federation of 03.05.2011 No. 03-03-06 / 1/280). This is due to the fact that paragraph 16 of Art. 270 of the Tax Code of the Russian Federation provides that expenses in the form of the value of property transferred free of charge (works, services, property rights) and expenses associated with such a transfer are not recognized as expenses. In this case, the tenant, at the end of the lease agreement, transfers the inseparable improvements free of charge.
The lessee has the right to deduct the amounts of VAT paid to suppliers and contractors on unapproved inseparable improvements to the leased property.
The unresolved issue is whether the lessee should charge VAT on the amount of inseparable improvements (as from the implementation of the results of work transferred to the lessor). This issue is considered in more detail when analyzing the situation for the tenant in the case of agreed improvements (see).
Landlord:
The lessor is not entitled to deduct the amount of VAT on unapproved improvements, even if he subsequently accepts them (for example, according to the act), since he receives the results of the work free of charge.
2. The tenant makes inseparable improvements to the leased property, with the consent of the landlord, but without reimbursement of their cost to the tenant
Tenant:
Capital investments made by the lessee with the consent of the lessor, the cost of which is not reimbursed by the lessor, are depreciated by the lessee during the term of the lease agreement based on the depreciation amounts calculated taking into account, determined for the leased objects or for capital investments in these objects in accordance with the classification (approved by the Decree Government of the Russian Federation of 01.01.2002 N 1) (clause 1 of article 258 of the Tax Code of the Russian Federation).
Example
The lessee has improved the leased property, with the consent of the lessor, which belongs to the 8th depreciation group. During the term of the contract, the lessee has the right to charge depreciation based on the useful life established for the 8th group (over 20 and up to 25 years).
Suppose that the cost of improvements is 200 thousand rubles, and the term of the lease is 2 years. In this case, the tenant will have the right to write off 20 thousand rubles of depreciation for expenses for 2 years of lease (when using linear way), based on a useful life of 20 years and 1 month.
Similar rules are established for improvements to property received under a contract. free use(loans). The loan agreement is essentially a lease without rent(free use of the property).
Depreciation for depreciable property in the form of capital investments in fixed assets begins on the 1st day of the month following the month in which this property was put into operation (clause 3 of article 259.1, clause 6 of article 259.2 of the Tax Code of the Russian Federation).
At the end of the lease, the underdepreciated portion the cost of improvements from the tenant for tax purposes is lost (Letters of the Ministry of Finance of Russia dated 03.08.2012 N 03-03-06 / 1/384, dated 20.10.2009 N 03-03-06/1/677). So, if, under the conditions of the above example, at the end of the lease term, 100 thousand rubles of the amount of expenses for improving the leased property remained unwritten, then this amount is not taken into account by the tenant for income tax purposes.
Thus, investments of a capital nature by the lessee in leased fixed assets are special kind. Their peculiarity is that inseparable improvements agreed with the lessor (non-reimbursable to the lessor) can be written off as expenses through depreciation only during the term of the lease. At the end of the lease, the underdepreciated portion of these capital investments cannot be expensed and is lost for tax purposes.
If the parties at the end of the lease agreement prolong it (for example, additional agreement or by actually continuing to use the property), then the tenant has the right to continue accruing depreciation, since the old contract will continue to be valid (Letter of the Ministry of Finance of the Russian Federation dated 03.05.2011 N 03-03-06 / 2/75). If the parties draw up a new lease agreement, then formally, the old agreement will be completed and the new agreement will begin to operate. Accordingly, a condition will arise on the termination of depreciation (Letter of the Federal Tax Service for Moscow dated August 25, 2010 N 16-15 / [email protected]).
Office complexes under construction usually the landlord and the tenant enter into a preliminary lease agreement non-residential premises, under the terms of which after the completion of construction and commissioning of the building, but until the moment state registration of ownership of the building, the parties are required to conclude a short-term lease agreement for non-residential premises, and after state registration of ownership - long-term contract rent. During the period of a short-term lease agreement, improvements to the leased property are often carried out (since it is usually during this period that large-scale work is carried out to prepare the premises for use).
According to the Ministry of Finance of the Russian Federation, expressed in Letter No. 03-03-06/1/601 dated November 21, 2012, the cost of capital investments made by the future tenant under preliminary contract leases with the consent of the lessor, the cost of which is not reimbursed by the lessor, may be taken into account by the future lessee for tax purposes, starting from the moment of conclusion and during the term of the lease agreement. Upon termination of the lease agreement, the tenant shall cease accruing depreciation on said property. At the same time, the Code does not provide for the possibility to continue accruing depreciation of capital investments in leased fixed assets in the event that a new lease agreement for these fixed assets is concluded.
It should be noted that if the lease term is less than a year, then the tenant is still entitled to charge depreciation(Letters of the Ministry of Finance of Russia dated 03.08.2012 N 03-03-06/1/384, dated 04.04.2012 N 03-03-06/1/179). The fact is that in practice they often conclude a lease agreement for a period of 11 months (with subsequent prolongation) in order to avoid state registration of the agreement. The crux of the matter is that assets with a useful life of more than 12 months are recognized as fixed assets. But, in the above letters, the Ministry of Finance of the Russian Federation does not question the right of the tenant to charge depreciation in this case. I agree with the position of the Ministry of Finance, since the useful life is not related to the lease term.
The tenant has the right to deduct the amount of input VAT on the improvements made.
The authorities insist on calculating VAT in this case (Letter of the Ministry of Finance of the Russian Federation of December 31, 2009 N 03-07-11 / 341), referring to the fact that by transferring inseparable improvements made at their own expense to the lessor, the tenant actually transfers the ownership of the inseparable improvements free of charge . As you know, the gratuitous transfer of ownership of property is recognized as a sale and is subject to VAT.
This position is supported by some court decisions (for example, the Decree of the FAS of the Volga District of June 26, 2012 in case N A65-12909 / 2011, the Decree of the FAS of the Moscow District of June 25, 2009 N KA-A40 / 4798-09 in case N A40-67444 / 08-80-265)
At the same time, there are also contrary court decisions. For example, in the Decree of the Federal Antimonopoly Service of the North-Western District of May 20, 2010 in case N A56-66260 / 2009, it is noted - "Regarding inseparable improvements, the legislator has provided for another legal regime- reimbursement by the landlord to the tenant of the costs of these improvements *. At the same time, the tenant does not have the right of ownership to inseparable improvements, since the leased premises with inseparable improvements is a single whole - an indivisible thing that has an owner - the lessor.
* refers to Part 2 of Art. 623 of the Civil Code of the Russian Federation - "In the case when the lessee has made, at his own expense and with the consent of the lessor, improvements to the leased property that are not separable without harm to the property, the lessee has the right, after the termination of the contract, to reimburse the cost of these improvements, unless otherwise provided by the lease contract."
The transfer of inseparable improvements may occur if they are transferred under the act from the tenant to the landlord. But even if the parties do not issue a special act for the transfer of improvements to the lessor, their transfer will occur upon completion of the lease agreement. So, according to the Civil Code of the Russian Federation, at the end of the lease of premises, the tenant must transfer the leased property to the landlord under the act. Such an act will be the basis for the transfer to the lessor of both the property itself and the improvements (unless, of course, the lessor refuses to accept these improvements in writing).
Yes, Art. 655 of the Civil Code of the Russian Federation for the lease of buildings and structures provides that the transfer of a building or structure by the lessor and its acceptance by the tenant is carried out according to the transfer act or other transfer document signed by the parties. Moreover, the evasion of one of the parties from signing such a document is considered as a refusal to fulfill its obligation to transfer (accept) property. The return of the leased property is also carried out according to the act according to the same rules (part 2 of article 655 of the Civil Code of the Russian Federation).
There is also uncertainty about the right apply the depreciation bonus by the tenant. As noted above, capital investments in leased facilities are recognized as specific. So, for example, according to the "usual" use is allowed (one-time write-off of part of the cost of the object for expenses when it is put into operation). But due to the specificity of capital investments in leased objects, the possibility of using them does not yet have a clear answer. The Ministry of Finance of the Russian Federation opposes such a possibility (Letters of October 12, 2011 N 03-03-06/1/663, from 09.02.2009 N 03-03-06/2/18, from 05/24/2007 N 03-03-06/1/302, from 05/22/2007 N 03-03-06/2/82). In favor of the position of the Ministry of Finance and judicial precedent - Resolution of the Ninth Arbitration Court of Appeal dated 01.06.2009 N 09AP-6283/2009-AK N КА-А40/8505-09).
At the same time, there are court precedents in favor of taxpayers on(Resolution of the Federal Antimonopoly Service of the East Siberian District of January 18, 2012 in case N A74-956 / 2011, FAS of the Moscow District in the Decree of 02.02.2011 N КА-А40/15635-10 in case N А40-30630/10-107-156).
The tenant must include in the tax base on property tax capital investments in leased objects from the moment they are included in fixed assets until the moment they are disposed of under a lease agreement. This position was formulated by the Ministry of Finance of the Russian Federation in a letter from the Ministry of Finance of the Russian Federation of October 24, 2008 N 03-05-04-01 / 37 and this position was confirmed by the Supreme Arbitration Court of the Russian Federation (Decision of the Supreme Arbitration Court of the Russian Federation of January 27, 2012 N 16291/11 On the refusal to satisfy the application for invalidating the letter Ministry of Finance of the Russian Federation of October 24, 2008 N 03-05-04-01 / 37).
It should be noted that movable property accepted from January 1, 2013 for accounting as fixed assets is not recognized as an object of taxation by property tax (clause 8, clause 4, article 374 of the Tax Code of the Russian Federation). Leasehold improvements are not, in and of themselves, real estate. In this regard, there are new arguments on this issue in favor of the taxpayer.
Landlord:
Formally, the landlord receives a benefit in the form of a donated improvement to his property (albeit without permission). But such an improvement should not be included in the tax base for income tax, since paragraphs. 32 p. 1 art. 251 of the Tax Code of the Russian Federation provides that taxable income does not include income in the form of capital investments in the form of inseparable improvements to the leased property made by the tenant.
At the same time, the landlord is not entitled to charge depreciation on inseparable improvements received free of charge (Letter of the Ministry of Finance of the Russian Federation dated May 29, 2007 N 03-03-06 / 1/334).
Also, the lessor is not entitled to deduct VAT on the improvements received, since they were received by him free of charge.
3. The lessee makes inseparable improvements to the leased property, with the consent of the lessor and with reimbursement of their cost to the lessee
Tenant:
The lessee defines income as the amount of compensation received from the lessor. Also, the tenant determines the expense as the sum of expenses for the improvements made (the object is not formed on the tenant's balance sheet).
The lessee accepts the amount of input VAT for deduction, and also charges VAT on income received from the lessor.
Landlord:
Capital investments, the cost of which is reimbursed to the lessee by the lessor, are depreciated by the lessor (clause 1, article 258 of the Tax Code of the Russian Federation). Accordingly, the lessor takes into account the object in the amount of expenses for reimbursement of expenses to the tenant (other expenses associated with preparing the object for operation are also possible).
VAT amounts paid to the tenant are deductible.
Accounting for Leasehold Improvements
In accounting, capital investments in leased fixed assets are accounted for as fixed assets (clause 5 of the Accounting Regulation "Accounting for Fixed Assets" PBU 6/01), approved by Order of the Ministry of Finance of the Russian Federation of 30.03.2001 N 26n.
Rule of conduct accounting and financial statements in the Russian Federation, approved. By order of the Ministry of Finance of the Russian Federation dated July 29, 1998 N 34n, it clarifies - “Completed capital investments in leased fixed assets are credited by the lessee organization to their own fixed assets in the amount of actually incurred costs, unless otherwise provided by the lease agreement.” (p. 47).
Based on the above rules, we can conclude:
Separable improvements to the leased property are accounted for in the lessee's accounting records as fixed assets.
Inseparable and reimbursed by the lessor improvements to the leased property are accounted for in the lessor's accounting records as fixed assets.
Improvements to the leased property that are inseparable and non-reimbursable by the lessor are accounted for in the lessee's accounting records as fixed assets until they are transferred to the lessor (according to the act).
It should be noted that there is no accounting rule that such inseparable improvements are amortized over the lease term. Accordingly, the organization determines the useful life of such a fixed asset, depreciates it according to accepted standards. If the lease agreement is terminated, then when transferring the leased property to the lessor, the lessee records the transfer of the fixed asset to the lessor.
Example
The tenant has made agreed inseparable improvements to the leased premises. The amount of expenses is 10 million rubles. The landlord does not reimburse these improvements. After the object was accepted for accounting, the tenant charged monthly depreciation. After 3 years, at the initiative of the tenant, the contract was terminated. By this time, 4 million rubles of depreciation had been accrued.
Historical reference
The rule formulated in paragraph 1 of Art. 258 of the Tax Code of the Russian Federation on depreciation based on from the depreciation amounts calculated taking into account the useful life determined for leased items of fixed assets or for capital investments in these items in accordance with the classification of fixed assets was introduced from January 1, 2010 by Federal Law No. 17).
Until this date (since January 1, 2002), a slightly different rule was in effect - about depreciation based on from the depreciation amounts calculated taking into account the useful life determined for the leased items of fixed assets in accordance with the classification of fixed assets.
In other words, before January 1, 2010, the lessee could apply the useful life only on the basis of that established for the leased property.
After January 1, 2010, the lessee has the right to set the useful life itself, but based on the period established for the relevant category of property.
Example
The tenant leases a building included in the 8th group (useful life over 20 years and up to 25 years). The lessee has made capital inseparable attachments in leased property belonging to the 4th group (over 5 years and up to 7 years).
Until January 1, 2010, the lessee could set the useful life of capital investments in the leased object based on the 8th group ( over 20 years and up to 25 years).
From January 1, 2010, the lessee has the right to set the useful life within the 4th depreciation group (from 5 years and 1 month to 7 years).
It should be borne in mind that only those inseparable improvements to the leased property that are of a capital nature, that is, associated with the reconstruction, modernization, technical re-equipment of the property, are depreciated. If expenses are incurred for the purpose of current maintenance of fixed assets in working order, then such expenses are taken into account at a time as part of other expenses as repair expenses in accordance with the provisions of Article 260 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated August 11, 2017 No. 03-03-06 / 1 / 51578).
Inseparable improvements are those that cannot be removed, dismantled, disassembled without harm to the leased property (Article 623 of the Civil Code of the Russian Federation). For example, the tenant built brick wall in a rented office. In accounting and tax accounting, the tenant reflects such costs as fixed assets (clause 5 of PBU 6/01, clause 1 of article 256 of the Tax Code of the Russian Federation).
Depreciation procedure in accounting and tax accounting
In accounting, it is necessary to charge depreciation for an inseparable improvement based on the term of the lease agreement (clause 20 PBU 6/01).
In tax accounting, a different procedure applies. The tenant has the right to depreciate an inseparable improvement during the term of the lease agreement. At the same time, the monthly depreciation amount is calculated based on the entire service life of the property that the tenant has improved. This period can be determined according to the Classification of Fixed Assets (approved by Decree of the Government of the Russian Federation of January 1, 2002 No. 1). Such a rule is established in paragraph 1 of Article 258 of the Tax Code.
Note that the tenant can charge depreciation for inseparable improvements only during the term of the contract during which these improvements were made (clause 1, article 258 of the Tax Code of the Russian Federation).
Suppose, in the future, the parties entered into a new contract for the lease of the same property. Then the tenant cannot continue accruing depreciation on inseparable improvements, despite the fact that he will continue to use them (see letters of the Ministry of Finance of Russia dated October 8, 2008 No. 03-03-06 / 2/140, dated March 2, 2007 No. 03-03-06/1/143).
Depreciation is charged starting from the 1st day of the month following the month in which capital investments in the form of inseparable improvements were put into operation, until the expiration of the lease agreement. Upon termination of the lease agreement, the tenant shall cease accruing depreciation on said property.
What to do with the underdepreciated part
The tenant's expenses in the form of capital investments in the leased property, which were not taken into account for the purposes of Chapter 25 of the Tax Code of the Russian Federation during the term of the lease agreement (including in the event of its early termination), cannot be reflected as expenses when calculating corporate income tax. This follows from the letters of the Ministry of Finance of Russia dated August 11, 2017 No. 03-03-06/1/51578, dated August 3, 2012 No. 03-03-06/1/384, dated March 21, 2011 No. 03-03- 06/1/158.
In addition, the under-depreciated part of the cost of capital investments is recognized as property transferred to the lessor free of charge. And the value of such property does not reduce taxable income (clause 16, article 270 of the Tax Code of the Russian Federation).
EXAMPLE. DEPRECIATION OF INDIVIDUAL IMPROVEMENTS IN TAX ACCOUNTING
Aktiv LLC rented the building in January. In the same month, with the consent of the landlord, the building was equipped with an escalator. This improvement is inseparable. The costs of the organization amounted to 360,000 rubles. (without VAT).
Inseparable improvements are made with the consent of the landlord, and he does not reimburse this amount. The lease term of the building is 12 months - from January to December inclusive.
The accountant of Aktiv LLC determined that the company could depreciate the escalator from February to December inclusive. The useful life of the escalator is the same as that of the building - 432 months (the tenth depreciation group). Depreciation is calculated using the straight-line method (clause 3, article 259 of the Tax Code of the Russian Federation).
The monthly depreciation rate was 0.2315% (1:432 months × 100%).
The amount of monthly depreciation is 833.4 rubles. (360,000 rubles × 0.2315%).
The amount of depreciation that the tenant can write off for the entire lease period is 9167.4 rubles. (833.4 rubles × 11 months).
The difference between the amount spent on the escalator and the accrued depreciation is 350,832.6 rubles. (360,000 rubles - 9,167.4 rubles) - Aktiv LLC cannot take into account when calculating income tax.
If the lease agreement has expired, and the tenant continues to use the property, and the landlord does not object to this, then, according to the norms of civil law, such an agreement is considered renewed for indefinite term on same conditions. If the lease agreement is prolonged, then the tenant has the right to continue to amortize inseparable improvements and make accruals until one of the parties announces the termination of the lease agreement. After all, it is up to this moment that an agreement concluded for an indefinite period is considered valid (clause 1 of article 258 of the Tax Code of the Russian Federation, clause 2 of article 621, clause 2 of article 610 of the Civil Code of the Russian Federation). This was indicated by the Ministry of Finance of Russia in a letter dated August 11, 2017 No. 03-03-06/1/51578.
The distribution of responsibilities for the maintenance of property during the lease term depends on how the contract is drawn up. By virtue of Art. 616 of the Civil Code of the Russian Federation, the tenant is obliged to produce only Maintenance and the lessor overhaul unless otherwise provided by the contract.
In accordance with the provisions of Art. 623 of the Civil Code of the Russian Federation, inseparable improvements made by the tenant, at the end of the lease agreement, remain the property of the lessor. At the same time, according to paragraph 2 of Art. 623 of the Civil Code of the Russian Federation, in the event that the lessee has made, at his own expense and with the consent of the lessor, improvements to the leased property that are not separable without harm to the property, the lessee has the right after termination of the contract to reimburse the cost of these improvements, unless otherwise provided by the lease agreement.
Attention
Inseparable are improvements that cannot be separated from the rented thing without harm to it.
If the lessor agrees to the production of such improvements, he undertakes to take back the thing in a changed, improved condition. That is, if the landlord initially agreed to the production of inseparable improvements in the object belonging to him, he can no longer refuse them, and also has no right to refuse to reimburse the tenant for the costs incurred by him for the inseparable improvement, except in the case when such a refusal is expressly provided lease agreement. If the contract similar condition not contained, the tenant, after the termination of the lease agreement (see the decision of the Supreme Arbitration Court of the Russian Federation dated May 16, 2008 N 5990/08) has the right to demand from the landlord reimbursement of the costs incurred by him, including by offsetting against the rent (clause 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 29, 2001 N 65, determination of the Supreme Arbitration Court of the Russian Federation dated January 14, 2008 N 17489/07).
According to the Ministry of Finance of Russia, stated in the letter
Inseparable improvements must be transferred to the landlord at the end of the lease term. Termination of the lease agreement involves the procedure for transferring the fixed assets object by the tenant to the landlord (Article 622 of the Civil Code of the Russian Federation). If the landlord does not compensate the capital investment to the tenant, then inseparable improvements are transferred by the tenant free of charge.
When resolving issues of taxation and accounting, it should be borne in mind that only investments in leased property that are capital in nature, that is, associated with the reconstruction, modernization, and technical re-equipment of property, are depreciated. At the same time, the organization independently decides which expenses are repair expenses, and which are capital investments in leased funds (letters of the Ministry of Finance of Russia dated 01/19/2009 N 03-03-07 / 1, dated 11/18/2009 N 03-03-06 / /763 , N 03-03-06/1/762 , , dated 10/20/2009 N 03-03-06/1/677 , dated 03/30/2009 N 03-03-06/1/197 , dated 10/16/2007 N 03-03-06/2/191).
Typical wiring
Property that is not the property of the organization must be accounted for on off-balance accounts in the assessment provided for in the contract, or in the assessment agreed with their owner (clause 18 of the Methodological Guidelines for Accounting Inventory, approved by order of the Ministry of Finance of the Russian Federation dated December 28, 2001 N 119n, paragraph 14 and paragraph 82 of the Guidelines for the accounting of fixed assets, approved by order of the Ministry of Finance of the Russian Federation of October 13, 2003 N 91n).
the cost of inseparable improvements not reimbursed by the lessor is written off to other expenses
Meanwhile, the Ministry of Finance of Russia is of the opinion that the capital investments made by the tenant in the leased object are in any case accounted for by the tenant as part of fixed assets until they are disposed of under the agreement. The financial department draws its conclusion on the basis of clause 5 of PBU 6/01 without reference to the norms of the Guidelines (see letters, and). Moreover, the letters emphasize that the Guidelines are valid in the part that does not contradict PBU 6/01.
So, the capital investments made in leased fixed assets are accounted for by the tenant organization as part of its own fixed assets, if the conditions listed in clause 4 of PBU 6/01 are met (clause 5 of PBU 6/01). The criteria for qualifying objects as fixed assets in accordance with paragraph 4 of PBU 6/01 in relation to inseparable improvements are met in most cases, with the exception of the following situations:
The estimated remaining lease term is no more than 12 months;
Reimbursement and transfer of inseparable improvements by the tenant to the lessor shall be made immediately after the completion of work on the production of inseparable improvements.
The cost of fixed assets is repaid through depreciation (clause 17 PBU 6/01). In this situation, an organization in accounting can set the useful life of inseparable improvements of a leased fixed asset equal to the remaining lease period of fixed assets in accordance with the lease agreement (clause 20 PBU 6/01).
Document flow
All forms of primary accounting documents are determined by the head of the economic entity, and developed by the person who is entrusted with accounting (part 4 of article 9 of the Federal Law of 06.12.2011 N 402-FZ "On Accounting", hereinafter - Law N 402- FZ).
The use of forms of primary accounting documents, which are contained in albums of unified forms, is not provided for by Law N 402-FZ. At the same time, when developing their own forms of primary accounting documents, organizations can use the usual unified forms approved by the State Statistics Committee of Russia as a model.
Primary accounting documents are accepted for accounting if they contain the required details specified in Part 2 of Art. 9 of Law N 402-FZ.
For the object of capital investments in the form of inseparable improvements, the tenant opens a separate inventory card (the form OS-6, approved by the Decree of the State Statistics Committee of Russia dated 01.21.2003 N 7, can be taken as the basis for developing the card). Documentary confirmation of the performance and completion of work will be the order of the head of the organization to carry out improvements and the act of acceptance and delivery of repaired, reconstructed, modernized fixed assets (form N OS-3, approved by the resolution of the State Statistics Committee of Russia dated 01.21. 2003 No. 7).
Taxation
INCOME TAX
Separable improvements for income tax purposes are accounted for as a separate item of fixed assets and depreciated in general order(Clause 1, Article 256 of the Tax Code of the Russian Federation). The cost of improvements with a useful life of less than 12 months or a cost of less than 100,000 rubles. (until January 1, 2016 - less than 40,000 rubles) are included in material expenses (clause 1, article 254 of the Tax Code of the Russian Federation).
The procedure for taxation of inseparable improvements depends on whether such improvements are made with the consent of the landlord or without the consent, and whether they are reimbursed to the tenant.
1. If inseparable improvements are made without the consent of the landlord, then the cost of the inseparable improvements made is not taken into account for tax purposes, the improvements are not subject to depreciation (clause 1 of article 256 of the Tax Code of the Russian Federation, see also letters of the Federal Tax Service of the Russian Federation for Moscow dated March 24, 2006 N 20-12 / 25161, dated March 17. 2006 N 18-11/20791, dated 03/16/2006 N 18-11/1/20791). In case of gratuitous transfer of inseparable improvements to the lessor, their cost is not included in the costs (clause 16 of article 270 of the Tax Code of the Russian Federation),
2. If inseparable improvements are made with the consent of the landlord, but the tenant is not reimbursed, then during the term of the lease their cost is repaid by accruing depreciation (paragraph 1 of article 256, see also letters from the Ministry of Finance of Russia dated 19.01.2009 N 03-03-07 / 1 and). Depreciation is accrued during the term of the lease agreement (sixth paragraph of paragraph 1 of article 258 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated 06.11.2009 N 03-03-06 / 2/215 and dated 05.02.2008 N 03-03-06 / 2 / 12, Federal Tax Service of Russia dated 08.17.2009 N 3-2-13 / 181, Federal Tax Service of Russia for Moscow dated 06/04/2008 N 20-12 / 053638 and dated 03/18/2008 N 20-12 / 025122.1). If the contract is subsequently extended, then the tenant has the right to continue accruing depreciation (letter of the Ministry of Finance of Russia dated 08.10.2008 N 03-03-06 / 2/140).
Depreciation is calculated taking into account the useful life of the leased asset, which is determined in accordance with the Classification of fixed assets approved by Decree of the Government of the Russian Federation of 01.01.2002 N 1, and in the absence of objects in the classification - in accordance with specifications or recommendations of manufacturers (clause 1, clause 6 of article 258 of the Tax Code of the Russian Federation).
The depreciation rate for capital investments by the tenant is calculated based on the useful life determined in accordance with the classification, either for the leased object, or for the capital investments themselves (see also letter of the Ministry of Finance of Russia dated 01.21.2010 N 03-03-06/2/7) .
Upon disposal of inseparable improvements (transfer to the lessor under the act), automatic disposal occurs in tax accounting. Accordingly, depreciation ceases to accrue. The under-depreciated part of the cost of improvements is not taken into account for tax purposes (clause 16, article 270 of the Tax Code of the Russian Federation). See also letters of the Ministry of Finance of Russia dated December 17, 2015 N 03-07-11 / 74085, dated November 10, 2008 N 03-03-06 / 1/620, dated October 08, 2008 N 03-03-06 / 2/140, UFTS Russia for the city of Moscow dated June 28, 2007 N 20-12 / 060972).
Even if a new lease agreement is concluded between the lessor and the tenant for the same object, depreciation on capital investments for profit tax purposes must be terminated under the previous agreement from the 1st day of the month following the month of the expiration of the original lease agreement (see letters Ministry of Finance of Russia dated November 21, 2012 N 03-03-06 / 1/601, dated September 18, 2009 N 03-03-06 / 2/174, Federal Tax Service of Russia for Moscow dated August 25, 2010 N 16-15 / [email protected]).
At the same time, if changes are made to the lease agreement on the extension of the lease term in the manner prescribed by Chapter 29 of the Civil Code of the Russian Federation, the tenant has the right to charge depreciation on capital investments during the new term of the lease agreement (see letter of the Ministry of Finance of Russia dated September 18, 2009 N 03 -03-06/2/174). In addition, according to the opinion of the Ministry of Finance of Russia, expressed in a letter dated 11.08.2017 N 03-03-06 / 1 / 51578, if the tenant continues to use the property after the expiration of the lease agreement in the absence of objections from the landlord, the agreement is considered concluded for an indefinite period, and the lessee continues to depreciate capital investments in the leased property until one of the parties announces the termination of the lease.
According to the official position, the depreciation bonus is not applied to inseparable improvements (letters of the Ministry of Finance of Russia dated February 9, 2009 N 03-03-06 / 2/18 and dated May 22, 2007 N 03-03-06 / 2/82).
Please note, according to the opinion of the Ministry of Finance of Russia, set out in letter N 03-03-06/1/601 dated November 21, 2012, the cost of capital investments made by a future tenant under a preliminary lease agreement with the consent of the landlord, the cost of which is not reimbursed by the landlord, may be taken into account by the future tenant for tax purposes, starting from the moment of conclusion and during the term of the lease agreement. Upon termination of the lease agreement, the tenant shall cease accruing depreciation on said property.
3. If inseparable improvements are made with the consent of the landlord and are reimbursed to the tenant, then the amount received from the lessor in compensation for the cost of inseparable improvements is included in taxable income (clause 1, article 249 of the Tax Code of the Russian Federation).
VAT
When transferring improvements to the lessor, there is either a paid (if reimbursed by the lessor) or gratuitous transfer of the results of the work performed, subject to VAT (clause 1, article 146 of the Tax Code of the Russian Federation). That's what the regulators think. Arbitration courts are also often of the opinion that when transferring capital investments to the lessor's balance sheet, the lessee is obliged to calculate and pay VAT to the budget.
However, in judicial practice, there are also opposite decisions, according to which, when transferring the costs for the cost of inseparable improvements to the leased object to the lessor, there are no transactions recognized as subject to VAT. The judges point out that the result of the tenant's work on the reconstruction of the premises was inseparable improvements to the leased property, which in any case are the property of the landlord from the moment they were created. These improvements, by virtue of their qualities, cannot be attributed to an independent object of implementation, therefore, on the basis of Art. 38 and Art. 146 of the Tax Code of the Russian Federation, the object of VAT does not arise. However, this view is associated with tax risk, so most companies prefer to charge VAT on the transfer of inseparable improvements to the landlord.
In the case of a paid transfer (reimbursement by the lessor), the tax base is determined as the contractual (market) value of the transferred inseparable improvements, excluding VAT (clause 1, article 154 of the Tax Code of the Russian Federation).
In case of gratuitous transfer, the tax base for VAT is market price inseparable improvements transferred free of charge, excluding VAT (clause 2, article 154 of the Tax Code of the Russian Federation, letter of the Federal Tax Service of Russia for Moscow dated January 26, 2007 N 19-11 / 06916). Wherein market price determined in accordance with Art. 105.3 of the Tax Code of the Russian Federation. In paragraph 1 of Art. 105.3 of the Tax Code of the Russian Federation states that the prices used in transactions, the parties to which are independent persons, as well as income (profit, revenue) received by persons who are parties to such transactions, are recognized as market prices. According to paragraph 3 of Art. 105.3 of the Tax Code of the Russian Federation when determining the tax base, taking into account the price applied by the parties to the transaction for tax purposes, quoted price is recognized as a market one, unless the tax authorities prove otherwise, or if the taxpayer has not independently adjusted the amount of tax (loss) in accordance with paragraph 6 of Art. 105.3 of the Tax Code of the Russian Federation. At the same time, the taxpayer has the right to apply for tax purposes a price that differs from the transaction price, if the price actually applied in the transaction does not correspond to the market price.
4) In turn, the lessor, as the owner of the leased object, who has assumed the burden of capital investments, the VAT amounts presented by the tenant in this manner can either be deducted in accordance with Art. 171 of the Tax Code of the Russian Federation, or included in expenses when calculating income tax on the basis of Art. 170 of the Tax Code of the Russian Federation.
PROPERTY TAX
According to the accounting rules, the lessee includes capital investments made in fixed assets if they meet the criteria specified in paragraph 4 of PBU 6/01 (second paragraph of paragraph 5 of PBU 6/01).
Thus, a tenant that has actually accounted for inseparable improvements on its balance sheet as fixed assets must pay property tax. A similar point of view was expressed by the Ministry of Finance of Russia in letters dated March 11, 2009 N 03-05-05-01 / 17, dated December 16, 2008 N 03-05-05-01 / 73, dated October 24, 2008 N 03-05-04-01 /37 .
Please note that movable property accepted from January 1, 2013 for accounting as fixed assets is not recognized as an object of taxation on property (until January 1, 2015, from January 1, 2015, fixed assets included in the first or in the first second depreciation group in accordance with the Classification of fixed assets). The question of whether a capital investment is in itself movable or immovable property is not regulated and must be decided on a case-by-case basis. In our opinion, the assignment of a particular investment to real estate depends on whether the rights to this object are subject to state registration in accordance with Art. 131 of the Civil Code of the Russian Federation and the Federal Law of July 21, 1997 N 122-FZ.
Example
Organization applying common system taxation, in April made capital investments in the form of inseparable improvements in the rented premises (separate entrance) with the consent of the landlord. The cost of the leased building, according to the estimate specified in the contract, is 3,000,000 rubles. Lease term - 2 years (24 months) from January 1. The landlord under the agreement does not reimburse the tenant for the cost of inseparable improvements. The work was carried out by a contractor. Capital expenditures amounted to 590,000 rubles, including VAT of 90,000 rubles. The useful life of the improvement is set at 20 months (until the end of the lease agreement). Linear depreciation.
The tenant must take into account the rented premises on the off-balance account 001 in the assessment specified in the contract:
Amount, rub | Description |
||
the leased premises are taken into account on the balance sheet (based on the acceptance certificate) |
The tenant takes into account the costs of inseparable improvements on account 08:
Amount, rub | Description |
||
500 000 | the costs of creating inseparable improvements are taken into account |
||
inseparable improvements are included in property, plant and equipment |
|||
reflects the VAT presented by the contractor |
|||
VAT accepted for deduction |
Amount, rub |
||
25 000 |
