Terms and conditions of payments in the lease agreement. What are rental holidays and how to write them in the contract

27.04.2019

Transmission

When renting property for temporary possession and use, the lessor pursues the main goal in the form of obtaining rent. Therefore, the condition of rent is most significant for the landlord.

Strictly speaking, the issues of establishing and changing the rent under a lease agreement vehicle(hereinafter - TS) with a crew are regulated general provisions on the lease agreement (paragraph 1 of Chapter 34 of the Civil Code of the Russian Federation). However, under a vehicle lease agreement with a crew, the lessor not only transfers the property for temporary use, but also actually provides (through its employees) services for managing this vehicle. In this regard, in practice, three features can be distinguished regarding settlements under such an agreement:

firstly, the parties often provide in the contract that the amount of rent depends on the mode of use of the vehicle - in particular, the contract may provide for an increased amount of rent for excess operation;

secondly, when concluding an agreement, it is worth paying Special attention on how the responsibilities for bearing the costs of paying for the services of crew members and the costs of commercial exploitation vehicle;

thirdly, you need to make sure that the contract specifies Additional services, which the lessor is obliged to provide (for example, delivery or dismantling of special equipment), and the size additional fee for these services.

In addition, since rent is a source of income for the landlord, he is interested in increasing the amount of this income if possible. Therefore, the question is of particular relevance: in what cases the amount of rent established in the contract can be changed (increased).

Ways to determine the amount of rent

The rent under a crewed vehicle rental agreement can be set in two different ways.

1. The amount of the rent is set in a fixed amount of money.

IN this case the exact amount of money to be transferred by the tenant to the landlord is determined within the time limits established by the agreement.

An example of a fixed cash rental agreement clause

“The Tenant monthly, no later than the 5th day of the current (paid) month, transfers the rent in the amount of 10,000 rubles to the settlement account of the Landlord. (ten thousand rubles), including VAT.

2. The amount of rent is determined using the procedure (mechanism) for calculating it fixed in the contract.

In this case, the rent is set using various formulas, coefficients, tariff rates or other data that is a mechanism for determining the amount of rent. In particular, the fee for renting a vehicle can be set depending on changes in the foreign exchange rate, the number of hours of operation of the vehicle, the mode of operation, and even the cost of services that the lessee provides to third parties using this vehicle.

An example of the terms of an agreement on the procedure for calculating rent depending on changes in the exchange rate of foreign currency

“The Lessee monthly, no later than the 5th day of the current (paid) month, transfers to the Lessor’s settlement account a rent in the amount of 1,000 USD (one thousand US dollars) in rubles at the exchange rate of the Central Bank of the Russian Federation on the date of payment, including VAT.”

An example of a contract clause on the procedure for calculating rent depending on the cost of services provided to third parties

“The Lessee monthly, no later than the 5th day of the month following the paid one, transfers to the Lessor’s current account a rent in the amount of 70 percent of the cost of passenger tickets sold in the previous month for travel to motor vehicle, including VAT".

An example of a contract clause on the procedure for calculating the rent by determining the cost of the actual use of the vehicle

“The rent for the use of the vehicle is set at 1000 rubles. for 1 hour of actual use, including VAT.

It makes sense for the lessor to provide in the contract for an increased cost of using the vehicle for cases of operation in excess of the established standards. This is because the lessor's employees providing management and technical operation vehicle cannot provide them continuously. And services in excess of the established standards (which, of course, must also be indicated in the contract) are paid in larger size. This value is also referred to as excess value.

Example of a contract clause for excess rent for the use of a vehicle with a crew

“The rent for the use of the vehicle is set at 1000 rubles. for 1 hour, including VAT. The cost of excess operation of the vehicle is 2000 rubles. at one o'clock".

If the parties have entered into a vehicle rental agreement with a crew, in which the rental fee is set per unit of time, then the amount of the rental fee will be payable for the time of actual use of the vehicle. If it could not be used by the tenant due to the fault of the landlord, then in this case the rent is not subject to recovery.

Example from practice: the court of cassation confirmed the correctness of the calculation of the rent based on the time actually worked by the vehicle

The plaintiff (lessor) filed a claim with the defendant (lessee) for the recovery of rent for the use of the vehicle with the provision of management and operation services, as well as interest for the use of other people's money.

The court of first instance satisfied the claim in part, recovering the rent only for the time of actual use of the vehicle.

The Court of Appeal upheld the decision.

The plaintiff filed a complaint with the court of cassation, in which he asked to cancel the contested judicial acts and adopt a new judicial act to satisfy the claims in full. According to the applicant, the conclusions of the courts that the rent for the use of equipment should be paid by the tenant based on the time actually worked on this equipment, as well as the proof of the fact that the equipment was not ready for work, were unfounded. According to the plaintiff, the defendant is obliged to pay rent for the entire time the equipment is at his disposal, and not only for the time of actual operation of the vehicles.

The Court of Cassation stated as follows.

The courts found that one of the vehicles ( tower crane) was not actually used by the defendant, since it was not provided with a supply cable and a crew, and an electrical cabinet was not installed to connect the cable to it. Therefore, the claim for the recovery of rent in respect of this vehicle is not subject to satisfaction.

The rent for the other vehicle was charged based on the number of hours worked by the equipment. The calculation of the rent based on the actual hours worked corresponds to the goals of the vehicle rental agreement with the crew - such a goal is the operation of the equipment.

Based on the foregoing, the court of cassation left the contested judicial acts unchanged, and the cassation appeal - without satisfaction (decree of the Federal Antimonopoly Service of the West Siberian District of December 7, 2010 in case No. A70-3501 / 2010).

Ways to increase and index rent

The parties may at any time change the amount of the rent by entering into an additional agreement to the lease agreement. However, the tenant may not agree to the landlord's proposal to conclude such an agreement.

Therefore, it makes sense to include in the text of the contract conditions in advance, thanks to which the lease will remain beneficial for the landlord. This can be done in several ways.

First, to set the rent not in a fixed amount, but in the form of a formula (depending on the level of inflation, foreign exchange rate, etc.). In this case, the amount received by the landlord will change automatically (for example, indexed to inflation). The advantage is that from a formal point of view, the terms of the agreement on the procedure for calculating the rent will remain unchanged. This means that it will not be subject to restrictions on changing the amount of rent.

Secondly, to provide in the contract that from such and such a date (or under such and such conditions) the landlord may increase the amount of rent in unilaterally without the tenant's consent.

An example of a contract clause on the possibility of unilateral rent increase

“The landlord has the right to unilaterally change the amount of rent no more than once a year without going to court by notifying the tenant in writing no later than 30 (thirty) calendar days in advance.”

In this case, it is necessary to use the most clear and detailed wording, in particular, to prescribe the following in the contract.

1. In what cases is such a change in the rent possible (for example, one year after the conclusion of the contract with an annual inflation rate of 7% or more).

2. The procedure for the lessor to exercise the right to increase the rent (for example, the lessor sends a notice to the tenant, which contains information about the increase in rent and in what amount).

3. The procedure for notifying the tenant about this (for example, by mail by registered mail with acknowledgment of receipt or personally to the tenant's employee against signature at the tenant's office).

4. From what moment the condition of the rent will be considered changed (for example, after a month after the receipt of the notice by the tenant).

If this is not done, the court, in the event of a dispute, may decide that the parties have not provided for the right to change the size unilaterally, but only the opportunity to conclude an agreement on changing this size in the future.

Advice: The tenant may not agree to the inclusion of such a clause in the lease agreement, since it is clearly not in the interest of the tenant. IN similar cases you can recommend the lessor to offer its counterparty more soft version conditions for an increase in the cost of rent. For example, a clause of the agreement on the possibility of unilaterally increasing the rent by the landlord can be supplemented with the condition that the amount of the rent can be changed by no more than a certain amount as a percentage: "...but not more than 5%". In this case, the chances of concluding an agreement with the counterparty will be significantly higher, since the relationship between the parties will become more certain.

Thirdly, prescribe in the contract that from such and such a date the rent increases by so much without any notice from the landlord to the tenant.

Example of an agreement clause for an "automatic" rent increase without any notice from the landlord to the tenant

“During the first year after the conclusion of this Agreement, the rent is set at 50,000 rubles. At the end of the first calendar year of the Agreement, the amount of the rent increases to 70,000 rubles.

Condition on the right to terminate the contract due to late payment of rent

If the tenant does not pay the rent more than twice in a row within the period specified in the contract (the expression "more than two times in a row" actually means at least three times), the landlord has the right to demand early termination of the lease agreement in judicial order(part 3 of article 619 of the Civil Code of the Russian Federation).

The landlord can further protect his interests if he convinces the tenant to include in the lease a condition that the landlord can demand termination of the agreement even if the rent is late on a single payment. The Supreme Arbitration Court of the Russian Federation confirmed that such conditions do not contradict the law (paragraph 26 of the information letter No. 66).

The security deposit in the lease agreement is intended to compensate for the lessor's losses arising from the lessee's failure to fulfill its obligations under the lease agreement. Consider the features of this payment.

The role of collateral in contractual relations

A contractual relationship is an interaction that implies the existence of mutual obligations and therefore is based on certain risks for the parties. To reduce such risks, the legislation provides for the possibility of introducing measures that could at least to some extent reduce the losses from these risks. Such measures are called interim measures and can be presented (Article 329 of the Civil Code of the Russian Federation):

forfeit,
pledge,
holding things,
surety,
guarantee from an independent party,
deposit,
security (guarantee) payment.

A security deposit is a new concept for the Civil Code of the Russian Federation, introduced into it only from 06/01/2015 (Law "On Amendments ..." dated 03/08/2015 No. 42-FZ). Its meaning lies in the contribution of the 1st of the parties to the contract in favor of the 2nd party of a certain amount of money, which, when creating circumstances for the violation of monetary obligations to the 2nd party, will be counted towards their repayment (clause 1 of article 381.1 of the Civil Code of the Russian Federation) . There may be a substitution of money contributed to the liability securities or things (Article 381.2 of the Civil Code of the Russian Federation).

If there are no circumstances of breach of obligations during the validity of the contract, then security deposit upon its completion, it is usually returned to the 1st party, although by agreement of the parties it can be reclassified as a payment for another purpose. In case of its partial use, the payment amount is restored to the original one. It is also possible to reduce its total amount when creating circumstances conducive to this.

Security deposit under a lease agreement - what is it?

The condition for making a security deposit in a lease agreement is quite often provided for due to the fact that such a document:

is made in respect of valuable property;
reflects the obligation to pay regularly rental payments;
valid for a sufficiently long time.

That is, the security deposit in the lease agreement can solve the problem of compensation for damage:

from the loss of property or bringing it into a state that goes beyond the limits that limit the process of normal wear and tear;
non-receipt, incomplete or untimely receipt of lease payments;
non-compliance by the tenant with other conditions contained in the lease agreement.

As part of the security deposit in the lease agreement, the following should be reflected:

its specific purpose (to repay what type of damage it is intended for);
the amount of funds contributed to the security;
order:
- making a payment,
- its use,
- replenishment for the used amount,
- resizing,
- return.

The security deposit in a lease is usually cash. Most often they are intended to cover losses from late payment of rent. Therefore, the amount of such a payment, as a rule, is made dependent on the amount of the fee specified in the contract for any of the rental periods: month, quarter or year. Although it is possible to establish any amount of arbitrary size.

Basic and additional contribution to the security deposit

With regard to the procedure for making the first (principal) amount of the security deposit, it is necessary to determine in the contract:

the period in which this must be done, and the moment from which this period will begin to count;
the type of funds to be paid and the method of their payment.

The date of transfer of property to the tenant may depend on the moment of fulfillment of the obligation to deposit security. Throughout the term of the contract, the amount of the security deposit will be with the lessor. Interest is not charged on it.

With the full or partial use of funds constituting guarantee payment, its amount must be restored by an additional contribution to this security.

The agreement may also provide for a change in the amount of the security deposit. For example, depending on the increase (decrease) in the monthly amount of rent. In this case, the amount missing from the increased amount of security will need to be additionally transferred to the landlord, and the excess security payment can either be returned to the tenant or set off against the payment of rent.

For situations in which you need to either make an additional payment or return (offset) the funds, the text of the contract will also need to make a reservation about the timing of each of necessary action and about the moment of the beginning of the countdown of these terms.

Use of the guarantee payment under the lease agreement

A guarantee payment is used in 2 cases:

to pay for damages from violation of the terms of the contract caused to the lessor in the situations specified in the terms of this document;
to pay rent for the closing periods of the lease agreement, as may be provided for by its terms or additional agreement to this document.

When funds are used to cover damages, the tenant should be informed of the reason for which and to what extent the security deposit funds were used. The amount of expenses incurred must be documented. The form of such notice (notice) may become an annex to the lease agreement. From the date of sending this notice (or the date of its receipt by the tenant), it is possible to calculate the period established for replenishing the principal amount of the guarantee payment. That is, it becomes important for the parties to the contract to establish a procedure for notification of the use of collateral to pay for damages.

Refund of the guarantee fee under the rental agreement

Options for using the amount of the guarantee fee at the end of the lease agreement are established by its parties. If there is no set-off against final lease payments, other options may include:

return of security in full to the tenant;
distribution of the payment amount between the parties equally or in some other ratio;
transfer of rights to security to the lessor.

Accordingly, if there is a need for this, the choice of option must be reflected in the contract. The return operation (regardless of its scope) will not entail tax consequences for either the tenant or the landlord. But the amounts remaining with the lessor will become his income, subject to income tax (STS or personal income tax).

Taxation of the guarantee payment

In terms of income taxation, the guarantee payment is regarded in the same way as security in the form of a pledge, a deposit (letters of the Ministry of Finance of Russia dated May 31, 2016 No. 03-03-06/1/31325, dated February 18, 2016 No. /8968, dated 03.11.2015 No. 03-03-06/2/63360), therefore, during the term of the contract, it is not considered:

income from the lessor (subparagraph 2, paragraph 1, article 251 of the Tax Code of the Russian Federation);
expense from the tenant (clause 32 of article 270 of the Tax Code of the Russian Federation).

With regard to the taxation of this VAT payment, one should be guided by the norm of paragraph 1 of Art. 381.1 of the Civil Code of the Russian Federation, indicating that its conversion into funds credited as payment for rental services occurs only under certain circumstances, which may not occur. That is, up to this point, the guarantee payment is a means of security, and not a means of payment, and, accordingly, is not subject to VAT.

The point of view of the Ministry of Finance on the assessment of the security deposit for VAT

However, the Ministry of Finance of Russia takes a different, and different, point of view, believing that a security deposit, which implies the possibility of offsetting it as payment for rent, should be regarded as:

Funds related to the payment for services sold under sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation (letter No. 03-03-06/2/63360 of November 3, 2015). For this reason, a lessor who works with VAT must charge tax payable on the amount of security received. With this approach, both parties to the lease agreement (if the tenant also works with this tax) will have problems with the deduction of VAT accrued for payment:
- the tenant - since the charge of tax by the lessor under sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation does not imply issuing an invoice to the tenant (subclause 1, clause 3, article 169 of the Tax Code of the Russian Federation, clause 18 of the Rules for keeping a sales book, approved by Decree of the Government of the Russian Federation of December 26, 2011 No. 1137);
- from the lessor - because the deduction for VAT accrued under sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation, art. 171 of the Tax Code of the Russian Federation does not imply.
An advance payment subject to taxation at the lessor under sub. 2 p. 1 art. 167 of the Tax Code of the Russian Federation (letter No. 03-07-11/47861 dated August 16, 2016). In this case, an invoice is issued to the tenant (clause 1, article 168 of the Tax Code of the Russian Federation) and he has the right to take VAT in advance for deduction with its subsequent recovery at the time of offset against payment for the services rendered (subclause 3, clause 3, article 170 of the Tax Code of the Russian Federation). The landlord, when offsetting an advance against payment of rent, will also take tax as deductions (clause 8, article 171 of the Tax Code of the Russian Federation).

Thus, there is uncertainty not only regarding the need to charge VAT on the amount of the security deposit, but also in the semantic assessment of this payment for the purposes of VAT taxation.

Security deposit accounting

The deposited security deposit is accounted for as a debt:

receivable - from the tenant (clauses 3, 16 PBU 10/99);
accounts payable - from the lessor (clauses 3, 12 PBU 9/99).

For both parties to the contract, it is shown on account 76 until it is returned or set off against rent payments.

Transactions for the transfer / return of the security deposit will be as follows:

For the tenant:

Dt 76ob Kt 51 - when transferring a payment;

Dt 51 Kt 76ob - upon receipt of it back.

From the lessor:

Dt 51 Kt 76ob - upon receipt of payment;

Dt 76ob Kt 51 - upon his return,

where 76ob is a sub-account for accounting for settlements on collateral.

In addition, during the period the security is held by the lessor, both parties will reflect its amount off the balance sheet:

on account 009 - with the tenant;
on account 008 - with the lessor.

If the lessor regards the operation of receiving the security deposit as related to the settlement of rent and entailing the need to charge VAT, then he will have a posting:

Dt 76nds Kt 68,

where 76nds is a subaccount for accounting for VAT settlements.

In a situation where the guarantee payment is considered as an advance payment intended for rent settlements, deduction entries will appear that are the same for the tenant (if he works with VAT) and the landlord, but differ in the time of their implementation (for the tenant - when transferring an advance, for lessor - at the time of offsetting the advance against payment for services):

Dt 68 Kt 76nds.

The tenant at the time of offsetting the advance against the payment of rent will restore the tax:

Dt 76nds Kt 68.

If the charge of VAT by the lessor is carried out under sub. 2 p. 1 art. 162 of the Tax Code of the Russian Federation, which does not involve a further restoration operation, then the tax accrued for payment will be written off to other expenses:

Dt 91 Kt 76nds.

At the moment the security deposit is set off against the payment of the rent, a transaction will appear to close the lease debt with security funds:

at the tenant:

Dt 76ar Kt 76ob;

from the landlord:

Dt 76ob Kt 76ar,

where 76ar is a sub-account for accounting for rent payments.

From off-balance accounts 008 and 009, the security will be written off in the required amount at the time of its return or offset against the lease payment.

Results

The security deposit provided for in the lease agreement is intended to compensate for the losses of the landlord if the tenant fails to fulfill its obligations. Its specific purpose, volume, features of the introduction, use, return are governed by the provisions of the contract. For income tax, such a payment is not taken into account, but in situations linking it to rent calculations, it may fall under VAT. In accounting, the security deposit is reflected as a debt from both the tenant and the landlord.

"Accounting Bulletin", N 2, 2005

Despite the fact that there are enough explanations, publications and other information related to rent in publications, reference systems, the number of questions on this topic received by the editors of our journal suggests that the topic is relevant and requires additional analysis and explanations.

Within the framework of the article, we will consider the issues of accounting and taxation of settlements of the tenant and the landlord for utility bills, as well as the procedure for processing primary documents, invoices.

Legal regulation of lease agreements

In article 606 Civil Code Russian Federation(hereinafter - the Civil Code of the Russian Federation) it is established that under a lease agreement the lessor (landlord) undertakes to provide the tenant (tenant) with property for a fee for temporary possession and use or for temporary use.

According to Article 609 of the Civil Code of the Russian Federation, a lease agreement for a period of more than a year, and if at least one of the parties to the agreement is a legal entity, regardless of the period, must be concluded in writing. At the same time, a real estate lease agreement, which includes, in particular, buildings (Article 130 of the Civil Code of the Russian Federation), is subject to state registration.

The right to lease property belongs to its owner. Landlords may also be persons authorized by law or the owner to lease property. This is written in Article 608 of the Civil Code of the Russian Federation.

Regarding the transfer of property (Article 611 of the Civil Code of the Russian Federation)

The lessor is obliged to provide the tenant with property in a condition that complies with the terms of the lease agreement and the purpose of the property, while the property is leased along with all its accessories and related documents ( technical passport, quality certificate, etc.).

Regarding the establishment and payment of rental payments (Article 614 of the Civil Code of the Russian Federation)

The tenant is obliged to timely pay for the use of the property (rent). The procedure, conditions and terms for paying the rent are determined by the lease agreement.

The rent is established for all leased property as a whole or separately for each of its constituent parts as:

defined in a fixed amount of payments made periodically or at a time;
the established share of products, fruits or income received as a result of the use of the leased property;
provision of certain services by the tenant;
the transfer by the lessee to the lessor of the thing stipulated by the contract in ownership or for rent;
the imposition on the lessee of the costs stipulated by the contract for the improvement of the leased property.

The parties may provide in the lease agreement for a combination of these forms of rent or other forms of payment for rent.

We add that the rent can be calculated in at least two ways:

taking into account utility costs, that is, when rent all expenses of the landlord are covered, including "communal";
excluding the cost of utilities, that is, the rent covers depreciation, property tax, land payments and other expenses incurred by the lessor as the owner of the leased property.

We will discuss these methods in detail below.

Unless otherwise provided by the contract, the amount of the rent may be changed by agreement of the parties within the time period stipulated by the contract, but not more than once a year. The law may provide for other minimum terms revision of the amount of rent for certain types of lease, as well as for the lease of certain types of property.

It is also appropriate to note here that in paragraph 11 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66, it is indicated that only the condition of the contract should remain unchanged during the year, however, it may provide for both a fixed amount of rent and a procedure (mechanism) her calculations. Therefore, if the rent includes the cost of utilities calculated on a monthly basis either upon consumption by the tenant or in another justified way, changing the amount of the rent will not contradict the Civil Code of the Russian Federation.

Regarding the maintenance of the leased property (Article 616 of the Civil Code of the Russian Federation)

The tenant is obliged to maintain the property in good condition, make current repairs at his own expense and bear the costs of maintaining the property, unless otherwise provided by law or the lease agreement. Thus, the tenant (tenant) is obliged to pay for utilities, of course, unless another procedure is provided for by the contract or law.

In other words, the costs (expenses) for payment of utility bills, including the costs of technical operation of the engineering networks of the building, the costs of electricity, heat, water supply, sewerage and maintenance of auxiliary premises, the costs of building insurance and other costs, shall be borne in accordance with the terms of the lease agreement, the landlord or tenant.

What can be related to utilities

Utility expenses include expenses for payment to third parties (or on their own) services necessary to ensure normal operation buildings, structures and individual premises.

The main services include:

power supply;
supply of thermal energy (for heating and hot water);
water supply and sewerage;
gas supply.

A detailed list of public utilities services as a type of activity is given in the All-Russian classifier of services to the population OK 002-93 (OKUN), approved by the Decree of the State Standard of Russia of 06/28/1993 N 163.

Speaking of other services, which can also be attributed to utilities, the following should be highlighted:

cleaning and removal of snow, garbage and other sewage;
disinfection and deratization, extermination of rodents, various insects, as well as aeration of warehouses;
fire fighting measures;
cleaning and landscaping of territories and streets adjacent to the institution;
washing overalls, carpets, curtains, tablecloths, napkins, towels, other items of soft inventory, as well as upholstered furniture;
chimney cleaning; rubbing floors, pasting and washing windows;
maintenance and repair elevator equipment, air conditioners, electric lighting, heating, plumbing, sewer systems installed in buildings and premises;
maintenance of drains;
carrying out energy inspections and certifications, metrological checks of public utilities.

They do not belong to the category of public services, but telephone services, fire and guard services for buildings, structures and premises, as well as television and radio services are taken into account in the same order.

The relationship between the tenant and the landlord on payment of utility bills

Consider everything possible options the relationship of the parties in the lease agreement for payment of utilities.

So, utilities and communication services under lease agreements for premises (buildings, structures) can be paid in the following ways.

Option 1. The costs for utilities related to the maintenance of the leased premises are borne by the tenant, while he himself concludes separate agreements with utility providers.

Option 2. Expenses for utilities related to the maintenance of the leased premises, according to the lease agreement, are borne by the lessor, and their amount is actually taken into account when determining the rent.

Option 3. The costs for utilities related to the maintenance of the leased premises are borne by the tenant, while he does not conclude contracts with utility providers, but compensates the lessor for the costs of paying utility bills.

Option 4. The tenant acts as a sub-subscriber for certain types utilities and makes all payments through the subscriber (landlord).

Let's consider each method in more detail.

The costs for utilities are borne by the tenant and he himself concludes separate agreements with utility providers

The tenant independently concludes relevant agreements with organizations supplying the leased property with electricity, water, heat, with a telecom operator, etc. Note that this method is rarely used by the parties. This is primarily due to the difficulties associated specifically with the renewal of contracts on the part of energy supply and other organizations providing utility services. At the same time, this method can be used in cases where the subject of the lease is state or municipal property or the contract is concluded for a long period.

The procedure for drawing up contracts for the provision of public services is determined by the Civil Code of the Russian Federation. The order of power supply is regulated by §6 of Chapter 30 of the Civil Code of the Russian Federation. An energy supply agreement is concluded between an energy supply organization and a subscriber (consumer) (Article 539 of the Civil Code of the Russian Federation).

The rules of the energy supply agreement also apply to relations related to the supply of thermal energy through the connected network, as well as gas, oil and oil products, water, etc., unless otherwise provided by law, other legal acts, or follows from the nature of the obligation (Art. 548 of the Civil Code of the Russian Federation).

In this case, the lessor shall not bear the costs of paying utility bills for the leased premises (buildings). The landlord receives only the rent, the amount of which he includes in income (paragraph 4 of Article 250 or Article 249 of the Tax Code of the Russian Federation), and also pays VAT on it (Article 146 of the Tax Code of the Russian Federation), provided, of course, that he is the payer these taxes.

If the obligation to pay utility bills under the lease non-residential premises(building) is assigned to the tenant, then these costs are taken into account by him as part of other expenses related to production and (or) sale, on the basis of documents issued by service providers in accordance with clause 10 clause 1 article 264 of the Tax Code of the Russian Federation, also as well as the cost of rent.

VAT paid as part of utility payments to service providers, the tenant accepts for deduction in general order, of course, subject to the conditions provided for by Articles 171 and 172 of the Tax Code of the Russian Federation (availability of an invoice, documents evidencing payment, etc.).

Utilities costs are borne by the landlord, and their amount is taken into account when determining the rent

Using this option, both the tenant and the landlord need to consider the following points.

In the text of the lease agreement, the parties must indicate that the costs of maintaining the leased premises (building) are borne by the lessor. In this case, the landlord will be obliged at his own expense to pay for utilities according to the invoices issued to him by the providers of these services, which will be covered by the tenant as part of rent payments.

The amount of lease payments can be determined by the contract, both in the form of a fixed monthly payment, and by calculation, including the rent, as such, and the actual cost of utilities for a certain period.

Obviously, in the first case, the landlord must make preliminary calculations of the average monthly cost of utility bills, by which monthly rent payments should be increased, taking into account seasonal fluctuations. In the second case - to determine the procedure (mechanism) for calculating utility bills payable by the tenant.

Calculations can be carried out:

based on the readings of separately installed meters;
in proportion to the areas occupied by the tenant;
in proportion to the power of devices installed in the leased areas;
in a different way.

The lessor has the right to attribute these costs to expenses that reduce the taxable base for income tax:

or on the basis of subparagraph 1, paragraph 1, article 265 of the Tax Code of the Russian Federation, as expenses for the maintenance of property transferred under a lease agreement, when said expenses are non-operating for the organization;
or on the basis of subparagraph 49 of paragraph 1 of article 264 of the Tax Code of the Russian Federation, when these expenses are related to production and sale (rent is a normal type of activity).

As in the first option, the landlord receives rent, which will be income for him.

VAT paid by the landlord as part of utility bills is claimed for deduction on the basis of clause 1 clause 2 of article 171 of the Tax Code of the Russian Federation, provided that the rent is subject to VAT.

As for the tenant, he pays the landlord only the rent, the amount of which he includes as part of his expenses (clause 10, clause 1, article 264 of the Tax Code of the Russian Federation), and the VAT presented to him by the landlord is deductible in the manner prescribed by Art. 171 and 172 of the Tax Code of the Russian Federation.

Example 1. In February 2005, CJSC Victoria, under a lease agreement, provided office space lease LLC "Kassandra". The contract stipulates that the utility bills are paid by the lessor CJSC "Victoria". The agreement also provides that rent payment is calculated as follows: the rent is summed up, amounting to 35,400 rubles. per month (including VAT - 5400 rubles), and the cost of utilities attributable to the rented premises per month. The calculation is made in proportion to the area occupied by the tenant, which is 10% of the total area of the building.

Based on the calculation, the cost of utilities to be included in the rent payment for February amounted to 11,800 rubles, including VAT (118,000 rubles x 10%). Thus, CJSC Victoria issued an invoice to the tenant for the total amount of 47,200 rubles, including VAT.

Entries will be made in the lessor's books in February.

Debit 62, sub-account "Tenant Kassandra LLC", Credit 90-1

RUB 47,200 - reflects the proceeds from the lease of property;

Debit 90-3 Credit 68 "VAT"

7200 rub. - VAT charged;

Debit 20, sub-account "Tenant Kassandra LLC", Credit 60

10 000 rub. - utility costs to be included in the rent payment are taken into account;

Debit 19 Credit 60

1800 rub. - VAT included;

Debit 60 Credit 51

11 800 rub. - transferred money to utility service providers;

Debit 68 "VAT" Credit 19

1800 rub. - refunded input VAT;

Debit 90-2 Credit 20, sub-account "Tenant LLC Kassandra"

10 000 rub. - expenses are written off;

Debit 51 Credit 62

RUB 47,200 - received payment from the tenant for February.

If the lease is not an ordinary activity for the company, then the amount of the rent is taken into account as operating income. In this situation, it should be reflected in the credit of account 91, subaccount 1 "Other income". Expenses for payment of utilities should be attributed to operating expenses (debit of account 91, subaccount 2 "Other expenses").

The following entries will be made in the tenant's accounting in February:

Debit 20 Credit 60, sub-account "Lessor CJSC" Victoria "

40 000 rub. - reflected in the accounting rent;

Debit 19 Credit 60, subaccount "Lessor CJSC Victoria"

7200 rub. - on the basis of the invoice, VAT is taken into account;

Debit 60, sub-account "Lessor CJSC Victoria", Credit 51

RUB 47,200 - transferred money to the landlord;

Debit 68 "VAT" Credit 19

7200 rub. - Input VAT refunded.

The tenant bears the costs for utilities, and at the same time, he does not conclude contracts with utility providers, but compensates the lessor for the costs of paying utility bills

This option is the most common and probably the most difficult. Let's start with the fact that in the Information Letter of the Presidium of the Supreme Arbitration Court N 66, which we have already mentioned, it is indicated that the conclusion between the tenant and the landlord of an agreement establishing the procedure for the participation of the tenant in the costs of electricity consumption cannot be qualified as an energy supply agreement. Thus, the Presidium of the Supreme Arbitration Court definitely established that the tenant is not a sub-subscriber in this case, and the landlord is not an energy supply organization. Accordingly, the conclusion of such an agreement may not contradict the Civil Code of the Russian Federation.

With this settlement option, the parties stipulate in the lease agreement that the tenant bears the utility costs, but the lessor makes settlements with utility providers, and the tenant reimburses him for the cost of these services based on the document (invoice) issued by the lessor. The landlord makes payments for utilities on the basis of invoices issued to him by service providers, after which, in turn, issues an invoice to the tenant.

The lessor calculates the actual consumption of utility services by the tenant in one of the ways that were discussed earlier.

The landlord in such a contractual relationship with the tenant will not be able to take into account the costs of paying for utilities in the part attributable to the leased premises for profit tax purposes, since according to the agreement, these are the tenant's expenses, and the landlord has nothing to do with his production activities. That is, they cannot be substantiated and justified.

Accordingly, the reimbursed amount for utility expenses received by the lessor from the tenant is also not income subject to inclusion in the taxable base for income tax, since it does not entail the receipt of economic benefits by the lessor.

The tenant, in turn, reimburses the landlord for utility costs, has the right to take into account the amount of such compensation when taxing profits. This is indicated in paragraph 8 methodological recommendations on the application of Chapter 25 "Corporate Income Tax" of the Tax Code of the Russian Federation, as well as in separate letters from the tax authorities, for example, Letters of the UMNS for Moscow dated 08.23.2002 N 26-12 / 39149, dated 07.22.2003 N 26-12 / 40946.

Naturally, the expenses of the tenant must be not only justified and justified, but also documented. Therefore, the contract must provide for the procedure for compiling and submitting documents by the lessor, on the basis of which they are paid by the tenant. At the same time, it should be borne in mind that all such expenses must be documented indicating the resources consumed, preferably both in value and in kind.

Documents confirming the tenant's expenses will be copies of invoices (other primary documents) of utility providers, settlements agreed with the landlord, invoices issued by the landlord already on his own behalf, as well as documents of the tenant confirming payment (payment orders, receipts for PKO).

A similar situation develops in the calculation of VAT.

The lessor, having received invoices from utility service providers, subject to all other conditions, can only deduct the amount of VAT that will fall on services consumed directly by the lessor for VATable activities.

At the same time, the amount of compensation received from the tenant for payment of utilities will not be subject to VAT, since in this case there is no fact that the lessor has sold any goods, works or services.

Therefore, in this situation, the movement of invoices should be as follows. The landlord receives an invoice from the supplier, which he registers in the purchase book in part of the amount of utilities consumed by him. Then, for the amount of utilities consumed by the tenant, the landlord reissues an invoice to the tenant on his own behalf, with the obligatory attachment of copies of suppliers' invoices. The landlord does not register this invoice in his sales book. The buyer in the book of purchases registers an invoice received from the landlord. As a result, both the landlord and the tenant deduct VAT on the utilities consumed by each of them.

Example 2. In February 2005, CJSC Victoria leased office space to LLC Kassandra under a lease agreement. The agreement stipulates that utility bills are paid by the lessor of CJSC Victoria, the lessee, in turn, reimburses the lessor for the cost of utilities for the leased premises. The cost of utilities is calculated in proportion to the area occupied by the tenant, which is 10% of the total area of the building.

Leasing out property is a common activity for CJSC "Victoria".

According to invoices issued by utility providers for February, the total amount payable by the landlord was 118,000 rubles, including VAT - 18,000 rubles. Suppliers' invoices were paid by CJSC "Victoria" in full in February.

Based on the calculation, the cost of utilities payable by the tenant for February amounted to 11,800 rubles, including VAT.

Entries will be made in the landlord's accounting in February (in terms of utility bills).

Debit 20(26) Credit 60

90 000 rub. - reflects the costs of utilities consumed by the lessor;

Debit 19 Credit 60

16 200 rub. - reflected VAT on utilities;

Debit 76, sub-account "Tenant Kassandra LLC", Credit 60

11 800 rub. - reflects the debt of the tenant to reimburse the cost (including VAT) of utilities attributable to the leased premises;

Debit 60 Credit 51

RUB 118,000 - invoices of suppliers for rendered utility services were paid;

Debit 68 "VAT" Credit 19

16 200 rub. - VAT on communal services presented for deduction;

Debit 51 Credit 76, sub-account "Tenant LLC Kassandra"

11 800 rub. - funds were received from the tenant to reimburse the landlord's expenses for paying utility bills.

Entries will be made in the tenant's accounting in February (in terms of utility bills).

Debit 26 Credit 76, sub-account "Lessor CJSC" Victoria "

10 000 rub. - accrued debts of the tenant to pay utility bills;

Debit 19 Credit 76, subaccount "Lessor CJSC Victoria"

1800 rub. - reflected VAT on utilities;

Debit 76, sub-account "Lessor CJSC Victoria" Credit 51

11 800 rub. - funds were transferred to the landlord to reimburse his expenses for paying utility bills;

Debit 68 "VAT" Credit 19

1800 rub. - VAT on utilities is presented for deduction on the basis of an invoice received from the landlord.

The tenant is a sub-subscriber for certain types of utilities and makes all payments through the subscriber (landlord)

This option is generally similar to the first one, since it requires regulating relations not only between the tenant and the landlord, but also with resource and energy supply organizations.

In accordance with Article 539 of the Civil Code of the Russian Federation, under an energy supply agreement, the energy supply organization, in particular, undertakes to supply energy to the subscriber through the connected network, and the subscriber undertakes to pay for the received energy, as well as to comply stipulated by the treaty mode of consumption. At the same time, an energy supply agreement is concluded with the subscriber if he has a person who meets the established technical requirements power receiving device connected to the networks of the power supply organization, and other necessary equipment, as well as when accounting for energy consumption. Article 545 of the Civil Code of the Russian Federation determines that a subscriber can transfer energy received by him from an energy supply organization through an attached network to another person (sub-subscriber) only with the consent of the energy supply organization. Thus, the subscriber organization actually sells electricity to the sub-subscriber. The same procedure is applicable, as already mentioned, to contracts for the supply of gas, oil, water and other similar products, - this is determined by Article 548 of the Civil Code of the Russian Federation.

Such consent of the energy supplying organization can be expressed in any form:

by issuing a written permit unilaterally by the energy supply organization;
by indicating such permission in a bilateral agreement between the energy supply organization and the subscriber;
by a permissive inscription (coordination) in the contract between the subscriber and the sub-subscriber;
otherwise confirming such consent.

Along with the Civil Code of the Russian Federation, the issues of supply and provision of gas, heat, water and sewerage are regulated by special departmental acts.

However, under what conditions is it necessary to amend contracts and obtain appropriate permission?

Civil law and others legislative acts allow us to draw the following conclusions.

Firstly, it is necessary if the consumer is connected directly with the subscriber by power transmission lines, that is, it has an attached network.

Secondly, it is necessary if, for example, separate buildings, structures or a complex of buildings (structures) are transferred under a lease agreement.

Third, if there are specifications allowing to separate the boundaries of the balance sheet ownership of the connected networks.

Fourthly, if a clear accounting of energy consumption is provided.

Fifthly, if there is a permit from the state energy supervision for the operation of connected networks, etc.

Let us repeat once again that a lease agreement for premises cannot and will not be considered as an energy supply agreement with all the ensuing consequences.

In conclusion, let us briefly dwell on individual departmental acts of organizations that supply utilities, ensure energy supply, which allow us to correctly draw up contracts and build relationships with these organizations.

Gas supply is an activity to provide consumers with gas. The procedure for settlements on utility bills for gas is established by the Federal Law of March 31, 1999 N 69-FZ "On Gas Supply in the Russian Federation". It provides that both the subscriber and the sub-subscriber must purchase gas only from the gas supply organization.

The sub-subscriber must purchase electricity and heat energy from the subscriber on the basis of an agreement concluded between them. This procedure is established by the Order of the USSR Ministry of Energy dated December 6, 1981 N 310 "On Approval of the Rules for the Use of Electric and Thermal Energy".

The contract for electricity supply or in the appendix to the contract between the subscriber and the power supply organization indicates data on sub-subscribers connected to the subscriber's network (name, capacity, electricity consumption, estimated electricity meters, tariffs, etc.).

Connection to the networks of the power supply organization, as well as to the networks of the subscriber of sub-subscribers who do not have devices for accounting for payments for electricity, is prohibited.

Payments for the supplied electricity are made according to payment documents issued by the energy supply organization for subscribers. If the subscriber has sub-subscribers, one payment document is issued for all electricity consumed by both the subscriber and his sub-subscribers.

The contract for the use of heat energy or an annex to the contract between the subscriber and the heat supply organization shall indicate data on the sub-subscribers connected to the heat network of the subscriber. They include: names of sub-subscribers, maximum hourly load, heat consumption, the amount of condensate returned (in tons and percent) broken down by months, tariffs, etc.

The subscriber can connect other sub-subscribers to his networks and conclude contracts with them for the supply of thermal energy only with the permission of the heat supply organization. Connection to the heat networks of a heat supply organization, as well as to the subscriber's networks of sub-subscribers who do not have metering devices for calculating for heat energy, is prohibited.

In the Letter of the Gosstroy of Russia dated 10/14/1999 N LCH-3555/12 "On clarifications on the application of the Rules for the use of public water supply and sewerage systems in the Russian Federation" it is determined that the receipt of drinking water from water supply networks and (or) discharge Wastewater to sewer networks is carried out by the sub-subscriber under an agreement with the subscriber.

The subscriber can transfer (receive) to the sub-subscriber (from the sub-subscriber) water (waste water) received by him from the water supply and sewerage organization through the connected water supply and sewerage devices and structures, only with the consent of the water supply and sewerage organization.

Accounting for the volumes of drinking water used by sub-subscribers, as well as the volumes of waste water received from them, is carried out by the subscriber.

Payments for the supply of water to sub-subscribers and the receipt of waste water and pollutants from them are made under agreements concluded between sub-subscribers and the subscriber, unless a different settlement procedure is established by local governments. By agreement of the subscriber and the sub-subscriber with the water supply and sewerage organization, such calculations can be made by the sub-subscriber directly with the water supply and sewerage organization.

S.V. Chikov

Deputy CEO

It is recommended that the lease agreement specify the term for making lease payments. If the parties have stipulated not a one-time, but periodic payment of the rent, the period must be agreed for each rental period. There are the following payment terms:

- advance payment - the rent is paid before the start or at the beginning of the term (period) of the lease;

— deferment — the rent is paid at the end or after the end of the term (period) of the lease;

- advance payment and additional payment (final settlement) - part of the rent is paid before the start of the lease term (period), and part after it ends.

The term of payment must be determined according to the rules of Art. Art. 190 - 194 of the Civil Code of the Russian Federation:

- an indication of a specific calendar date or event that must inevitably occur;

- the expiration of a certain period of time, calculated from a calendar date or from the moment of an inevitable event.

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Condition statement examples:

"The rent is paid by the tenant no later than 10.10.2010."

"The tenant undertakes to proceed with the payment of the rent by providing services on the next day after the acceptance of the object."

“Rent payment is made in the following terms:

— within 3 (three) days after signing the contract — 40% of the rent;

— within 5 (five) days after signing the contract — 60% of the rent”.

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Determining the term for making lease payments by regulatory legal acts

Terms for making lease payments for the use of certain leased objects may be established by a normative act. When agreeing on a lease agreement for such objects, the parties must be guided by the current acts containing the rules civil law. A condition of an agreement that is contrary to a normative act may be declared invalid by a court on the basis of Art. 168 of the Civil Code of the Russian Federation. However, this circumstance does not invalidate the entire contract (Article 180 of the Civil Code of the Russian Federation). Therefore, the rules established by legal acts (clause 4, article 421, article 422 of the Civil Code of the Russian Federation) apply to the relations of the parties in terms of the timing of the payment of rent.

Based on paragraph 1 of Art. 168 of the Civil Code of the Russian Federation, the contract in the relevant part will be general rule voidable, if the law has no other consequences not related to its invalidity. The law may establish exceptions to the rule of voidability. In particular, by virtue of paragraph 2 of Art. 168 of the Civil Code of the Russian Federation, the condition is void if it infringes on public interests or the rights and legally protected interests of third parties, and at the same time, the law does not indicate that it is rebuttable or that other consequences not related to invalidity should apply.

These rules apply to contracts concluded after September 1, 2013 (Part 6, Article 3 of Federal Law No. 100-FZ of May 7, 2013).

For lease agreements entered into before this date, Art. 168 of the Civil Code of the Russian Federation as amended before the entry into force of the Federal Law of 07.05.2013 N 100-FZ. According to this article, transactions that violate the requirements of a law or other legal act are, as a general rule, void.

It should be borne in mind that acts containing civil law norms do not include, in particular, regulatory legal acts of state authorities of the constituent entities of the Russian Federation and local governments (Article 3 of the Civil Code of the Russian Federation). In this regard, even if the lease agreement or its conditions contradict them, the court does not recognize such an agreement (condition) as invalid on the basis of Art. 168 of the Civil Code of the Russian Federation.

However, in judicial practice there was an opposite position: the contract was qualified by the court as invalid.

Determination of the term for making lease payments, depending on the issuance of an invoice by the lessor

Often in the contract, the term for making the rent is determined depending on the issuance of an invoice by the lessor. This is done in order to ensure that the tenant receives an invoice, since without such a document he will not be able to accept the paid VAT for deduction. For example, the parties stipulate that the payment of rent is made within a certain period after the invoice is issued, or indicate that it is carried out on the basis of the invoice and agree on the date of its issuance.

However, with regard to the term of payment, such a condition may be found to be contrary to Art. 190 of the Civil Code of the Russian Federation (Resolution of the Eighteenth Arbitration Court of Appeal dated September 29, 2011 N 18AP-9425/2011). This conclusion is consistent with the legal position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in paragraph 4 of the Information Letter dated January 11, 2002 N 66 "Review of the practice of resolving disputes related to rent" in relation to the expiration date of the contract. It lies in the fact that the term can be determined by indicating only such an event that must inevitably occur, i.e. does not depend on the will and actions of the parties. Issuing an invoice by the landlord does not meet these criteria. Therefore, you should not determine the payment period depending on the invoice issued by the lessor. Otherwise, it can be calculated according to the rules of paragraph 2 of Art. 314, para. 2 p. 1 art. 614 of the Civil Code of the Russian Federation.

In addition, when agreeing on the condition under consideration, the tenant must take into account judicial practice, according to which he is not released from liability for late payment of lease payments if the landlord has not issued an invoice, since the obligation to pay rent does not depend on its issuance. Based on the provisions of Art. Art. 606, 614 of the Civil Code of the Russian Federation, this obligation is due to the very fact of using the leased property.

At the same time, there is another position: the tenant is released from liability for late payment of rent if the landlord has not issued an invoice.

Thus, due to the risk of the tenant being late in fulfilling the obligation to pay the rent, which will entail the collection of penalties from him, it is not recommended to agree in the contract the condition for determining the term for making lease payments depending on the issuance of the invoice. It can be ensured by the lessor in other ways, for example, by including a penalty clause in the contract.

If the rent payment date is not agreed

In this case, the payment term usually applied when renting similar property under comparable circumstances is considered to be established (clause 1, article 614 of the Civil Code of the Russian Federation). In the event of a dispute, "terms normally applicable to leases of similar property under comparable circumstances" shall be determined on a case-by-case basis.

However, the court may apply to the relations of the parties the rules of paragraph 2 of Art. 314 of the Civil Code of the Russian Federation on the fulfillment of an obligation within a reasonable time after its occurrence. In this case, the tenant will be obliged not only to pay the rent, but also to pay a penalty for the delay period, calculated taking into account Art. 314 of the Civil Code of the Russian Federation.

Utility payments as part of the rent (residential premises). How to organize and issue settlements for utility bills for rented property.

Question: If utility payments are included in the rent for rented apartments, why should they be separated from the rent and subject to VAT, if in fact the landlord does not provide utilities, but purchases them for the activity of providing residential premises for rent, without VAT. The landlord assumes the burden of paying utility bills and this is formulated in the contract as "The amount of rent includes: expenses for paying utility bills: electricity up to ______ kW per month, cold water supply up to ______ m3 per month, hot water supply up to ______ m3 per month, and payment for the maintenance and repair of the dwelling. Maybe you need to rephrase the terms of the contract?

Answer: The terms of the contract do not need to be changed.

In your case, the amount of rent in the contract consists of two parts: a fixed payment (the rent itself) and a variable payment (expenses for utilities consumed by the tenant in billing period), as well as a fee for the maintenance and repair of the premises.

In accordance with paragraphs. 10 p. 2 art. 149 of the Tax Code of the Russian Federation, payment for services for the provision of residential premises for use, exempt from taxation, is only a fee for the use of residential premises and the rental of residential premises. This exemption does not apply to payment for utilities, for the maintenance and repair of residential premises.

The Federal Tax Service expressed the same opinion in a letter dated March 16, 2005 No. 03-4-02 / 371 / 28: if, under the terms of the lease agreement, the cost of rent, in addition to the payment for renting housing (for providing housing), includes the cost of utilities and other services , then only rent for housing is not included in the VAT tax base.

Utilities included in the rent, in accordance with the lease agreement, are taxed in the general manner.

In addition, in accordance with paragraph 4 of Article 170 of the Tax Code of the Russian Federation, the taxpayer is obliged to keep separate records of tax amounts for purchased goods (works, services) used to carry out both taxable and non-taxable (tax-exempt) transactions.

Rationale

How to organize and issue settlements for utility bills for rented property

Payment for services as part of the rent

In this case, the tenant compensates the cost of consumed utilities to the landlord as part of the rent. Possibility of application this option follows from the norms of the legislation regulating lease relations.

There are two ways to include the amount of compensation for utilities in the rent:

The total amount of utilities and energy supplies is determined by actual consumption based on invoices issued by suppliers. The share of expenses compensated by the tenant under the lease agreement (the variable part of the rent) can be determined in the following ways:

1. by the share of premises occupied by the tenant;

2. according to the readings of individual meters;

3. based on the capacity of the equipment used by the tenant and the time of its operation.

Fix the calculation method in the lease agreement (clause 1, article 615 of the Civil Code of the Russian Federation).

When compensation for utility costs is included in the composition of rental payments, separate primary documents for utility payments are not issued. It is enough for the landlord to draw up lease documents and attach copies of utility documents (bills, settlements), if such a condition is provided for in the lease agreement.

How can a landlord reflect the settlements on utility bills for rented property in taxation. The organization applies the general system of taxation

The sale of services for the provision of property for rent from the lessor is recognized as an object of VAT taxation (subclause 1 clause 1 article 146 of the Tax Code of the Russian Federation). The tax base is defined as the cost of services, calculated on the basis of the prices established by the contract (clause 1, article 154, Tax Code of the Russian Federation). In this case, the entire amount of the rent is a payment for the services of the lessor in providing the property for rent. Therefore, the landlord must calculate VAT on the full amount of the rent. An invoice must be issued to the tenant for the entire amount of the rent (clause 3, article 168 of the Tax Code of the Russian Federation). At the same time, depending on the terms of the contract, the rent may include the main (permanent) part, which consists of the cost of the leased area, and an additional (variable) part, including compensation by the tenant for the cost of utilities. In this case, the lessor has the right to indicate in the invoice a single cost of the service or fill in two lines indicating separately the fixed and variable parts. Such clarifications are given by the Federal Tax Service of Russia in paragraph 1 of the letter dated February 4, 2010 No. ШС-22-3/86 (agreed with the Ministry of Finance of Russia).

The amounts of input VAT related to utilities as part of the rent can be deducted by the lessor, since their acquisition relates to activities subject to VAT (letter of the Federal Tax Service of Russia dated February 4, 2010 No. ШС-22-3/86).* In this case, all the necessary conditions for the acceptance of VAT for deduction must be met. The same position was expressed by some courts (see, for example, the decision of the Supreme Arbitration Court of the Russian Federation of August 26, 2009 No. VAS-10032/09, the decisions of the FAS of the Central District of May 29, 2009 No. A23-3029 / 2008A-14-202, of the North Caucasus District of December 21, 2009 No. А63-8994/2004-С4-9).

Situation: whether the landlord has the right to reissue invoices to the tenant for utilities, the costs of which he compensates him. Utility payments are not part of the rent. Contracts with supplying organizations are concluded directly with the lessor

No, not right.

The official position of the regulatory agencies is that in this situation the lessor cannot reissue invoices to the lessee for the cost of services provided to the lessor by supplying organizations (letters of the Ministry of Finance of Russia dated February 10, 2011 No. 03-03-06 / 1/86, dated May 14 2008 No. 03-03-06 / 2/51 and the Federal Tax Service of Russia, dated April 23, 2007 No. ШТ-6-03 / 340). In support of their point of view, they present the following arguments.

The lessor is a subscriber who receives electricity and heat, water from the supply organization. And since he acts as a subscriber, he himself cannot be a supplying organization for the tenant (Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 6, 2000 No. 7349/99, Resolution of the Federal Antimonopoly Service of the West Siberian District of January 28, 2009 No. Ф04-7965 / 2008 ( 20062-A46-25)). In addition, in the invoices issued to the landlord, the tariffs for utilities already include VAT, which the landlord paid to utilities. Therefore, charging VAT on the cost of services that already include tax is contrary to tax legislation (determination of the Supreme Arbitration Court of the Russian Federation dated February 16, 2007 No. 560/07).

This means that the lessor is not entitled to consider compensation for utility costs as a sale for VAT purposes and cannot issue invoices. Therefore, the landlord cannot accrue VAT on the compensated cost of services, and the tenant cannot accept input VAT on this amount for deduction.

The chief accountant advises: there are arguments that allow the landlord to reissue invoices for utilities to the tenant. They are as follows.

Reissuing invoices by the lessor to the tenant does not contradict the norms of tax legislation. Articles of the Tax Code of the Russian Federation do not contain any restrictions on this matter.

In addition, without providing the leased premises with utility services, the tenant organization cannot exercise its right to use the leased premises (Art. , Civil Code of the Russian Federation). Therefore, the provision of public services is inextricably linked with the provision of rental services. Therefore, the landlord has the right to reissue an invoice to the tenant for the cost of utilities, and the tenant - to present VAT on them for deduction.

This position is confirmed by the Presidium of the Supreme Arbitration Court of the Russian Federation in a resolution dated February 25, 2009 No. 12664/08.

Prior to the release of the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation, arbitration practice on this issue was heterogeneous.

Some courts adhered to a point of view that is fully consistent with the position of the Presidium of the Supreme Arbitration Court of the Russian Federation (see, for example, the decisions of the Federal Antimonopoly Service of the Urals District dated June 19, 2008 No. F09-4255 / 08-C2, dated February 29, 2008 No. F09-861 / 08-C2, dated 21 January 2008 No. F09-11295 / 07-S2, Moscow District dated August 26, 2008 No. KA-A40 / 7882-08, dated October 1, 2007 No. KA-A41 / 10014-07). At the same time, some courts confirmed the position of the regulatory agencies (see, for example, the decision of the Supreme Arbitration Court of the Russian Federation dated January 29, 2008 No. 18186/07, FAS resolutions Central District dated February 14, 2008 No. A48-1629 / 07-6, dated October 10, 2007 No. A36-2553 / 2006, East Siberian District dated January 19, 2009 No. A10-1581 / 08-F02-6877 / 08, dated October 30, 2008 No. A10-845 / 08-F02-5264 / 08, A10-845 / 08-F02-5607 / 08, Volga District dated March 4, 2008 No. A65-8421 / 2007-CA1-37, dated February 6, 2008 No. A55-6796 / 2007-53, of the West Siberian District dated January 28, 2009 No. F04-7965 / 2008 (20062-A46-25), dated August 27, 2008 No. F04-5231 / 2008 (10532-A03-25) and dated March 24, 2008 No. F04 -2074/2008(2736-A45-41)).

With the release of the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 10, 2009 No. 6219/08 and of February 25, 2009 No. 12664/08, arbitration practice on the issue under consideration should become uniform. This is evidenced by new court decisions (see, for example, the decisions of the Federal Antimonopoly Service of the Volga-Vyatka District dated June 29, 2009 No. A17-1804 / 2007, the East Siberian District dated June 23, 2009 No. A33-12783 / 08-F02-2566 / 09, Moscow District of July 10, 2009 No. KA-A40 / 6262-09 , Central District of April 29, 2009 No. A48-3884 / 08-17 , Volga District of April 7, 2009 No. A65-20968 / 2008 , West Siberian District of September 15 2009 No. F04-5497 / 2009 (19433-A45-29), North-Western District of March 16, 2009 No. A52-3899 / 2008, Ural District of February 25, 2009 No. F09-10444 / 08-C2).

Letter of the Federal Tax Service of Russia dated March 16, 2005 No. 03-4-02 / 371 / 28 “On exemption from taxation of services for renting residential premises to legal entities”

“The Federal Tax Service on the issue of exemption from taxation of services for renting residential premises to legal entities reports the following.
In accordance with subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), the object of taxation for value added tax is recognized as operations for the sale of goods (works, services) in the territory of the Russian Federation.
Operations that are not subject to taxation (exempted from taxation) are provided for in Article 149 of the Code.
In accordance with subparagraph 10 of paragraph 2 of Article 149 of the Code, the sale (as well as the transfer, performance, provision for own needs) in the territory of the Russian Federation of services for the provision of residential premises for use in the housing stock of all forms of ownership is not subject to taxation.
In accordance with Article 27 of Federal Law No. 118-FZ dated 05.08.2000 "On the Enactment of Part Two of the Tax Code of the Russian Federation and Amendments to Certain Legislative Acts of the Russian Federation on Taxes" until January 1, 2004, exempted from value added tax implementation on the territory of the Russian Federation of services for the provision of residential premises for use in the housing stock of all forms of ownership, services for maintenance, current repairs, overhaul, sanitary maintenance, management of the operation of the household, carried out at the expense of targeted expenditures in the houses of housing construction cooperatives, as well as services for the provision of housing in hostels (with the exception of the use of housing for hotel purposes and rental).
Consequently, transactions for the sale of services for the provision of residential premises for use in the housing stock of all forms of ownership were subject to exemption from taxation by value added tax both before January 1 and after January 1, 2004.
Article 671 of the Civil Code of the Russian Federation establishes that residential premises may be provided for possession and (or) use individuals on the basis of a lease agreement, to legal entities - on the basis of a lease agreement or other agreement. At the same time, in accordance with paragraph 2 of this article, a legal entity may use residential premises only for the residence of citizens.
In view of the foregoing, the exemption from taxation by value added tax of services for the provision of residential premises in the housing stock of all forms of ownership to legal entities under a lease agreement is applied starting from January 1, 2001.

At the same time, it should be taken into account that only the payment for renting housing and the payment for providing residential premises for use by legal entities under a lease agreement are exempt from taxation with value added tax.
In the event that under the terms of the lease agreement it is stipulated that in addition to the payment for renting housing (fee for providing residential premises), the cost of rent includes the cost of utilities or other services, then the tax base for value added tax does not include only rent housing (payment for the provision of housing).
At the same time, paragraph 1 of Article 149 of the Code in relation to foreign citizens or organizations accredited in the Russian Federation provides for a special rule according to which the provision by the lessor of premises on the territory of the Russian Federation to foreign citizens or organizations accredited in the Russian Federation is not subject to taxation (is exempted from taxation). Federation. This provision applies if the legislation of the relevant foreign state establishes a similar procedure for citizens of the Russian Federation and Russian organizations accredited in this foreign state, or if such a rule is provided for by an international treaty (agreement) of the Russian Federation.
Thus, this provision of the Code applies only to foreign citizens or organizations accredited in the Russian Federation.
If the lessor leases premises in the territory of the Russian Federation to foreign citizens or organizations that do not have accreditation in the Russian Federation, tax exemption is not provided and services for the provision of premises for rent are subject to taxation in accordance with the generally established procedure.
At the same time, we draw attention to the following.
In accordance with paragraph 4 of Article 149 of the Code, taxpayers carrying out transactions subject to exemption and transactions not subject to exemption are required to keep separate records of such transactions.
In addition, in accordance with paragraph 4 of Article 170 of the Code, the taxpayer is obliged to keep separate records of tax amounts for purchased goods (works, services), including fixed assets and intangible assets used for the implementation of both taxable and non-taxable (exempt from taxation) transactions.

If the taxpayer does not have separate accounting, the amount of tax on purchased goods (works, services), including fixed assets and intangible assets, is not deductible and is not included in expenses accepted for deduction when calculating income tax.
In the event that the taxpayer, when selling goods (works, services), transactions for the sale of which are not subject to value added tax, issued an invoice to the buyer with the allocated tax amount, then this tax amount is payable to the budget on the basis of paragraph 5 of Article 173 of the Code."

Answered by Alexander Vodovozov

Deputy Head of Tax Department legal entities Federal Tax Service of Russia

“The procedure depends on the type of property, where it is located and who is the balance holder. Since 2019, the centralized submission of property tax returns has been abolished, the tax base which is defined as the average annual cost. But there are exceptions to this rule. For all options where to pay property tax and file a declaration for 2018, see the recommendation.”