According to Art. 256 of the Tax Code of the Russian Federation, capital investments in leased fixed assets in the form of inseparable improvements made 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. Underdepreciated part capital investments 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 used - 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 depreciate the data capital improvements, because the criterion for the application of the new rules is the commissioning 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.
Actual for the 3rd quarter of 2017
Investments in leased property
1.1.49 Differences between separable improvements of the leased property and inseparable ones. It is possible to distinguish separable improvements from inseparable ones by the following criterion: whether damage will be caused to the rented property if you try to separate the improvement made from it.
If the improvement can be separated without harm to property, then such an improvement is separable. For example, dismantling the video surveillance system will not harm the rented building.
This conclusion allows us to draw Articles 623 Civil Code RF. What is meant by causing damage to leased property, this rule of law does not explain. Therefore, the exact criterion for attributing improvements to one or another type can be written in the lease agreement or a specific list of works can be given indicating which type of improvements they relate to. Such a list will help the parties to the transaction understand the definition of the work performed (for example, when resolving disputes about payment for the cost of improvements).
1.1.50 The company has repaired the leased property. It follows from the norms of civil law that the repair of leased property (both current and capital) does not apply to work to improve it. Improvements are new additional properties property without which it existed and could be used for its intended purpose. Repair cannot be recognized as an improvement, since its main goal is to maintain (restore) property in working condition.
Such a conclusion can be drawn on the basis of articles, the Civil Code of the Russian Federation and the Regulation approved. It is confirmed by arbitration practice (see, for example,). We apply this conclusion both for accounting and taxation purposes (Article 1 of the Federal Law of December 6, 2011 No. 402-FZ, Article 11 of the Tax Code of the Russian Federation,).
1.1.51 Depreciation of non-separable leasehold improvements. Inseparable improvements to the leased property may accrue depreciation to the tenant for as long as the lease is in effect. For this, two conditions must be met: the improvements are agreed with the landlord, and he does not compensate them (Article 256, Article 258 of the Tax Code of the Russian Federation).
Depreciation is charged from the month following the month when improvements are put into operation. But at the end of the lease, the tenant is no longer entitled to depreciate. The tenant may not have time to fully depreciate the cost of inseparable improvements. Then the under-depreciated part of capital investments cannot be taken into account when calculating income tax ().
After the renewal of the contract, the tenant will be able to continue accruing depreciation on inseparable improvements. Moreover, this can be done even if no changes have been made to the terms of the contract. That is, initially fixed time the lease has ended, but the tenant continues to use the property because the landlord does not mind. In this case, the contract is considered to be renewed on the same terms for indefinite term ().
But if the tenant is ready to defend his position in court, he can apply the depreciation premium to the inseparable improvements of the leased property. This decision can be justified by the following arguments.
Capital investments in inseparable improvements to the leased property, which are made with the consent of the lessor and are not reimbursed to the lessee under the terms of the contract, are recognized as depreciable property (
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 an indefinite period on the 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 is not contained, the tenant, after the termination of the lease agreement (see the decision of the Supreme Arbitration Court of the Russian Federation of 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 rent(Clause 8 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 29, 2001 N 65, determination of the Supreme Arbitration Court of the Russian Federation of 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.
Dealing with tax issues and accounting it should be borne in mind that only investments in leased property that are of a capital 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 a letter dated November 21, 2012 N 03-03-06 / 1/601, 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.
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 attribution of one or another capital 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 |
