Valuation of gratuitous property
When receiving property free of charge, the company does not incur costs for its acquisition. However, it is still necessary to register the received values. Such property is included in non-operating income, and its valuation is carried out based on market prices, but not lower than the residual value (for depreciable property) and not lower than the cost of acquisition or production (for other property) (clause 8 of Article 250 of the Tax Code of the Russian Federation).
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Free right of use. Confirmation of market value
The company received free premises from the founder. What documents do you need to confirm the cost of 1 sq. m to calculate non-operating income? Is the information obtained on the Internet sufficient?
According to Art.
689 of the Civil Code of the Russian Federation , under an agreement for gratuitous use (loan agreement),
one party (
the lender
) undertakes to transfer or transfers an item for gratuitous temporary use to the other party (
the borrower
), and the latter undertakes to return the same item in the condition in which it received it, taking into account normal wear and tear or in contract condition.
The right to transfer a thing for free use belongs to its owner and other persons authorized to do so by law or by the owner.
With the gratuitous use of property, the borrower experiences non-operating income
.
Art. 248 Tax Code of the Russian Federation
it is established that property (work, services) or
property rights are considered received free of charge
if the receipt of this property (work, services) or property rights is not associated with the occurrence of an obligation on the recipient to transfer the property (property rights) to the transferor (perform work for the transferor, provide services to the transferor).
Income in the form of gratuitously received property (work, services) or property rights
, except for the cases specified in
Art.
251 of the Tax Code of the Russian Federation are
recognized as non-operating income
(
clause 8 of Article 250 of the Tax Code of the Russian Federation
).
Upon receipt of property (work, services) free assessment of income
carried out on the basis
of market prices
determined taking into account the provisions
of Art.
40 of the Tax Code of the Russian Federation , but not lower than that determined in accordance with Chapter. 25 of the Tax Code of the Russian Federation, residual value - for depreciable property and not less than the cost of production (purchase) - for other property (work performed, services rendered).
Information on prices must be confirmed by the taxpayer - the recipient of the property (work, services) documented or through an independent assessment.
Chapter 25 of the Tax Code of the Russian Federation does not say anything about whether the specified principle of assessing income is applied when assessing income in the form of gratuitously received property rights
.
Presidium of the Supreme Arbitration Court of the Russian Federation
in Information Letter No. 98 dated December 22, 2005, indicated that
the amount of economic benefit
received by the taxpayer in connection
with the gratuitous use of non-residential premises qualifies as non-operating income
taken into account when calculating income tax.
The court rejects the position that there are no relevant provisions in Chapter 25 of the Tax Code of the Russian Federation that would make it possible to estimate the amount of income from the gratuitous use of property.
The applicable norm in this case is clause 8 of Art. 250 Tax Code of the Russian Federation
.
Application of paragraph 8 of Art. 250 Tax Code of the Russian Federation
is not limited only to property rights representing claims against third parties.
This provision also applies when obtaining the right to use a thing free of charge
.
established by this norm for determining income when receiving property free of charge
, which consists in its assessment based on market prices determined taking into account the provisions
of Art.
40 of the Tax Code of the Russian Federation ,
is also subject to application when assessing income arising from the gratuitous receipt of property rights, including the right to use a thing
.
The Ministry of Finance of the Russian Federation also emphasizes that when receiving property under a free use agreement, an organization receives the right to use this property free of charge. Therefore, for profit tax purposes, receiving property for gratuitous use should be considered as gratuitous receipt of property rights
.
Thus, a taxpayer who receives property for free use under an agreement includes income
in the form of a freely received right to use property,
determined on the basis of market prices for the rental of identical property
(letter dated December 11, 2009 No. 03-03-06/1/804).
P.p. 11 clause 1 art. 251 Tax Code of the Russian Federation
It has been established that when determining the tax base for income tax,
income in the form of
property
received by a Russian organization free of charge is not taken into account
– from an organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;
– from an organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving organization;
– from an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of this individual.
In letter dated March 17, 2008 No. 03-03-06/1/183, the Ministry of Finance of the Russian Federation draws attention to the fact that the exemption of income on the basis of this norm applies only to the gratuitous receipt of property
and
does not apply to cases of gratuitous receipt of property rights, as well as works and (or) services
.
Thus, if the founder transfers to his company (or the company transfers to the founder) property rights
work
for her free of charge or provides
services
, then to exempt the value of the specified property rights, works or services from taxation on the basis of
paragraphs.
11 clause 1 art. 251 of the Tax Code of the Russian Federation should not be calculated, regardless of what share the founder has in the authorized capital of the company.
Methods for determining the market price are established by Art. 40 Tax Code of the Russian Federation
.
The market price is determined taking into account the provisions provided for in paragraphs 4-11
of Art.
40 Tax Code of the Russian Federation .
In this case,
price premiums or discounts
when concluding transactions between non-related parties are taken into account .
Market price of goods (work, services)
the price established by the interaction of supply and demand
on the market of identical
(and in their absence,
homogeneous
) goods (works, services)
in comparable economic
(commercial)
conditions
.
When determining
and recognition
of the market price
of a product, work or service,
official sources of information on market prices for goods, work or services and stock exchange quotations are used
.
If not available on the relevant market
of goods, works or services,
transactions for identical (homogeneous) goods, works, services
or due to the lack of supply of such goods, works or services on this market, as well as if it is impossible to determine the appropriate prices due to
the absence or inaccessibility of information sources,
is used to determine the market price the second method is
the subsequent sales price method
.
Third
–
costly
–
the method
is used
when it is impossible to use the subsequent sales price method
(in particular,
in the absence of information about the price of goods
, works or services subsequently sold by the buyer).
The Ministry of Finance of the Russian Federation indicates that the Tax Code of the Russian Federation does not define a list of official sources of information on market prices
.
According to officials, when determining market prices, price information published in official publications of authorized bodies, including statistics and pricing bodies, can be used
.
At the same time, information on market prices
goods, works, services contained in the specified official sources
do not include information on the cost
of goods
provided by organizations engaged in collecting and processing information without a special indication in regulatory legal acts of the status of its publication as an official source
(letters dated 10.05. 2011 No. 03-02-07/1-160, dated December 31, 2009 No. 03-02-08/95).
According to paragraph 2 of Art.
40 of the Tax Code of the Russian Federation, the tax authorities verify the correct application of prices for tax purposes
.
Tax officers
Often in cases similar to the one under consideration,
the weighted average price method is used
.
Presidium of the Supreme Arbitration Court of the Russian Federation
in Information Letter No. 71 dated March 17, 2003, he stated that
additional tax assessment on transactions whose price is determined based on market prices cannot be made based on the average sales price
.
Federal arbitration courts also indicate that the average price for selling services under contracts is not a market price
in the sense established by the provisions
of Art.
40 Tax Code of the Russian Federation .
For example, the tax inspectorate, when assessing additional taxes to the company, used the information contained in the certificate of the Chamber of Commerce and Industry. This certificate contains pricing information
, provided by the reference service for goods and services, as well as
obtained using information tools on the Internet
.
As a result of analyzing the data specified in the certificate, the court came to the conclusion that it contained average prices for services
for the transfer of property for rent, which contradicts the requirements
of Art.
40 of the Tax Code of the Russian Federation (resolution
of the Federal Antimonopoly Service of the North Caucasus District
dated 06/03/2008 No. F08-2964/2008).
FAS Ural District
believes that:
– cannot be used when determining the market price
as sources of information
Internet sites
that contain only information about supply, without relationship with demand;
– Internet data cannot be recognized as an official source
;
– when leasing property (free use), the results of comparison of identical rented premises must be taken into account
(for example, area, location in a closed area, inability to use the Internet, as well as restrictions on the use of cellular communications on the territory of the enterprise);
– all factors influencing the determination of the market value of rent
, such as the level of commercial attractiveness for a potential tenant, the quality of the premises, the convenience of access roads and the availability of additional engineering communications, the intended purpose;
– determination of market rent per 1 sq. m cannot be made on the basis of a comparative approach using an information (comparative) assessment method
.
To calculate the average market value of analogues
, information obtained not from official sources, but from real estate agencies, from periodicals “From Hand to Hand”, “Commercial Bulletin”, “Expert” magazine, price lists of other organizations, the
Internet
cannot resources , which are “offer prices” and may not correspond to market prices;
– rental prices for similar properties with similar characteristics should be studied
(location, area, etc.), information on payment terms, terms of fulfillment of obligations, as well as other reasonable conditions that could affect prices (resolution of the
Federal Antimonopoly Service of the Ural District
dated April 12, 2011 No. F09-1805/11- C3, dated 05/12/2011 No. Ф09-1938/11-С3, dated 12/20/2010 No. Ф09-10577/10-С3, dated 05/13/2009 No. Ф09-2927/09-С3).
use information from the Internet as market prices
.
But it is likely that you will overestimate your taxable income, because, as the courts note, the price on the Internet is the asking price.
If you determine the market price based on the parameters specified by the courts
, then tax claims cannot be avoided.
But given the current arbitration practice in our region that is not in favor of the tax authorities, the tax inspectorate is unlikely to risk taking the case to court.
How can a contractor take into account the gratuitous provision of services for income tax purposes?
If you provided services free of charge, then you cannot take into account the costs associated with their provision when calculating income tax (Clause 16, Article 270 of the Tax Code of the Russian Federation).
Please note that there is widespread advice that you can take into account in your income tax expenses the amount of VAT that is accrued in connection with the gratuitous provision of services. Such advice is risky, since, according to the Russian Ministry of Finance, the amount of accrued VAT is not taken into account in expenses on the basis of clause 16 of Art. 270 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated March 11, 2010 N 03-03-06/1/123).
How can a donor take into account transactions under a gift agreement for income tax purposes?
If you transferred property (property rights) under a gift agreement, then its value and expenses associated with such transfer cannot be taken into account when calculating income tax (Clause 16, Article 270 of the Tax Code of the Russian Federation).
Please note that there is widespread advice that you can include in your income tax expenses the amount of VAT that is accrued in connection with the gratuitous transfer. Such advice is risky, since, according to the Russian Ministry of Finance, the amount of accrued VAT is not taken into account in expenses on the basis of clause 16 of Art. 270 of the Tax Code of the Russian Federation (Letter of the Ministry of Finance of Russia dated March 11, 2010 N 03-03-06/1/123).
If you transfer a fixed asset under a gift agreement, then you do not need to restore the depreciation bonus on it (Letter of the Ministry of Finance of Russia dated September 28, 2012 N 03-03-06/1/510).
How can a lender take into account the transfer of property for free use when calculating income tax?
The cost of such property, as well as the costs associated with its transfer, cannot be taken into account when calculating income tax (clause 16 of Article 270 of the Tax Code of the Russian Federation, Letter of the Ministry of Finance of Russia dated 01.02.2013 N 03-03-06/1/2069).
Moreover, if you transfer a fixed asset for free use, then you need to stop accruing depreciation on it (clause 3 of Article 256 of the Tax Code of the Russian Federation).
This requirement does not apply to property that, according to the legislation of the Russian Federation, you must transfer for use to state authorities and authorities, local governments, state and municipal institutions, state and municipal unitary enterprises (clause 3 of Article 256 of the Tax Code of the Russian Federation).
Depreciation accrual stops from the month following the month in which you transferred the property for free use, and resumes from the month following the month when this property was returned to you (clauses 6, 7 of Article 259.1, clause 8 , 9 Article 259.2 of the Tax Code of the Russian Federation).
If you pay property tax, transport or land taxes on property transferred for free use, then you can take these taxes into account in other income tax expenses (clause 1, clause 1, article 264 of the Tax Code of the Russian Federation).
Are charitable expenses taken into account for income tax purposes?
Charity expenses (the cost of donated property, work, services, property rights and other expenses) cannot be taken into account for the purpose of calculating income tax.
Donations are not expenses under Sec. 25 Tax Code of the Russian Federation. They must be carried out in a disinterested form (free of charge or on preferential terms). Attributing them to expenses when calculating income tax would mean carrying out charity at the expense of the budget. This opinion was expressed by the Ministry of Finance of Russia in Letters dated January 23, 2018 N 03-03-07/3443, dated April 6, 2015 N 03-03-07/19136.
If, as part of a charity, you transfer a fixed asset for which you applied a depreciation bonus, then you do not need to restore this bonus (Letter of the Ministry of Finance of Russia dated September 28, 2012 N 03-03-06/1/510).
How to avoid double taxation when accounting for property received free of charge
Clause 1 of Article 3 of the Tax Code of the Russian Federation contains a rule on the principle of equal taxation, which means that obtaining the same economic results entails the same burden. This principle is violated in a situation where one organization can include in expenses the costs incurred with funds received free of charge, while another cannot include in expenses the cost of property received free of charge. In this situation, the legislation placed taxpayers in an unequal position. In other words, the principle of equality is violated when legislation places one category of taxpayers in conditions that differ from the conditions provided for other taxpayers, in the absence of significant differences between them.
Free receipt of fixed assets
Also, organizations and entrepreneurs using the simplified tax system do not charge VAT on gratuitous transfers. Ordinary citizens do not do this either (Article 143 of the Tax Code of the Russian Federation). However, the tax will have to be paid by the donor, who is the payer of UTII. The fact is that this special regime applies to certain types of business activities. They are listed in clause 2 of Article 346.26 of the Tax Code of the Russian Federation. And with the gratuitous transfer of an object, a single tax does not arise. Thus, this operation falls under OSNO and the transferring organization (individual - individual entrepreneur) must calculate VAT from it. Similar explanations can be found in letters from the Ministry of Finance of Russia: dated 08/01/2007 No. 03-11-04/3/307, dated 07/27/2007 No. 03-11-04/3/298, dated 02/09/2007 No. 03-11-05/28, dated 03/27/2006 No. 03-11-04/3/155, dated 03/02/2006 No. 03-11-04/3/104, etc.
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