The Tax Code prohibits organizations from taking into account in expenses the cost of acquired fixed assets (fixed assets) at a time. This cost is repaid (that is, included in costs) gradually, through depreciation. This procedure for recognizing expenses applies regardless of whether the taxpayer purchases new or previously used property. And yet, when depreciating used OSes, some features should be taken into account. For example, clause 12 of Art. 258 of the Tax Code of the Russian Federation establishes that the taxpayer must classify the purchased object as belonging to the same depreciation group as its former owner (and the amount of not only monthly depreciation, but also the depreciation premium depends on the depreciation group).
Does the taxpayer always have to comply with the above-mentioned legal requirement? Is it possible to choose a depreciation group for a used fixed asset that is different from the one in which it was located by the previous owner? If so, under what circumstances is this allowed? Let's try to answer the questions posed.
Tax Code of the Russian Federation on the distribution of fixed assets by depreciation groups
By virtue of paragraph 1 of Art. 252 of the Tax Code of the Russian Federation , when calculating income tax, the taxpayer reduces the income received by the amount of expenses incurred, with the exception of those specified in Art. 270 Tax Code of the Russian Federation . The costs of acquiring depreciable property are precisely named in the said norm ( clause 5, clause 1 ). But this does not mean that they are not taken into account at all when determining the tax base. For these costs, the law provides for a special write-off procedure - through depreciation charges, which, according to clause 2 of Art. 259 of the Tax Code of the Russian Federation are recognized for tax purposes on a monthly basis, depending on the method of depreciation of fixed assets chosen by the organization (linear or non-linear).
For your information
In relation to such fixed assets as buildings, structures, transmission devices belonging to the 8th - 10th depreciation groups, the law allows the use of only the linear method of calculating depreciation ( clause 3 of Article 259 of the Tax Code of the Russian Federation ).
Note that when calculating depreciation (regardless of the method of its calculation), the useful life of the fixed asset is of paramount importance. When applying the linear method, it determines the value of the depreciation rate, while the nonlinear method determines the depreciation group, the total balance of which determines the amount of monthly depreciation charges.
According to paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, the useful life refers to the period during which an asset serves to fulfill the goals of the organization. This period forms the basis for the distribution of fixed assets into ten depreciation groups, which are indicated in paragraph 3 of this norm.
note
By virtue of paragraph 1 of Art. 258 of the Tax Code of the Russian Federation , the taxpayer determines the useful life of an asset independently on the date of its commissioning in accordance with the provisions of the said article and taking into account the Classification of OS [1]. Moreover, this norm does not contain any reservations (for example, unless otherwise stated...). Hence the conclusion: the assignment of a fixed asset to one or another depreciation group is the exclusive prerogative of the taxpayer - the owner of the fixed asset. This means that no one else but him can have anything to do with the process of determining the depreciation group.
Meanwhile, the provisions of paragraph 12 of Art. 258 of the Tax Code of the Russian Federation, this advantage of the owner of an asset, albeit indirectly, is limited . This norm instructs the organization to classify the purchased used item to the depreciation group (subgroup) in which it was included by the previous owner. Of course, the definition of personal investment property of a fixed asset is not directly discussed here. But, we repeat, the choice of depreciation group depends on this indicator.
It should be noted that the principle of distributing fixed assets into depreciation groups established in the mentioned norm applies only to property that, before its purchase by the taxpayer, participated in the activities of other (one or more) business entities. In other words, clause 12 of Art. 258 of the Tax Code of the Russian Federation is a special norm .
In turn, the general rules for classifying fixed assets to one or another depreciation group are enshrined in clause 1 of Art. 258 Tax Code of the Russian Federation . And as the Constitutional Court of the Russian Federation indicated in its Determination No. 199-O , special rules of law have precedence over general ones. It turns out that, although the law gives the taxpayer the right to independently establish SPI (and, consequently, determine the depreciation group), in relation to non-new objects this right can be exercised subject to the restrictions provided for in paragraph 12 of Art. 258 Tax Code of the Russian Federation .
Conclusion
When putting into operation a purchased fixed asset that has been used, the taxpayer can independently determine its useful life, without going beyond the limits of the SPI provided for by the Classification of fixed assets for the depreciation group to which this fixed asset belonged to the previous owner. That is, the asset throughout the entire period of its participation in the economic activities of all owners must be in the same depreciation group.
So can a taxpayer neglect the norms of paragraph 12 of Art. 258 of the Tax Code of the Russian Federation when determining the depreciation group for a used fixed asset? Yes maybe. This, according to the author, is the answer to the question posed. In some cases, this is expressly provided for by tax regulations. There are situations that are not regulated by law, but the courts, when resolving them, come to the stated conclusion. Let's consider these cases and situations.
A few words about the two editions of the OS Classification.
So, the taxpayer determines the depreciation rate for purchased used assets, taking into account the SPI established by the previous owner. Otherwise, he can independently determine the SPI of purchased OS, including used ones, in the generally established manner (see letters of the Ministry of Finance of Russia dated October 3, 2017 No. 03-03-06/1/64282, dated August 11, 2017 No. 03-03 -06/1/51573).
In the listed letters, the financial department also emphasized that on the issue of the procedure for applying the Classification of OS as amended by Decree of the Government of the Russian Federation dated July 7, 2016 No. 640 for the purposes of calculating income tax, one should be guided by the Letter of the Ministry of Finance of Russia dated November 8, 2016 No. 03-03-RZ/65124, which states that in relation to OS put into operation before 01/01/2017, the SPI determined by the taxpayer when putting them into operation is applied.
Let us explain what is meant here.
We remind readers that from 01/01/2017, the above-mentioned resolution made changes to the OS Classification due to the emergence of a new OKOF.
Since this date, not only new objects have appeared in the FA Classification, but also there have been (minor) movements of individual fixed assets from group to group, which led to an increase or decrease in their minimum and maximum SPI.
For example, general-purpose trucks with a carrying capacity of over 3.5 to 5 tons, until January 1, 2017, according to the old OKOF, had code 15 3410194 and belonged to the position “Truck vehicles, road tractors for semi-trailers (general purpose vehicles: flatbeds, vans, tractor-trailers; dump trucks)” were thus included in the fourth depreciation group (with SPI from 5 to 7 years inclusive).
From 01/01/2017 for trucks with a technically permissible maximum weight of over 3.5 tons, but not more than 12 tons, the OKOF code is set to either 310.29.10.42.112 (with a gasoline engine) or 310.29.10.41.112 (with a diesel engine) ). Thus, now these cars are included in the fifth depreciation group (with SPI from 7 to 10 years inclusive).
Let’s assume that the previous owner put a fixed asset into operation before January 1, 2017, guided by the old edition of the OS Classification, and included the object in one depreciation group, and the new owner, purchasing a used object after this date, discovers that the fixed asset “moved” to another depreciation group. How to be in this case?
An organization can focus on the SPI established by the previous owner, or set a different period, but within the framework of the depreciation group in which the asset was at the time of its commissioning. We believe that this is exactly what the Ministry of Finance had in mind in the above-mentioned Letter dated November 8, 2016 No. 03-03-RZ/65124.
If the taxpayer purchases a fully depreciated object
Let us note that the law provides for an exception to the above special rule for determining SPI for used fixed assets. True, it only to taxpayers who use the straight-line depreciation method.
According to paragraph 7 of Art. 258 of the Tax Code of the Russian Federation, these persons can establish SPI taking into account the period of actual operation of the acquired OS asset by the former owners. So, if this object participated in the activities of the latter for a period equal to or exceeding the maximum useful life provided for by the Classification of fixed assets for the corresponding depreciation group, the taxpayer has the right to independently determine the named period, taking into account safety requirements and other factors.
From the above, it follows that in such a situation (as a rule, it occurs when purchasing a fully depreciated object), an organization can assign a used OS to a depreciation group different from the one in which it was located by the previous owner. This is the first possible case when the prescription of paragraph 12 of Art. 258 of the Tax Code of the Russian Federation does not require execution. And it is directly provided for by law[2]. Are there others?
If the taxpayer does not have complete information about the purchase
From the literal interpretation of paragraph 12 of Art. 258 of the Tax Code of the Russian Federation it follows that in order to comply with the provisions contained therein, the buyer must know in which depreciation group the seller included the fixed asset during the period of its use in business activities.
Agree, in the absence of this information, the norm loses all meaning. Such information can be gleaned from documents accompanying a transaction for the purchase and sale of property, for example, from an act of acceptance and transfer of fixed assets. It can be a primary accounting document independently developed by the transferring party or a unified form OS-1 (OS-1a - for buildings and structures). It is not prohibited to document transactions for the sale (purchase) of fixed assets using a unified transfer document (UTD). The main thing is that the primary documents contain, among other things, information about the asset established by the former owner of the SPI, the depreciation group in which it was included, as well as the actual period of its operation before transfer to the new owner.
The unified forms OS-1 and OS-1a provide for the reflection of the listed information. If the transferring party uses UTD or its own primary document, the taxpayer-buyer must ensure that these documents contain the information necessary for him to fulfill the requirements specified in paragraph 12 of Art. 258 Tax Code of the Russian Federation . If they are missing or simply not provided for completion, we believe that the organization should take all possible measures to obtain them. Otherwise, the taxpayer will not be able to take advantage of the special (certainly beneficial for him) rules for depreciation of used fixed assets (when using the straight-line method).
In such a situation, in the author’s opinion, the acquired property will not be considered used. This means that the useful life for it should be established as for a new object: independently by the taxpayer in accordance with the OS Classification , but without taking into account the period of operation by the previous owner (see Letter of the Ministry of Finance of Russia dated July 16, 2009 No. 03-03-06/2/141 ) .
Therefore, in the absence of relevant information about the purchase, the taxpayer will be forced to neglect the provisions of paragraph 12 of Art. 258 Tax Code of the Russian Federation . Moreover, tax authorities are unlikely to make claims in this regard. After all, a new object takes longer to depreciate than a used one; accordingly, this approach will not lead to an overestimation of expenses and, as a result, an underestimation of the tax base for profits.
For your information
According to the arbitrators of the Federal Antimonopoly Service of Moscow ( Resolution dated April 22, 2013 in case No. A40-80677/12‑90‑424 ), if, when purchasing used property, it is impossible to determine the SPI established by the previous owner, and then to which depreciation group it belongs related, the taxpayer independently sets this period in accordance with the requirements of Art. 258 Tax Code of the Russian Federation and OS Classifications . At the same time, he is not deprived of the right to reduce this period for the period of actual operation of the object by the previous owner.
RESULTS
Purchasing used fixed assets gives the organization a number of advantages, such as:
- the market price of these fixed assets is usually lower than that of new ones;
- The useful life of such fixed assets may be reduced, and, consequently, used fixed assets may be fully depreciated earlier than new ones.
In order to take into account the period of actual operation of the fixed asset by the previous owner, documentary evidence of the specified period is required. The most reliable document for confirmation will be the Certificate of Acceptance and Transfer of an OS Object. In the absence of these documents, there is a likely risk of a dispute with the tax office and litigation. As for accounting for fixed assets, we recommend that both accounting and tax accounting establish the same initial cost, useful life and depreciation methods, which will bring accounting and tax accounting as close as possible.
Read on this topic: Property tax 2013 Property tax 2021 Depreciation bonus as a way to optimize
Firmmaker, November 2014 (updated annually) Svetlana Markina (Mityukhina), Irina Bazyleva When using the material, reference is required
If the former owner made a mistake with the choice of depreciation group
Let us make a reservation that such a situation is not regulated by law, and therefore is controversial (as confirmed by judicial practice).
Position of the competent authorities
Unfortunately, there are few explanations from officials on this situation (despite its relevance).
Let's give just one example - Letter of the Ministry of Finance of Russia dated March 18, 2011 No. 03-03-06/1/144 . The taxpayer asked the department whether he could include a car, classified by the previous owner in the fifth depreciation group, in the third , since, according to the technical documentation, the vehicle should be included in the last of these groups.
Here is the official's answer: the taxpayer has the right to include an asset in the depreciation group to which it belongs (you can read - must belong), and establish SPI in accordance with this group, taking into account the documented period of operation of this object by the previous owner.
We believe there is no doubt that the Ministry of Finance’s answer is positive: the taxpayer can correct the mistake of the previous owner of the OS by placing the latter, upon acceptance into operation, in the depreciation group that is established for him by regulation. And this is even despite the fact that tax authorities (most likely) in this situation will have claims against the organization. After all, if she takes into account the explanations of financiers, she will be able to speed up the write-off of the cost of a fixed asset by setting a shorter useful life than it should have when fulfilling the requirements established by clause 12 of Art. 258 Tax Code of the Russian Federation . By the way, the authors of the letter seemed to have forgotten about this norm - there is no mention of it.
And further. From the response of the Ministry of Finance, it can be seen that eliminating a mistake made by the previous owner of depreciable property is a right rather than an obligation of the new owner. Given this interpretation, taxpayers can take a position that is convenient for themselves. If it is beneficial for the acquirer of the OS (as in the situation discussed in the letter), he can neglect clause 12 of Art. 258 of the Tax Code of the Russian Federation , if not, firmly believe (while convincing tax authorities and judges) that this norm is imperative [3] and obliges the taxpayer to classify a used item only to the depreciation group in which it was included from the seller.
What about the judges?
As arbitration practice in recent years shows, courts do not agree with this approach. In their opinion, if the former owner makes a mistake, the new owner not only can, but must eliminate it. Although, let us make a reservation, there are judicial acts with the opposite approach.
Let us consider in detail two tax disputes, in the resolution of which the arbitrators took the first of the announced positions, siding with the inspectors.
| Resolution of the AS SKO dated 05/08/2015 No. F08-2247/2015 in case No. A53-27549/2013 | |
| Facts identified by the tax authority during the audit | The taxpayer acquired several non-new non-residential buildings, which, according to the OS Classification, are classified in the eighth depreciation group. The previous owner, who bought the property not for the purpose of use in production activities, but for resale, took it into account as part of the sixth depreciation group. Guided by paragraph 12 of Art. 258 of the Tax Code of the Russian Federation , the audited organization included the buildings in the same depreciation group as their former owner. This allowed her (in the opinion of tax authorities, illegally) to take into account for profit tax purposes 30% of the cost of buildings at a time instead of 10%, as provided for in paragraph 9 of Art. 258 of the Tax Code of the Russian Federation for fixed assets belonging to the eighth depreciation group. The amount of illegally applied depreciation bonus amounted to 1.5 million rubles, and the underestimated income tax amounted to 298 thousand rubles. |
| Taxpayer position | Based on the imperative norm of paragraph 12 of Art. 258 of the Tax Code of the Russian Federation , a taxpayer who purchased used fixed assets does not have the right to independently change their useful life and depreciation group in the event of an error by the previous owner. |
| Important. The taxpayer himself did not deny that the disputed objects should actually belong not to the sixth, but to the eighth depreciation group | |
| Judges' position | The arbitrators rejected the society's argument about the need strict compliance with special requirements established clause 12 art. 258 Tax Code of the Russian Federation . According to the judges, the former owner of the property erroneously determined the depreciation group (subgroup) doesn't release taxpayer from assigned to clause 1 art. 258 Tax Code of the Russian Federation obligations to take into account acquired fixed assets as part of the depreciation group (subgroup) to which they must be assigned in accordance with OS classification. A different interpretation of the provisions of these norms contradicts those recorded in pp. 1 clause 1 art. 23 And clause 1 art. 38 Tax Code of the Russian Federation the principles of taxpayers having an obligation to pay legally established taxes. Thus, the company has no grounds for applying other elements of taxation solely for formal grounds, indicating erroneous accounting of taxable objects by the previous owners of fixed assets. Important. When making decisions, the judges took into account that the original owner of the buildings simultaneously (in September) sold production equipment to the person being inspected, and the buildings in which this equipment was most likely located - to a third organization. The latter, having registered ownership of the real estate, sold them to the taxpayer in November of the same year. Thus, the actions of the participants in these transactions reveal signs of a scheme aimed at obtaining unjustified tax benefits, including in the form of overestimation of depreciation bonus |
In the next tax dispute, the inspectors were supported not only by district, but also by senior arbitrators, as evidenced by the Ruling of the Supreme Court of the Russian Federation dated April 1, 2015 No. 304-KG15-1793 .
| Resolution of the AS ZSO dated December 11, 2014 No. F04-12840/2014 in case No. A45-1386/2014 | |
| Facts identified by the tax authority during the audit | The company purchased from taxpayers using the simplified tax system 16 gas stations, which, based on the primary documents of the transferring party, as well as by virtue of clause 12 of Art. 258 of the Tax Code of the Russian Federation were included in the seventh depreciation group. For each of the objects, the taxpayer applied a depreciation bonus in the amount of 30% of their value. During the inspection |
| The tax authority carried out an appropriate examination, the results of which established that one gas station should be assigned to the tenth depreciation group, the rest - to the eighth . In this regard, according to the inspectorate, the company had the right to a one-time write-off when calculating income tax of only 10% of the expenses associated with the acquisition of a gas station. The amount of depreciation charges and depreciation premium recognized in excess as expenses amounted to 233 million rubles, and the understated income tax amounted to 46.7 million rubles. | |
| Taxpayer position | Changing the depreciation group for acquired second-hand fixed assets is contrary to clause 12 of Art. 258 Tax Code of the Russian Federation . The taxpayer does not have the obligation to check and correct the IFI established by the previous owner of the named objects |
| Judges' position | The arbitrators rejected the company's argument that in relation to used fixed assets, under any circumstances, a special rule applies, providing that they are included in the depreciation group (subgroup) to which they were assigned by the previous owner. In a situation where the latter erroneously determined a depreciation group (subgroup), the taxpayer is obliged to take into account used fixed assets as part of the depreciation group (subgroup) in which they should have been included by the former owner according to the Classification of fixed assets . Important. When rendering the verdict, the judges took into account that the taxpayer’s accounting policy directly states : if the previous owner incorrectly determined the SPI of an asset, in order to avoid distortion of the amounts of accrued depreciation when putting this object into operation, the SPI should be established based on the Classification of the OS . This implies that the company carries out a number of activities aimed at verifying the correctness of the seller’s determination of the depreciation group of the alienated property. These measures were carried out by the taxpayer, in the opinion of the court, formally . As a result, the organization itself, and not in pursuance of the imperative norm of paragraph 12 of Art. 258 of the Tax Code of the Russian Federation classified the disputed objects into the seventh depreciation group. And this despite the fact that its balance sheet included objects with similar technical characteristics (gas station operator buildings), which are included in the eighth depreciation group |
The analyzed tax disputes are not the only ones. There are also examples of court decisions in which arbitrators came to the conclusion that the fact that the previous owner erroneously classified fixed assets into one or another depreciation group does not give the new owner grounds to charge depreciation and apply a depreciation bonus based on incorrect data (see decisions of the AS PO dated 06.03 .2015 No. F06-21153/2013 in case No. A55-4802/2014 , FAS MO dated July 31, 2013 in case No. A40-121051/12-140-746 ).
However, there are (albeit isolated) judicial acts with the opposite approach. Example - Resolution of the Federal Antimonopoly Service dated October 24, 2013 in case No. A65-24092/2012 . In this dispute, the arbitrators considered the inspectorate’s statements about the need to check and correct the SPI established by the previous owner when purchasing a used fixed asset to be erroneous, since tax legislation does not stipulate such an obligation.
And yet, more numerous and more recent judicial practice, we believe, gives grounds for drawing the following conclusion.
Conclusion
In order to avoid distortion of the amounts of accrued depreciation and depreciation bonus, the taxpayer should include the acquired used property in the depreciation group to which it should belong in accordance with the OS Classification , regardless of which group it was in by the former owner.
