Taxation of leasing operations: procedure and conditions for collecting taxes

Leasing. Tax accounting. Accounting for the difference between payments and depreciation.

Good afternoon Please tell me this is the situation. The car was purchased on lease. It is on our lessee's balance sheet. The term of the leasing agreement is 2 years, the depreciation period is 3 years. The payment schedule is uneven (with a decrease in the amount of lease payments towards the end of the contract term). The question is this.

Our monthly expenses include: 1). monthly depreciation amount 2). the amount of the difference between the lease payment and depreciation

The moment has come when point 2 - the difference has become a negative number (the leasing payment is less than the depreciation amount) And now only the depreciation amount goes to expenses for NU. But as a result, it turns out that the amount of costs under the agreement in NU will exceed the amount of the leasing agreement, which will violate paragraph 5 of Article 252 of the Tax Code of the Russian Federation “.. For the purposes of this chapter, the amounts reflected as part of the expenses of taxpayers are not subject to re-inclusion in the composition of its expenses.”

I read that in this case, the amount of accrued depreciation can be adjusted to the resulting negative difference between the lease payment and depreciation. And then there will be no “unfairly” reduced tax base for profits.

How correct is this? What to do in such a situation? I really hope for your advice.

are you using PBU 18?

If you apply, then you have the same amount under the leasing agreement, which should ultimately be accepted as expenses (through depreciation, etc.) in both accounting and tax accounting. All differences that arise are temporary.

It’s just that at first you accept a slightly larger amount of expenses in tax accounting, you should reflect the temporary difference: d 68 to 77 - the occurrence of IT is reflected due to the fact that the amount of expenses in tax accounting is now greater than the amount of depreciation for accounting purposes. (monthly, as long as you have NU expenses greater than BU expenses).

Because your difference (excess) between lease payments and depreciation is not reflected in accounting as expenses now.

Then, when you only have the amount of depreciation left in the expenses of the current period in accounting, your tax account recognizes a smaller amount, and, accordingly, IT (deferred tax liability) must be offset.

d 77 to 68 for the amount of discrepancies between BU and NU *20%.

Olga Cher. said: 06/16/2013 21:50

If you do not adjust the amount of depreciation, then the expenses in NU (depreciation + leasing payment) will exceed the expenses under the contract in BU (which are simply written off through depreciation) by approximately 500 thousand rubles.

After purchasing the car, there will be no more expenses in NU; only depreciation will continue in BU. But this difference will remain 500 thousand rubles.

Anonymous said: 06/17/2013 10:52

Olga Cher. said: 06/17/2013 12:28

yes, in BU the initial cost is the sum of all leasing payments in NU; the initial cost is the sum of the Lessor's expenses for its acquisition, construction, delivery, production and bringing it to a state in which it is suitable for use, excluding VAT

monthly in BU expenses include depreciation; monthly in NU expenses include depreciation + the difference between leasing. payment and depreciation

The first leasing payment is very large under the contract, it immediately goes into expenses for NU, then depreciation + leasing. payments and after 12 months the expenses for NU exceed the amount under the contract

So there was a question about the fact that the tax base for profits is underestimated

I’ll explain again - this is a temporary difference that will ultimately be paid off through depreciation.

d 68 to 77 - a difference has arisen and d 77 to 68 - the difference is paid off when the accounting balance is greater than the tax one.

are you using PBU 18?

If you apply, then you have the same amount under the leasing agreement, which should ultimately be accepted as expenses (through depreciation, etc.) in both accounting and tax accounting. All differences that arise are temporary.

It’s just that at first you accept a slightly larger amount of expenses in tax accounting, you should reflect the temporary difference: d 68 to 77 - the occurrence of IT is reflected due to the fact that the amount of expenses in tax accounting is now greater than the amount of depreciation for accounting purposes. (monthly, as long as you have NU expenses greater than BU expenses).

Because your difference (excess) between lease payments and depreciation is not reflected in accounting as expenses now.

Then, when you only have the amount of depreciation left in the expenses of the current period in accounting, your tax account recognizes a smaller amount, and, accordingly, IT (deferred tax liability) must be offset.

d 77 to 68 for the amount of discrepancies between BU and NU *20%.

Please help me figure it out. I have a term of use of the operating system longer than the term of the leasing agreement, leasing payments are equal. As a result, at the end of the leasing agreement, the under-depreciated cost of the fixed assets remains in the NU, but expenses in the NU through depreciation and part of the lease payment have already been taken into account in the amount of the amount of lease payments under the agreement. It turns out that it is no longer possible to depreciate; what then should be done with the residual value of the fixed assets in the NU? On the numbers:

The amount of leasing payments, which is also the initial cost in BU is 595 tr., in NU the initial cost is 390 tr., leasing payment is 17 tr. (term of contract leasing is 35 months), depreciation period is 60 months.

Monthly expenses in NU: depreciation 6.5 tr. + part of the leasing payment 10.5 tr. (17t.r. - 6.5t.r.) At the end of the leasing agreement, NU will write off depreciation of 6.5t.r. x 35 = 227.5 tr., pieces of leasing payments for 367.5 tr., a total of 595 tr., which is the amount of leasing payments under the contract. The residual value of the fixed assets in NU will be 390 tr. — 227.5 tr. = 162.5 tr. Where to put them?

And another question. In one agreement I have “the last lease payment is the redemption value of the property.” Since the lease payment has already been expensed, there are no postings. In another agreement, the redemption price is allocated separately - 8 thousand rubles. (after all lease payments have been paid). Should I then reflect this cost as the initial cost on 01 in NU and depreciate it over 25 months (60 - 35 months)?

Taxation of leasing operations: procedure and conditions for collecting taxes

The procedure and conditions for collecting taxes are of fundamental practical importance when designing and implementing leasing transactions with the participation of construction organizations. In this article, we will consider the current mechanisms of profit taxation, VAT, property tax, transport tax, customs duties when carrying out domestic leasing operations and international import leasing, when domestic and foreign leasing companies act as lessors for construction organizations. Let us also pay attention to the new standards that were introduced in 2005-2006. in connection with some adjustments to the Tax and Customs Codes of the Russian Federation

INITIAL COST OF LEASING PROPERTY

The largest number of rules that regulate the rules for conducting a leasing business are contained in chapter 25

“Organizational profit tax” of the Tax Code.
Important aspects of taxation are hidden in determining the initial cost of leased property. Several years ago, Federal Law No. 57-FZ of May 29, 2002
introduced an amendment to the Tax Code
(see Table 1)
, which made it possible to eliminate some previously existing restrictions for participants in leasing operations.

From the Tax Code point of view, the leasing company now has the right, for example, to construct a building or construct any other asset (including construction and road-building equipment), bring them to a condition in which they are suitable for use, and then this property may become the subject of leasing. This procedure for structuring a leasing transaction differs significantly from that provided for in the Civil Code, when the lessor is obliged to buy the property necessary for the lessee and only then lease it. Differences in legislative acts allow for more flexible planning of leasing operations. At the same time, in order to avoid misunderstandings, I think it would be advisable for construction organizations to pre-coordinate the chosen operation scheme with the tax authorities.

From the point of view of the Tax Code, a leasing company now has the right, for example, to construct a building or construct any other asset (including construction and road construction equipment), bring them to a condition in which they are suitable for use, and then this property can become the subject of leasing.

It must also be borne in mind that in paragraphs. 8, 12 “Regulations on accounting “Accounting for fixed assets” PBU 6/01″, approved by order of the Ministry of Finance of Russia on March 30, 2001 No. 26n, and Methodological guidelines for accounting of fixed assets, approved by order of the Ministry of Finance of Russia dated October 13, 2003. No. 91n, the initial cost of the leased asset can include:

— amounts paid in accordance with the contract to the supplier (seller); — amounts paid to organizations for information and consulting services related to the acquisition of fixed assets; — registration fees, state duties and other similar payments made in connection with the acquisition (receipt) of rights to an object of fixed assets; - customs duties; — non-refundable taxes paid in connection with the acquisition of fixed assets; — remunerations paid to the intermediary organization through which the fixed asset was acquired; — interest on borrowed funds accrued before the fixed asset object was accepted for accounting, if raised for the acquisition of this object; — the actual costs of the organization for the delivery of objects.

Table 1. Determination of the initial cost of property in the Tax Code

DEPRECIATION OF LEASING PROPERTY

IN 25

Chapter 1 of the Tax Code essentially created a new depreciation policy in our country.
Previously, depreciation charges were calculated using a linear method in accordance with the Unified Standards of Depreciation Charges for the complete restoration of fixed assets of the national economy of the USSR, approved by Resolution of the Council of Ministers of the USSR dated October 22, 1990 No. 1072
.

Decree of the Government of the Russian Federation of January 1, 2002 No. 1

The Classification of fixed assets included in depreciation groups was approved.
On average, standard depreciation periods, according to specialists from the Ministry of Economic Development of the Russian Federation, were reduced by 25%
.
Now all depreciable property in accordance with Art.
258 Tax Code is combined into
10
groups depending on its useful life and is taken into account at its original (replacement) cost.
Most types of construction equipment and machinery belong to the 4th - 6th
depreciation groups. By distributing all property into depreciation groups, the government actually established the maximum and minimum terms for their use. And the taxpayer organization itself sets the useful life of each of its fixed assets and, based on this, independently calculates the depreciation rate.

According to paragraph 7 of Article 258 of the Tax Code

, property received (transferred) under a financial lease under a financial lease agreement (leasing agreement) is included in the appropriate depreciation group by the party for whom this property should be accounted for in accordance with the terms of the financial lease agreement (leasing agreement).

Thus, in the Tax Code, as well as in the Federal Law “On Financial Lease (Leasing)” ( Clause 1, Article 12

), the parties to the leasing agreement have the right to freely choose the balance holder of the property. Moreover, it should be noted that the right granted to the parties is not restrictive. It applies to both domestic leasing transactions and international import leasing, when, for example, a Russian enterprise will act as a lessee and balance holder.

Ten years ago, first in accordance with government regulations and then in accordance with legislative acts, accelerated depreciation began to be used for leasing. In the Tax Code it is allowed for most types of property with a coefficient not higher than 3 (clause 7 of article 259

).
Moreover, for tax purposes you can use linear and non-linear methods of calculating depreciation. The choice of depreciation calculation method for the first seven groups (useful life - from 1 to 20
years) is made by the taxpayer independently and is applied throughout the entire depreciation period.
This choice should be recorded in the order for the enterprise and reflected in the accounting policies. If the property belongs to the eighth - tenth groups (i.e., the useful life is over 20
years), then only the straight-line depreciation method is used.

When applying the linear method, the amount of depreciation accrued for one month is determined as the product of its original cost and the depreciation rate established for this object. In this case, the depreciation rate is calculated using the formula:

Kp = [1/n] x 100%

where Kp

— depreciation rate as a percentage of the original cost of the depreciable property;
n
is the useful life of a given depreciable property item, expressed in months.

When applying the non-linear method, the amount of depreciation accrued for one month is determined as the product of its residual value and the depreciation rate established for this object. The depreciation rate is calculated using the formula:

Cos= [2/n] x 100%

where is Kos

— depreciation rate as a percentage of the residual value of the depreciable property.

When comparing the above formulas enshrined in the Tax Code, according to which depreciation is calculated, it is clear that when using the non-linear method, depreciation is accrued at a more accelerated rate at the initial stage of the useful life of the property. This procedure for calculating depreciation (in essence, this is the reducing balance method, if we use the terminology of the Russian accounting standard PBU 6/01

) has been tested in a number of countries around the world, including for many years in the USA. At the same time, the legislator has provided an interesting innovation in the Tax Code.

It is as follows: Established ( clause 5 of Article 259 of the Tax Code

), that from the month following the month in which the residual value of the depreciable property reaches
20
percent of the original cost of this object, depreciation is calculated in the following order: the residual value of the depreciable property is fixed as its base value for further calculations, and then the amount accrued for One month of depreciation is determined by dividing the base cost of a given item by the number of months remaining until the useful life of the item expires.
Thus, the non-linear method of calculating depreciation of property, when the residual value reaches 20%,
is transformed into the linear method of calculating depreciation.

The right to use accelerated depreciation with a coefficient not higher than 3

allowed for both linear and non-linear depreciation methods.
However, there is one limitation with the nonlinear method. The use of accelerated depreciation does not apply to fixed assets belonging to the first, second and third depreciation groups (i.e. with useful lives of up to 5 years
). For these groups, accelerated depreciation can be calculated, but only using the straight-line method. For enterprises and organizations, it is necessary to reflect the possibility of using an increased acceleration factor in their accounting policies.

Another limitation that may affect construction organizations acting as lessees is established in paragraph 9 of Art. 259

, where it is said that “for cars and passenger minibuses with an initial cost of more than 300 thousand rubles and 400 thousand rubles, respectively, the basic depreciation rate is applied with a special coefficient of 0.5.
Organizations that have received the specified cars and passenger minibuses on lease include this property in the corresponding depreciation group and apply the basic depreciation rate with a special coefficient of 0.5.” At the same time, the law allows the use of a coefficient not higher than 3
.
This means that two coefficients can be used as two factors. The result will be 1.5
.

In chapter 25

Another very important problem has been resolved in the Tax Code.
Earlier, in paragraph 1 of Art.
7 of the Federal Law of

October
29,
1998
No. 164-FZ
“On financial lease (leasing)”, it was stated that an international leasing agreement is regulated by federal laws in the field of foreign economic activity.
And since these laws did not say anything about the accelerated depreciation rate, it was not possible to extend the benefit that was applied to domestic leasing operations to international leasing operations. There is no such restriction in the Tax Code, and now during international leasing, when the property is on the balance sheet of the lessee, an accelerated depreciation factor of no higher than 3
. This makes it possible to expand contacts between construction organizations and foreign leasing companies.

Table 2. Depreciation periods depending on depreciation groups (Article 258)

ASSIGNMENT OF LEASING PAYMENTS TO THE EXPENSES OF THE LEASER

According to sub. 10 p. 1 art. 259 NK

, if the property received under a leasing agreement is accounted for by the lessee, then rental (leasing) payments are recognized as an expense minus the amounts of depreciation accrued on this property.

The lessee fully includes leasing payments in his expenses according to the schedule established by the agreement. It is possible to establish an uneven payment schedule in order to allow the lessee to recognize deductions in periods when he can use them with greater tax effect. However, significant imbalances in the payment schedule carry tax risk (for example, a schedule that involves 90%

-th first lease payment at the beginning of the lease term).

Before 2006

One of the serious problems of participants in the leasing business was the recognition as expenses for tax accounting purposes of the lessor's costs for the acquisition of property leased, when accounting for it on the balance sheet of the lessee.

According to the Ministry of Finance of the Russian Federation, expenses could be recognized only at the moment of transfer of ownership of the leased asset, i.e. only at the end of the leasing agreement, which could last quite a long time. In the event that the balance holder was the lessee and, accordingly, he charged depreciation, until the end of such an agreement, it was impossible for the lessor to take into account the cost of the leased asset as the purchase price of goods sold. And if the leasing agreement did not provide for the transfer of ownership of the leased asset, the lessor was generally deprived of the opportunity to write off the costs of acquiring the leased asset even at the end of the lease agreement. It turned out that the lessor had to pay income tax on all lease payments received during the leasing agreement. He had no opportunity to reduce his income. What was happening, in essence, was a kind of interest-free advance from the state. True, the tax authorities did not show extreme rigidity in this regard. But, nevertheless, the problem occurred.

It was decided by Federal Law of June 6, 2005 No. 58-FZ

“On amendments to part two of the Tax Code of the Russian Federation and some other legislative acts of the Russian Federation on taxes and fees.”
In accordance with this law, a rule was adopted allowing the lessor to recognize expenses for the acquisition of the leased asset recorded on the lessee’s balance sheet. Now in paragraphs.
10 p. 1 art. 264 of the Tax Code of the Russian Federation states that the lessor has the right to recognize expenses for the acquisition of the leased asset, which is accounted for on the balance sheet of the lessee.
And Article 272 of the Tax Code of the Russian Federation
has been supplemented with
clause 8.1
, according to which these expenses are recognized as expenses in those reporting (tax) periods in which, in accordance with the terms of the agreement, rental (leasing) payments are provided, in proportion to the amount of rental (leasing) payments.

CAPITAL INVESTMENT AND REPAIR COSTS

The Tax Code provides benefits for capital investments. From the middle 2005

year taxpayers in accordance with
paragraph 1 of Art.
259 have the right to include in the expenses of the reporting (tax) period expenses for capital investments in the amount of no more than
10%
of the initial cost of fixed assets (except for fixed assets received free of charge) and (or) expenses incurred in cases of completion.
additional equipment, modernization, technical re-equipment, partial liquidation of fixed assets, the amounts of which are determined in accordance with Article 257
of the Code.

Moreover, when calculating the amount of depreciation, the taxpayer does not take into account the costs of capital investments. Thus, in this case, lessors found themselves on an equal footing with other enterprises and organizations. This circumstance, as calculations show, somewhat reduces the advantage of leasing compared to a loan.

The costs of repairing property leased may be borne by either the lessor or the lessee, depending on how this is defined in the leasing agreement. According to the norm of Art. 260 NK

, expenses for the repair of fixed assets made by the taxpayer are considered as other expenses and are recognized for tax purposes in the reporting (tax) period in which they were incurred.

INSURANCE COSTS

In paragraph 3 of Art. 263

The Tax Code provides that other expenses of the taxpayer, that is, the cost price, include, based on the amount of actual costs, expenses for voluntary insurance of fixed assets for production purposes, including leased ones.

Consequently, this provision of the Tax Code abolished previously existing restrictions on the amount of costs for insurance, which could be attributed to the cost of products and services of the insured, incl. on construction equipment and machinery.

For specialists in construction organizations - end users of leased property, the situation with the collection of all taxes borne by the lessor must be clear and transparent, since the funds spent will necessarily be included in the contract price of the leasing agreement and, accordingly, in the composition of current lease payments. Knowing all the circumstances of taxation, construction organizations can more confidently negotiate with leasing companies and ultimately minimize their costs for purchasing the construction equipment and machinery they need.

INTEREST ON CREDITS AND BORROWINGS

So far, for some large leasing companies, accounting for interest on loans and borrowings is not entirely simple.

The fact is that, in accordance with subparagraph. 2 p. 1 art. 265 of the Tax Code, non-operating expenses include expenses in the form of interest on debt obligations of any type, including interest accrued on securities and other obligations issued (issued) by the taxpayer, taking into account the specifics provided for in Article 269 of the Code.

In this case, interest on debt obligations of any type is recognized as an expense, regardless of the nature of the credit or loan provided (current and (or) investment).

Expenses are recognized only as the amount of interest accrued for the actual time of use of borrowed funds (the actual time the said securities are held by third parties) and the yield established by the issuer (lender). In the event that the period between the acquisition of property, installation, commissioning work on this property and its transfer to the lessee is several months and this occurs in different tax periods (years), interest on loans and borrowings is expensed in one period, and income will be reflected in the next period.

Considering that, as a rule, installation requires very expensive and often imported equipment, the interest rate can reach large amounts. This circumstance has a negative impact on the tax financial result. In accordance with the current procedure, enterprises can only accept 30% of losses from previous periods from profits received, and if profitability is low, they will not be able to deduct interest received at all.

However, from January 1, 2006, the total amount of carried forward losses in any reporting (tax) period cannot exceed 50% of the tax base, and from January 1, 2007, losses are carried forward to future periods without any restrictions (clause 2 of Article 283 of the Tax Code ).

There is a procedure for classifying interest on borrowed funds as expenses. At the same time, interest accrued on a debt obligation of any type (credits, commodity and commercial loans, loans and other borrowings) is recognized as an expense, provided that the amount of interest accrued by the taxpayer on the debt obligation does not significantly deviate from the average level of interest charged on debt obligations issued in the same quarter or month (for taxpayers who switched to calculating monthly advance payments based on actual profit received) on comparable terms.

Debt obligations issued on comparable terms mean debt obligations issued in the same currency for the same terms under collateral of similar quality.

In this case, a significant deviation in the amount of accrued interest on a debt obligation is considered to be a deviation of more than 20% upward or downward from the average level of interest accrued on a debt obligation issued in the same quarter on comparable terms.

The general lending procedure established in the Tax Code applicable to the activities of leasing companies allows one to recognize as an expense the maximum level of interest equal to the refinancing rate established by the Central Bank of Russia, increased by 1.1 times when issuing a debt obligation in rubles and by 15% for loans in foreign currency.

For example, on December 23, 2005, the Central Bank of Russia set the refinancing rate at 12%; Accordingly, the level of 13.2% can be recognized as an expense when lending to leasing companies while this rate is in effect. If the cost of the loan attracted is higher than this level, then the difference will have to be covered from the net profit remaining after taxation.

In addition, the Tax Code has the so-called “insufficient (thin) capitalization” rule.

This refers to the restriction on the deduction of interest on debt obligations to a foreign company that directly or indirectly owns 20% of the authorized capital of the Russian debtor organization (controlled debt).

For ordinary taxpayers, the thin capitalization rule applies if the controlled debt is more than three times the share of the entity's equity attributable to such foreign creditor.

For banks and leasing companies, this ratio is set at 12.5. If the specified ratio is exceeded, the borrower calculates the maximum amount of deductible interest expense; the remaining interest on “controlled debt” is considered as dividends for tax purposes.

From January 1, 2006, in order for a leasing company to apply the coefficient of 12.5, it will need to be engaged exclusively in leasing activities.

In addition to this circumstance, it should be borne in mind that since January 1, 2006, the scope of application of the “insufficient capitalization” rule has been expanded. It also applies to Russian organizations that will be recognized as affiliates of a foreign company, as well as to situations where such an affiliate or a foreign company directly acts as a guarantor or surety for the fulfillment of a debt obligation.

SALES OF LEASING PROPERTY

Important for the leasing business are the legally established (Article 268 of the Tax Code) features of determining expenses when selling property.

If the sale price of the leased asset to the lessee at the end of the lease agreement is lower than the residual value of the leased asset in the tax accounting of the lessor, the lessor recognizes losses.

For tax purposes, the lessor includes this loss in other expenses in equal shares over a period defined as the difference between the useful life of this property and the actual period of its operation until the moment of sale.

Here, special attention should be paid to two circumstances that have important practical significance.

First. If the lessor seizes property from the non-executive lessee on the basis of a court decision, a situation may arise in which the residual value of the property will be higher than the market value. For example, construction equipment, which has a high rate of obsolescence. And then the question arises: can the taxpayer (i.e., the leasing company, if, in accordance with the leasing agreement, the property is on its balance sheet) take into account the accelerated depreciation factor of no higher than 3 in the actual service life?

Unfortunately, the above rule of law does not answer this question. It is advisable to solve this problem within the framework of a leasing agreement.

Second. In practice, there is often a situation in which a leasing agreement is shorter in duration than the useful life of the property and leasing payments are calculated and established in the agreement in the amount of compensation for the entire cost of the leased item, and upon completion of the transaction the property is purchased by the lessee at a conditional valuation of 1 ruble or 1 dollar.

In this case, the leasing company will incur a loss that it cannot attribute to expenses at a time. In addition, the leasing company, during the term of the leasing agreement (which is less than the accelerated depreciation period), will pay income tax on the difference between leasing payments and incompletely accrued depreciation plus other legally required expenses. The parties should take these circumstances into account in the leasing agreement and find an appropriate form of compensation for additional costs that fall on the leasing company.

INCOME TAX RATES AND DETERMINATION OF INCOME

In accordance with paragraph 1 of Art. 284 of the Tax Code, the income tax rate is set at 24%. In this case, the amount of tax calculated at a tax rate of 6.5% is credited to the federal budget, and 17.5% is sent to the budgets of the constituent entities of the Russian Federation.

When conducting international leasing operations, the rate of taxation of income of non-resident leasing companies not related to activities in the Russian Federation through a permanent representative office, in accordance with sub-clause. 1 item 2 art. 284 for all types of property is 20%.

The exception applies only to the rental (chartering) of ships, aircraft or other mobile vehicles or containers (including trailers and auxiliary equipment necessary for transportation) in connection with international transport. The tax rate for these transactions is 10%.

The tax base is the lessor's income, defined as the difference between the amount of lease payments and expenses associated with the acquisition of the leased asset.

The lessor's income is leasing payments.

The main expenses, as a rule, are accelerated depreciation of the leased asset and interest on borrowed funds.

This method of calculating income tax in some cases does not allow the lessor to synchronize the recognition of income and expenses related to the receipt of this income. The reason for this is that the lease payment schedule does not always coincide with depreciation for tax purposes.

In international leasing transactions, income from leasing operations is calculated based on the entire amount of the leasing payment minus the amount of compensation for the cost of the leased property (in case of financial leasing), payment to the lessor as compensation for the credit resources used by him to purchase the property and the amount of tax on the leased property.

TAX PAYER FOR INTERNATIONAL LEASING

In accordance with Art. 310 of the Tax Code, the obligation to calculate and pay income tax is assigned to the person who pays income to the non-resident lessor, i.e. to the lessee. Tax is paid upon transfer of each lease payment in the currency in which the income was paid.

In case of international export leasing, the income of the resident lessor from the transfer of property to the non-resident lessee is subject to income tax in accordance with the general procedure, which is provided for in Chapter 25 of the Tax Code. In this case, the amounts of tax paid in accordance with the legislation of foreign states to the Russian lessor are credited by him when paying tax in the Russian Federation.

The amount of creditable amounts of taxes paid outside the Russian Federation cannot exceed the amount of tax payable by the lessor outside the Russian Federation.

DIFFERENCES IN TAX AND ACCOUNTING

It must be borne in mind that there are significant differences between tax and accounting accounting of leasing transactions. This concerns, first of all, the inability to use accelerated depreciation in accounting with a coefficient not exceeding 3.

At the same time, in accounting, unlike tax accounting, organizations are given the right to independently determine the useful life of a fixed asset when accepting property for accounting (clause 20 of PBU 6/01).

To achieve consistency between tax and accounting, the following can be recommended. If in tax accounting for leased property an organization uses a coefficient of 3, then in accounting it is advisable to set the useful life of the object three times less than for tax accounting, but not less than 12 months. Then the monthly depreciation amount in both accounts may be the same.

However, such an operation will be fair only in cases where the initial cost of the leased property in accounting and tax accounting is the same.

PROPERTY TAX

Legislatively, the collection of this tax is regulated by the provisions of Chapter. 30 “Organizational property tax” of the Tax Code. However, it should be borne in mind that these norms are not directly applicable norms.

So, in accordance with paragraph 1 of Art. 374 provides that the object of taxation for Russian organizations is movable and immovable property (including property transferred for temporary possession, use, disposal), recorded on the balance sheet as fixed assets in accordance with the established accounting procedure.

THE TAX BASE

The tax base is defined as the average annual value of property recognized as an object of taxation. In this case, the property is accounted for at its residual value.

The average annual (average) value of property for the tax (reporting) period is determined as the quotient of dividing the amount obtained by adding the values ​​of the residual value of the property on the first day of each month of the tax period and the first day of the month following the tax period, by the number of months in the tax period, increased by units).

Thus, the tax base in accordance with Art. 375-376 of the Tax Code is defined as the average annual value of property recognized as an object of taxation.

Average annual value of property for the tax period = Sum of the residual value of property on the first day of each month of the tax period and the first day of the month following the tax period / Number of months in the tax period increased by one

TAX RATE

The tax rate within the limits established in Chapter 30 of the Tax Code (2.2 percent), as well as the procedure and deadlines for tax payment, the mechanism for calculating advance payments, and the tax reporting form are established by the legislative (representative) bodies of the constituent entities of the Russian Federation. At the same time, the laws of the constituent entities of the Russian Federation may provide for tax benefits and the grounds for their use by taxpayers.

FEATURES OF TAX COLLECTION

In accordance with the accounting rules, if the property is on the balance sheet of the lessee, then the amounts reflected in account 01 “Fixed Assets” are subject to tax.

If the property is taken into account on the lessor’s balance sheet, then in accordance with the order of the Ministry of Finance of the Russian Federation dated February 17, 1997 No. 15 (as amended and supplemented as of January 23, 2001) by debiting account 03 “Profitable investments in material assets.”

In 2004-2005 such an asset should not have been included in the tax base for property tax, which was reflected in the position of the Ministry of Finance of the Russian Federation (letter dated August 31, 2004 No. 03-06-01-04/16 “On the imposition of property tax on profitable investments in material assets” , in which it was stated that property recorded by the organization as profitable investments in material assets cannot be considered as an object of property tax).

The situation has changed. Independently or under the influence of lessees, many leasing companies have stopped paying taxes.

It is possible that the Ministry of Finance of the Russian Federation, initiating the abolition of the collection of property tax when it is on the balance sheet of the lessor, had in mind the transition in a few years to the formation of reporting in accordance with the requirements of international standards, for example IAS-17 “Lease”, according to which in financial leasing transactions the property is on the balance sheet of the tenant.

Since in practice, in most cases, during a leasing transaction, property is placed on the balance sheet of the lessor, the opportunity not to pay tax has become a subject of increased interest to many enterprises and organizations.

After the release of the Order of the Ministry of Finance of the Russian Federation dated December 12, 2005 No. 147 “On amendments to the Accounting Regulations “Accounting for Fixed Assets” PBU 6/01 (registered with the Ministry of Justice of the Russian Federation on January 16, 2006), the concept of “Fixed Assets” appeared. , intended exclusively for provision by an organization for a fee for temporary possession and use or for temporary use for the purpose of generating income.” It is stipulated that these fixed assets “are reflected in accounting and financial statements as part of profitable investments in material assets.”

Many experts have concluded that now property taxes must be paid.

Of course, logic dictates that since these are fixed assets, they must be paid. However, from a formal point of view, not everything in the order of the Ministry of Finance is flawless, since: - no changes were made to the Chart of Accounts; - it is not very clear when the new order comes into force - from 2006 or from the financial statements for 2006; - How to calculate tax in 2006?

It is hoped that additional clarifications from the Ministry of Finance will appear in the near future.

Based on materials from the specialized magazine “Construction Equipment and Technologies”, No. 1(41)/2006, “Taxation of leasing operations. Procedure and conditions for collecting taxes,” author: Professor of the Higher School of Economics Gazman V.D.

How can a lessee take into account uneven lease payments?

"The Main Book", 2009, N 19

The lessee, who has leased property on his balance sheet, charges depreciation on it. In addition, he can take into account in tax expenses a part of current leasing payments - in an amount exceeding the depreciation accrued for the month.

The procedure for calculating the amount of leasing payments is determined in the agreement. And they don't have to be uniform. For example, at the beginning of the contract the payment may be maximum, and then less and less. At one point, the amount of the lease payment may become less than the amount of monthly depreciation on the leased equipment.

In accounting, there are no problems with recognizing expenses due to uneven leasing payments. Expenses will only take into account depreciation on leased property, and current lease payments will not be included in the expenses of the current month.

In such a situation, how can one determine the amount of expenses that can be taken into account for profit tax purposes?

Clause 2 of Art. 31 of the Federal Law of October 29, 1998 N 164-FZ “On financial rent (leasing)”; clause 7, 10 art. 258 Tax Code of the Russian Federation. Subclause 10, clause 1, art. 264 Tax Code of the Russian Federation. Clause 2 of Art. 28 of the Federal Law of October 29, 1998 N 164-FZ. Clause 5 PBU 10/99 “Expenses of the organization”, approved. By Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n; Clause 9 of Order of the Ministry of Finance of Russia dated February 17, 1997 N 15.

The main thing is not to write off more as tax expenses than is specified in the leasing agreement

As you can see, the lessee, the balance holder of the leased asset, has two main types of expenses associated with the leasing agreement:

• depreciation (we will consider its calculation only using the linear method);
• current lease payments.

The amount of depreciation is determined based on the initial cost of the leased asset, its useful life and a special increasing factor (not higher than 3). The initial cost of the leased property is the amount of the lessor's expenses for the acquisition of the leased asset. Therefore, the lessee needs to obtain from the lessor copies of documents confirming the acquisition of the property. As a rule, the initial cost of the leased asset (and therefore the total amount of depreciation over the entire term of the contract) is less than the total amount of lease payments under the contract. The use of a special coefficient in this case often leads to the fact that the lessee stops accruing depreciation long before the end of the contract.

To avoid problems with current lease payments, it is better to define the redemption price in the leasing agreement as an independent payment payable at the end of the contract.

As a general rule, a lease payment can be taken into account in expenses minus the amount of depreciation.

Do not forget that if the monthly lease payment under the terms of the agreement includes part of the redemption price and it is separately highlighted in the agreement, then, according to the Russian Ministry of Finance, the current payment must be reduced by this amount when it is included in expenses.

In the case of uneven leasing payments, when determining the monthly amount of expenses, one must strictly adhere to the rule: the total amount of expenses associated with the leased property should not exceed the total amount of current payments under the leasing agreement. Otherwise, you will incur economically unjustified expenses.

You can get acquainted with consultations on other issues related to the leasing agreement in the journal “Glavnaya Ledger”, 2009, No. 17, p. 57.

Previously, regulatory authorities believed that regardless of the order of payment of leasing payments (uniform or uneven), the lessee should recognize lease payments as expenses not based on their payment schedule, but evenly throughout the term of the leasing agreement. However, now the position has changed. Both the Ministry of Finance and the Tax Service now agree that lease payments must be taken into account on the terms provided for in the agreement.

In order not to go beyond the payments specified in the leasing agreement, there are at least two options for calculating the amounts of monthly expenses.

Subclause 1, clause 2, art. 259.3 Tax Code of the Russian Federation. Paragraph 3, paragraph 1, art. 257 Tax Code of the Russian Federation. Letter of the Ministry of Finance of Russia dated June 25, 2009 N 03-03-06/1/428. Article 252 of the Tax Code of the Russian Federation. Letter of the Ministry of Finance of Russia dated October 15, 2008 N 03-03-05/131; Letter of the Federal Tax Service of Russia dated August 17, 2009 N 3-2-13/ [email protected]

Automation

In this article we do not provide accounting records to reflect the transactions considered. We are ready to consider them in more detail in our next publications.

But we propose to consider how accounting and tax accounting are automated in a specialized software product, a standard industry solution “Ortikon: Leasing. Accounting", which operates on the 1C: Enterprise 8.3 platform and is created on the basis of the standard configuration "1C: Accounting 8".

Since the basic configuration is created by 1C, this approach, on the one hand, allows the accountant to have full support for conducting standard operations, preparing and submitting regulated reports, on the other hand, to receive additional functionality that allows accounting and tax accounting of leasing transactions contracts.

Program “Ortikon: Leasing. Accounting" is registered in the Unified Register of Russian Programs for Electronic Computers and Databases and is presented on the 1C website in the section of industry and specialized solutions.

The main calculation option: we strictly follow the norms of the Tax Code

The easiest way is to strictly adhere to the norms of the Tax Code of the Russian Federation.

When the lease payment is greater than or equal to the amount of monthly depreciation, there are no difficulties: we recognize depreciation in expenses in full, and the lease payment only in the part that exceeds depreciation. It turns out that for the month, tax expenses as a whole will take into account an amount equal to the amount of the lease payment. That is, we recognize as expenses as much as we paid to the lessor (of course, minus VAT).

But when the lease payment becomes less than the accrued depreciation for the month, it is not taken into account as expenses at all. Moreover, if you read the norm of paragraphs. 10 p. 1 art. 264 of the Tax Code of the Russian Federation literally, it turns out that the lease payment should be taken into account in expenses in a negative amount (which will reduce the expenses of the reporting month). Thus, for some time, the tax accounting will recognize the amount of monthly depreciation, which will be adjusted by a negative expense.

To avoid such a negative expense, you can include the excess of monthly depreciation over the amount of the lease payment in income.

Then, when you stop accruing depreciation on the leased item, the full amount of lease payments will need to be taken into account in tax expenses.

Example. Determining the amount of expenses under a leasing agreement according to the main option

Condition

Leader LLC leased the equipment. According to the terms of the agreement, it is taken into account on the balance sheet of the lessee. The total amount of current lease payments (excluding VAT) is RUB 1,420,000. The redemption value of the leased asset is RUB 20,000.

Leasing payments are paid unevenly. The amount of the initial payment is 80,000 rubles, the amount of each subsequent payment is reduced by 2,500 rubles until it reaches the amount of 15,250 rubles.

The initial cost of the leased asset (according to the lessor) is 960,000 rubles. The contract period is 3 years, the useful life is 6 years (72 months), the depreciation coefficient in tax accounting is 3. The amount of monthly depreciation is 40,000 rubles. (RUB 960,000 / 72 months x 3).

Solution

From the 1st to the 17th month of use of the property, expenses are recognized in the usual manner. In the 17th month, the amount of the monthly lease payment (40,000 rubles) will be equal to the amount of depreciation, and starting from the 18th month, the amount of depreciation will become greater.