Accounting and taxation of property received free of charge. Tax accounting of property transferred for free use. Is property received free of charge considered income?

Despite the apparent simplicity of recording business transactions involving property received free of charge, errors are not uncommon, leading to significant distortions in the organization’s accounting and tax records. Let's consider the features of accounting for inventories, fixed assets, intangible assets, and financial investments that organizations receive free of charge.

Legal aspects

In accordance with paragraph 2 of Art. 218 of the Civil Code of the Russian Federation, the right of ownership of property that has an owner can be acquired by another person on the basis of a contract of sale, exchange, donation or other transaction for the alienation of this property. According to paragraph 2 of Art. 423 of the Civil Code of the Russian Federation, a gratuitous agreement is recognized as an agreement under which one party undertakes to provide something to the other party without receiving payment or other counter-provision from it. The Civil Code of the Russian Federation provides for two methods of gratuitous transfer of property - under a gift agreement (Article 572) and an agreement for gratuitous use (loan).

Donation agreement

Under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party. A gift is a contract, not a unilateral transaction, since each time it requires the consent of the recipient to accept the gift. Usually consent is expressed in the form of acceptance of a gift.

Donation is always associated with a gratuitous increase in the property of the donee by reducing the property of the donor by:

• transferring an item belonging to the donor into the ownership of the donee;
• transfer to the donee by the donor of property rights in relation to the donor himself;
• transfer to the donee by the donor of his property rights in relation to a third party (for example, the right to claim a certain amount of money or corporate rights in the form of a block of shares), i.e. gratuitous assignment of claims (Articles 382-389 of the Civil Code of the Russian Federation);
• exemption of the donee from the performance of property obligations in relation to the donor (i.e. forgiveness of debt in accordance with Article 415 of the Civil Code of the Russian Federation);
• exemption of the donee from his property obligation to a third party (fulfillment of this obligation by the donor in accordance with paragraph 1 of Article 313 of the Civil Code of the Russian Federation or transfer of the donee’s debt to the donor with the consent of his creditor on the basis of Articles 391 and 392 of the Civil Code of the Russian Federation).

The list of methods of donation provided for by law is exhaustive. Legal entities that are not the owners of their property can give it only with the consent of the founding owner (clause 1 of Article 576 of the Civil Code of the Russian Federation), unless we are talking about ordinary gifts worth no more than 5 minimum wages. This also applies to the donation of movable property that is under the economic control of an enterprise (clause 2 of Article 295 of the Civil Code of the Russian Federation) or at the independent disposal of the institution (clause 1 of Article 298 of the Civil Code of the Russian Federation). The transfer of an item as a gift to a non-owner legal entity entails the emergence of only a corresponding limited proprietary right to this item. Ownership of it remains with its founder.

In relations between any commercial organizations, the law prohibits gift transactions, with the exception of gifts whose value is insignificant. A type of gift is a donation. Its peculiarity lies in the presence of a condition on the use of the donated property for its intended purpose, which is the responsibility of the donee and can be controlled by the donors. We are talking about donating property for public purposes. The object of the donation may be a thing or a property right, but not a release from obligation.

A donation can be made in favor of any subjects of civil law, including legal entities that are not (and do not become) the owners of their property. The legal entity that accepted the donation must keep separate records of all transactions with such property.

Free use agreement

According to paragraph 1 of 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 lender may be the owner or another person authorized by law or the owner.

In accordance with the norms of the Civil Code of the Russian Federation, the tenant of an enterprise has the right to transfer for free use the things that are part of the leased enterprise. State or municipal enterprises that have property under the right of economic management may transfer movable property for free use independently, and real estate - with the consent of the owner, if this contributes to property legal capacity. The rules provided for in Art. 607, clause 1 and para. 1 item 2 art. 610, paragraphs 1 and 3 of Art. 615, paragraph 2 of Art. 621, paragraphs 1 and 3 of Art. 623 Civil Code of the Russian Federation.

However, paragraph 2 of Art. 615 of the Civil Code of the Russian Federation, by virtue of which the tenant is obliged to coordinate with the lessor the sublease of property, in paragraph 2 of Art. 689 of the Civil Code of the Russian Federation is not named. Consequently, a tenant who has received property for free use and has entered into a lease agreement for this property with a third party without obtaining the consent of the lender does not violate the rules of law and the terms of the transaction for free use. This conclusion was reached by the Federal Antimonopoly Service of the Far Eastern District in its Resolution dated May 24, 2005 in case No. F03-A73/05-1/1029.

True, it should be noted that clause 1 of Art. 698 of the Civil Code of the Russian Federation contains such grounds for early termination of a contract of gratuitous use as the transfer of loan property to a third party without the consent of the lender. Thus, the Federal Antimonopoly Service of the North Caucasus District supported the lender’s demands for termination of the agreement for gratuitous use and for the eviction of the borrower from the non-residential premises occupied by him in connection with the latter’s transfer of the disputed premises to third parties in violation of the terms of the agreement (Resolution of November 9, 2006 in case No. F08-5337/2006).

A commercial organization does not have the right to transfer property for free use to a person who is its founder, participant, manager, or member of its management or control bodies. In addition, she cannot transfer an item for free use to another commercial organization due to the fundamental prohibition of donations between commercial organizations (Article 575 of the Civil Code of the Russian Federation).

General principles for accounting for the receipt of gratuitously received property

Federal Law No. 129-FZ of November 21, 1996 “On Accounting” establishes the procedure for evaluating gratuitously received property - at market value on the date of capitalization. The current market value is formed on the basis of the price in effect on the date of registration of property for this or a similar type of property. Data on the current price must be confirmed by documents or experts (Regulations on accounting and financial reporting in the Russian Federation, approved by order of the Ministry of Finance of Russia dated July 29, 1998 No. 34n).

The current market value, which must be documented, is understood as the amount of money that can be received as a result of the sale of the specified asset on the date of acceptance for accounting (paragraph 4, paragraph 23 of the Regulations on accounting and reporting, paragraph 29 of the Instructions for OS accounting 1). In accounting, property received free of charge is recognized as part of other income (clause 7 of PBU 9/99 2), with the exception of property received free of charge as a contribution to the authorized capital. In accordance with clause 2 of PBU 9/99, an increase in the economic benefits of an organization as a result of the receipt of assets, leading to an increase in the capital of this organization, in the form of contributions from participants (owners of property) is not recognized as income.

Features of accounting for gratuitously received property and assets Material and industrial inventories

In accordance with clause 2 of PBU 5/01 3, the following assets are accepted as inventories (MPI):

• used as raw materials, materials, etc. in the production of products intended for sale (performance of work, provision of services);
• intended for sale;
• used for the management needs of the organization.

Finished products are part of the inventory intended for sale (the final result of the production cycle, assets completed by processing (assembly), whose technical and quality characteristics comply with the terms of the contract or the requirements of other documents, in cases established by law), and goods are part of the inventory purchased or received from other legal entities or individuals and intended for sale.

According to clause 9 of PBU 5/01, the actual cost of inventories received by an organization under a gift agreement or free of charge, as well as those remaining from the disposal of fixed assets and other property, is determined based on their current market value as of the date of acceptance for accounting. In accordance with PBU 5/01, this value is understood as the amount of money that can be received as a result of the sale of these assets.

Example 1. The organization received three hammer drills free of charge from the founder. The market value of the instruments was 30,000 rubles. The value of assets received by an organization free of charge is accounted for in accordance with the Instructions for the use of the Chart of Accounts 4 on account 98 “Deferred income”, subaccount 2 “Gratuit receipts”.

D 10 “Materials” - K 98-2 - 30,000 rubles. - property is accepted for accounting (as of the date of transfer of ownership);
D 98-2 - K 91 “Other income and expenses”, subaccount 1 “Other income” - 30,000 rubles. - the cost of property received free of charge is reflected in income.

Example 2. The supplier, based on the contract, provided the organization with a bonus in the form of a free delivery of a consignment of goods. The market value of the goods is 118,000 rubles, including VAT - 18,000 rubles. Proceeds from the sale of bonus goods amounted to 135,700 rubles, including VAT - 20,700 rubles.

The following entries must be made in the organization's accounting records:

D 41 “Goods” - K 60 “Settlements with suppliers and contractors” - 100,000 rubles. - bonus goods are accepted for accounting at the market price;
D 60 - K 98-2 - 100,000 rub. - the market value of the bonus product is reflected in deferred income;
D 98-2 - K 91-1 - 100,000 rub. - other income from receiving bonus goods during the period of its sale is recognized;
D 51 “Current accounts” - K 90 “Sales” - 135,700 rubles. - revenue from the sale of goods is recognized;
D 90, subaccount 3 “Value added tax” - K 68 “Calculations for taxes and fees”, subaccount “VAT” - 20,700 rubles. - VAT is charged on the cost of goods sold;
D 90 - K 41 - 100,000 rub. - the cost of goods sold is written off.

Fixed assets

An asset is accepted by an organization for accounting as fixed assets if the conditions specified in clause 4 of PBU 6/01 5 are simultaneously met. The procedure for recording fixed assets received free of charge is established in clause 10 of PBU 6/01. According to clause 29 of the Instructions for accounting for fixed assets, the initial value of fixed assets received by an organization under a gift agreement (free of charge) is recognized as their current market value 6 on the date of acceptance for accounting.

In accordance with clause 12 of PBU 6/01, the initial cost of property received free of charge includes other costs associated with its receipt. Based on the initial cost of fixed assets received by the organization under a gift agreement (free of charge), the financial results of the organization are formed during the useful life as non-operating income. The market value of the assets received is reflected in the credit of account 98-2 in correspondence with account 08 “Investments in non-current assets”. Amounts recorded on account 98-2 are written off to the credit of account 91-1 as depreciation is calculated.

Example 3. The organization received a car free of charge, the market value of which on the date of acceptance for accounting was 450,000 rubles. The organization's costs associated with registering the car, retrofitting it with an alarm system, as well as with insurance amounted to 4,500 rubles. without VAT. The useful life is determined to be 5 years. The method of calculating depreciation is linear. The car is used in the main production.

The following entries must be made in accounting:

D 08 - K 98-2 - 450,000 rub. - the market value of the car is reflected;
D 08 - K 60 - 4500 rub. - additional expenses for the car are reflected;
D 01 “Fixed assets” - K 08 - 454,500 rub. - the acceptance of the vehicle into operation is reflected;
D 20 “Main production” - K 02 “Depreciation of fixed assets” - 7575 rubles. (RUB 454,500: 5 years: 12 months) - depreciation is accrued (monthly starting from the month following the month the object was accepted for accounting).

As depreciation accrues on a car received free of charge from the founder, non-operating income is recognized in accounting (clause 8 of PBU 9/99, clause 29 of the Instructions for accounting for fixed assets), which is reflected by the entry:

D 98-2 - K 91-1 - 7575 rub. - non-operating income is recognized.

Intangible assets

When accepting assets for accounting as intangible, it is necessary to simultaneously fulfill the requirements established in paragraph 3 of PBU 14/2000 7. In accordance with clause 4 of PBU 14/2000, intellectual property objects (exclusive right to the results of intellectual activity) can be classified as intangible assets (IMA):

• the exclusive right of the patent holder to an invention, industrial design, utility model;
• exclusive copyright for computer programs, databases;
• property right of the author or other copyright holder to the topology of integrated circuits;
• the exclusive right of the owner to a trademark and service mark, the name of the place of origin of goods;
• the exclusive right of the patent holder to selection achievements.

The intangible assets also take into account the business reputation of the organization and organizational expenses (related to the formation of a legal entity, recognized in accordance with the constituent documents as part of the contribution of the participants (founders) to the authorized (share) capital of the organization). The procedure for accounting for gratuitously received intangible assets is set out in paragraph 10 of PBU 14/2000.

The initial cost of intangible assets received by an organization under a gift agreement (free of charge) is determined based on their market value as of the date of acceptance for accounting. The value of assets received free of charge is recognized as non-operating income of the organization (paragraph 3, paragraph 8 of PBU 9/99). To summarize information

0 other income and expenses, including non-operating ones, the Instructions for using the Chart of Accounts provide for account 91. For cases of gratuitous receipt of assets, a different procedure has been established: upon receipt of such assets, the organization must reflect their value in accounting as a separate item as deferred income with subsequent included in non-operating income.

Thus, the market value of intangible assets is reflected in the debit of account 08, subaccount 5 “Acquisition of intangible assets” in correspondence with account 98-2. Amounts recorded on account 98-2 are written off to the credit of account 91-1 as depreciation is calculated (Instructions for using the Chart of Accounts).

The cost of intangible assets is repaid through depreciation (clauses 14 and 15 of PBU 14/2000). The annual amount of depreciation is determined based on the initial cost of intangible assets and the depreciation rate calculated based on the useful life of this object (clause 16 of PBU 14/2000). In accounting, depreciation amounts are expenses for ordinary activities (clause 5, 8 PBU 10/99 8). During the reporting year, depreciation charges on intangible assets are accrued monthly, regardless of the method used, in the amount of 1/12 of the annual amount.

Example 4. The organization received free of charge from the founder, whose share in the authorized capital is 20%, the exclusive right to a software product, which it will subsequently use in its core business. According to an independent expert, the cost of the software product is 60,000 rubles. Its service life is set at 5 years. Depreciation is calculated using the straight-line method.

The following entries must be made in the organization's accounting records:

D 08 - K 98-2 - 60,000 rub. - the right to the software product was obtained;
D 04 “Intangible assets” - K 08-5 - 60,000 rubles. - the software product is accepted for accounting;

monthly starting from the month following the month the object was accepted for registration

D 20 - K 05 “Amortization of intangible assets” - 1000 rubles. (RUB 60,000: 5 years: 12 months) - depreciation accrued;
D 98-2 - K 91-1 - 1000 rub. - non-operating income is recognized.

Financial investments

An organization's financial investments include: state and municipal securities, securities of other organizations, including debt securities in which the date and cost of repayment are determined (bonds, bills); contributions to the authorized (share) capital of other organizations (including subsidiaries and dependent business companies); loans provided to other organizations, deposits in credit institutions, receivables acquired on the basis of assignment of the right of claim, etc. (clause 3 of PBU 19/02 9). For the purposes of PBU 19/02, contributions of a partner organization under a simple partnership agreement are also taken into account as part of financial investments.

The initial cost of financial investments received by an organization free of charge, such as securities, is recognized as:

• their current market value as of the date of acceptance for accounting (i.e., the market price calculated in the prescribed manner by the organizer of trading on the securities market);
• the amount of funds that can be received as a result of the sale of such securities on the date of their acceptance for accounting - for securities for which the market price is not calculated by the organizer of trading on the securities market (clause 13 of PBU 19/02).

Acceptance of financial investments received free of charge for accounting is reflected by the entry:

D 58 “Financial investments” - K 98-2 - for the amount of the current market value of the securities received.

Taxation of property received free of charge Value added tax

According to paragraph 1 of Art. 172 of the Tax Code of the Russian Federation, tax deductions for VAT provided for in Art. 171 of the Code are made on the basis of invoices issued by sellers of goods (works, services), property rights. Tax amounts presented to the taxpayer upon acquisition of goods (work, services) and property rights are subject to deductions. Since, when transferring goods free of charge, the transferring party does not present the goods to the recipient for payment of VAT, there are no legal grounds for the recipient of goods to deduct this tax (letter of the Ministry of Finance of Russia dated March 21, 2006 No. 03-04-11/60).

An exception is the receipt of property, intangible assets and property rights as a contribution to the authorized (share) capital of business companies and partnerships or share contributions to mutual funds of cooperatives, subject to the use of the received property for transactions recognized as objects of taxation in accordance with Chapter 21 of the Tax Code of the Russian Federation (p. 11 Article 171). Deductions of tax amounts specified in clause 11 of Art. 171 of the Code, are made after the registration of property, including fixed assets and intangible assets, and property rights received as payment for a contribution (contribution) to the authorized (share) capital (fund) (clause 8 of Article 172 of the Tax Code of the Russian Federation) .

In accordance with paragraph. 3 subp. 1 clause 3 art. 170 of the Tax Code of the Russian Federation, tax amounts subject to restoration in accordance with this subclause are subject to deduction from the receiving organization in the manner established by Chapter 21 of the Tax Code of the Russian Federation. The amount of the restored tax is indicated in the documents that formalize the transfer of the specified property, intangible assets and property rights.

The documents that formalize the transfer of property and which indicate the amounts of VAT recovered by the participant are stored by the organization in the journal of received invoices and are registered in the purchase book as the right to tax deductions arises in the manner established by Art. 172 of the Tax Code of the Russian Federation (paragraph 4, paragraph 5, paragraph 3, paragraph 8 of the Rules for maintaining logs of received and issued invoices, purchase books and sales books for value added tax calculations, approved by the Decree of the Government of the Russian Federation of December 2, 2000 No. 914).

Example 5. The company received an item of fixed assets as a contribution to the authorized capital from one of the participants (legal entity). The cost of the object (including VAT, subject to recovery from the founder - the transferring party) is recognized as equal to 590,000 rubles, which corresponds to the nominal value of the founder's share in the authorized capital of the LLC. The value of the fixed assets agreed upon by the participants does not exceed the value determined by an independent appraiser. The residual value of the received object, according to the tax accounting data of the transferring party, is 500,000 rubles; the restored amount of VAT is RUB 90,000.

The following entries must be made in the company's accounting records:

D 08, subaccount 4 “Purchase of fixed assets” - K 75 “Settlements with founders”, subaccount 1 “Settlements for contributions to the authorized (share) capital” - 500,000 rubles. - the cost of the fixed asset item is reflected;
D 19 “Value added tax on acquired assets”, subaccount 1 “Value added tax on the acquisition of fixed assets” - K 75-1 - 90,000 rubles. - VAT indicated in the acceptance certificate is reflected;
D 01 - K 08-4 - 500,000 rub. - a fixed asset facility was put into operation;
D 68 “Calculations for taxes and fees” - K 19-1 - 90,000 rubles. - accepted for VAT deduction.

If an organization received funds free of charge and subsequently spent them on the purchase of goods (works, services), property rights, then the amounts of VAT presented upon the acquisition of property are accepted for deduction in accordance with the provisions of Art. 171 and 172 of the Tax Code of the Russian Federation on the basis of invoices, documents confirming the actual payment of tax amounts when importing goods into the customs territory of the Russian Federation and payment of tax amounts withheld by tax agents, or on the basis of other documents in the cases provided for in clauses 3, 6-8 Art. 171 of the Tax Code of the Russian Federation, after registration of the specified goods (works, services), property rights and in the presence of relevant primary documents (letter of the Ministry of Finance of Russia dated June 6, 2007 No. 03-07-11/152).

Income tax

According to paragraph 2 of Art. 248 of the Tax Code of the Russian Federation, for profit tax purposes, property (work, services) or property rights are considered received free of charge if their receipt is not associated with the recipient’s obligation to transfer property (property rights) to the transferor (perform work for the transferor, provide services) 10. In accordance with paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, income in the form of property received free of charge, regardless of whether it was transferred by a legal entity or an individual, with the exception of the property specified in Art. 251 of the Tax Code of the Russian Federation, for tax purposes, profits refer to non-operating income that forms the tax base for the profit tax of the reporting (tax) period.

Property received by a Russian organization free of charge, if the authorized (share) capital (fund) of the receiving (or transferring) party consists of more than 50% of the contribution of the transferring (or receiving) organization, is not taken into account when determining the tax base for calculating income tax (subclause 11 clause 1 article 251 of the Tax Code of the Russian Federation). Received property is not recognized as income for profit tax purposes only if, within one year from the date of its receipt, it (except for cash) is not transferred to third parties. The specified restriction does not apply to funds; therefore, the recipient of funds has the right, until the expiration of one year from the date of receipt, to use such funds in business activities and at the same time apply an income tax benefit (letter of the Ministry of Finance of Russia dated April 19, 2006 No. 03- 03-04/1/360).

When receiving property (work, services) free of charge, income is assessed based on market prices determined taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation, but not lower than the residual value calculated in accordance with Chapter 25 of the Tax Code of the Russian Federation - for depreciable property and not lower than the costs of production (acquisition) - 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.

Example 6. The organization received free equipment that required installation from an individual who was not the founder. Installed equipment is accounted for in accounting as part of fixed assets, but in tax accounting is not recognized as depreciable property.

The market value of the property on the date of acceptance for accounting is 8,000 rubles. The following month the equipment was installed and put into operation. The cost of installation work amounted to 1,770 rubles, including VAT - 270 rubles. The useful life of the equipment is 3 years. The method of calculating depreciation is linear.

The organization has the right to deduct the amount of VAT presented by a specialized company for the work performed on the installation of equipment after registering the work performed if there is an invoice from the company.

Installed equipment, which is an object of fixed assets, is accepted for accounting at its original cost, which is formed on the basis of the market value of equipment received free of charge that requires installation, as well as the costs of its installation, carried out by a specialized company.

The following entries must be made in the organization's accounting records:

D 07 “Equipment for installation” - K 98-2 - 8000 rub. - equipment received free of charge that requires installation is reflected at market value;
D 08 - K 07 - 8000 rub. - the transfer of equipment for installation is reflected;
D 08 - K 60 - 1500 rub. (RUB 1,770 – RUB 270) - reflects the cost of equipment installation work;
D 19 - K 60 - 270 rub. - the submitted VAT is reflected;
D 68, subaccount “VAT” - K 19 - 270 rubles. - accepted for VAT deduction;
D 60 - K 51 - 1770 rub. - paid for installation work;
D 01 - K 08 - 9500 rub. (RUB 8,000 + RUB 1,500) - installed equipment is accepted for accounting;
D 68, subaccount “Income tax” - K 77 “Deferred tax liabilities” - 360 rubles. (RUB 1,500 ? 24%) - the deferred tax liability is reflected.

For accounting purposes, equipment received free of charge is other income, which is reflected by posting:

D 09 “Deferred tax assets” - K 68, subaccount “Income Tax” - 1920 rubles. (8000 rub. ? ? 24%).

Every month, starting from the month following the month the fixed asset item was accepted for accounting, until its cost is fully repaid or deregistered, the organization reflects in its accounting records the amount of accrued depreciation in the amount of 263.89 rubles. . As depreciation is calculated, the organization recognizes other income in the amount of RUB 222.22. (RUB 8,000: 3 years: 12 months).

The following entries are made in accounting:

D 20 - K 02 - 263.89 rub. - depreciation accrued;
D 98-2 - K 91-1 - 222.22 rubles. - other income is recognized;
D 68, subaccount “Income Tax” - K 09 - 53.33 (222.22 rubles ? 24%) - a decrease in the deferred tax asset is reflected;
D 77 - K 68, subaccount “Income Tax” - 10 rubles. (360 rubles: 3 years: 12 months) - a decrease in deferred tax liability is reflected;
D 99 “Profits and losses” - K 68, subaccount “Income Tax” - 53.33 rubles. (RUB 8,000: 3 years: 12 months ? 24%) - reflects a permanent tax liability.

For the purposes of taxable profit, income (expenses) are also taken into account in the form of a positive (negative) exchange rate difference arising from the revaluation of funds and other property received in the form of gratuitous assistance and the value of which is expressed in foreign currency (letter of the Ministry of Finance of Russia dated April 16, 2007 No. No. 03-03-06/1/238).

Income for the purposes of taxation of profits of organizations in accordance with clause 8 of Art. 250 of the Tax Code of the Russian Federation recognizes income generated by an organization in connection with the use of property received under agreements for gratuitous use. The procedure for assessing income associated with the gratuitous receipt of property rights is not established by the Tax Code of the Russian Federation. In this regard, the taxpayer has the right to independently determine this procedure. The Ministry of Finance of Russia, in letter dated May 7, 2007 No. 03-03-06/4/54, expressed the opinion that when receiving property rights (for example, the right to use property) free of charge, the taxpayer can assess income based on market prices for property rights (according to analogies with the procedure for determining market prices for goods, works, services) 11.

When receiving property rights free of charge, the date of recognition of income is the date of signing by the parties of the acceptance and transfer certificate of this property (subclause 1, clause 4, article 271 of the Tax Code of the Russian Federation). An organization that uses such property in activities aimed at generating income has the right to classify expenses associated with its use and maintenance as expenses for profit tax purposes, provided that such expenses meet the criteria of Art. 252 of the Tax Code of the Russian Federation (letter of the Ministry of Finance of Russia dated April 4, 2007 No. 03-03-06/4/37).

Property tax

Property received under gratuitous use agreements and not accounted for on the organization’s balance sheet is not subject to property tax. When receiving an item of fixed assets under an agreement for gratuitous use, the borrowing organization takes it into account in off-balance sheet account 001 “Leased fixed assets” in the assessment specified in the agreement (Instructions for using the Chart of Accounts). Analytical accounting for this account is carried out by lessor, for each object of leased fixed assets (according to the lessor's inventory numbers).

Example 7. The organization received a car for free use for a period of one year. The cost of the car agreed upon by the parties is RUB 500,000. The costs of current repairs carried out by a specialized organization amounted to 47,200 rubles, including VAT - 7,200 rubles. The market value of renting a similar car for a period of one year is 100,000 rubles.

The organization assessed the value of the acquired right based on the market value of the lease of similar property, and this value is significant for the organization. During the term of the gratuitous use agreement, the cost of the acquired right is written off as expenses for ordinary activities.

The borrower is obliged to maintain the thing received for gratuitous use in good condition, including carrying out current and major repairs, and bear all expenses for its maintenance, unless otherwise provided by the agreement for gratuitous use (Article 695 of the Civil Code of the Russian Federation). The costs of the borrower organization for car repairs are also included in expenses for ordinary activities (clause 5 of PBU 10/99).

The following entries must be made in the organization's accounting records:

D 001 - 500,000 rub. - the car was accepted into an off-balance account;
D 97 “Future expenses” - K 98-2 - 100,000 rubles. - reflects the cost of the free use right received;
D 20 - K 97 - 8333 rub. (RUB 100,000: 12 months) - part of the cost of the right to use is included in expenses for ordinary activities (monthly during the contract);
D 98-2 - K 91-1 - 8333 rub. - the corresponding part of deferred income is recognized as other income;
D 20 - K 60 - 40,000 rub. - the cost of the repairs was written off as expenses;
D 19 - K 60 - 7200 rub. - VAT is allocated based on the invoice of a specialized organization;
D 68, subaccount “VAT” - K 19 - 7200 rub. - accepted for VAT deduction;
D 60 - K 51 - 47,200 rub. - the cost of repairs to a specialized organization was paid;

upon expiration of the contract

K 001 - 500,000 rub. - the cost of the car is written off from the organization’s off-balance sheet account.

1 Guidelines for accounting of fixed assets were approved by order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n.

2 The accounting regulation “Income of the organization” PBU 9/99 was approved by order of the Ministry of Finance of Russia dated May 6, 1999 No. 32n.

3 The accounting regulation “Accounting for inventories” PBU 5/01 was approved by order of the Ministry of Finance of Russia dated June 9, 2001 No. 44n.

4 The chart of accounts for accounting the financial and economic activities of organizations and the Instructions for its application were approved by Order of the Ministry of Finance of Russia dated October 31, 2000 No. 94n.

5 The accounting regulation “Accounting for fixed assets” PBU 6/01 was approved by order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n.

6 When determining the current market value, data received in writing from manufacturing organizations on prices for similar fixed assets, information on the price level available from state statistics bodies, trade inspectorates, as well as in the media and specialized literature, expert opinions ( for example, appraisers) on the value of individual fixed assets.

7 The accounting regulation “Accounting for intangible assets” PBU 14/2000 was approved by order of the Ministry of Finance of Russia dated October 16, 2000 No. 91n.

8 The accounting regulations “Expenses of the organization” PBU 10/99 were approved by order of the Ministry of Finance of Russia dated May 6, 1999 No. 33n.

9 The accounting regulation “Accounting for financial investments” PBU 19/02 was approved by order of the Ministry of Finance of Russia dated December 10, 2002 No. 126n.

Free receipt of fixed assets- a rather rare phenomenon. Most often, property is transferred free of charge by the founders in favor of the established organization. Companies that have received fixed assets free of charge must take into account a number of features that such an operation has.

Legal aspect

An organization can receive fixed assets free of charge. There are only two ways to do this, and they are regulated by the Civil Code of the Russian Federation.

In the first case, the fixed asset may be received by the organization under a gift agreement. According to it, one party - the donor - transfers (or undertakes to transfer) the property free of charge to the other party - the donee (Article 572 of the Civil Code of the Russian Federation).

A real estate gift agreement concluded before 03/01/2013 is subject to mandatory state registration in the manner established by Federal Law No. 122-FZ dated 07/21/1997 “On state registration of rights to real estate and transactions with it.” After March 1, 2013, such an agreement does not require state registration.

Donations between commercial organizations are not allowed, with the exception of ordinary gifts worth less than RUB 3,000. ( Subclause 4 Clause 1 Article 575 of the Civil Code of the Russian Federation). Donated property worth over RUB 3,000. can only be obtained from citizens, non-profit organizations, state and municipal authorities.

This prohibition does not apply to the gratuitous transfer of property between the founder (commercial organization) and the established organization. Judicial practice confirms that such transactions do not contradict the provisions of Article 575 of the Civil Code of the Russian Federation (for example, Resolutions: FAS Moscow District dated August 20, 2008 No. KA-A40/7643-08-P, FAS Volga District dated December 6, 2007 No. A65-5602/2007-SA1-7, Federal Antimonopoly Service of the North-Western District dated December 23, 2005 No. A56-4986/2005). Although there are opposite conclusions on this issue (for example, Resolutions: FAS Volga-Vyatka District dated March 14, 2012 No. A28-5775/2011, FAS Moscow District dated December 5, 2005, November 18, 2005 No. KA-A40/11321 -05) But in 2012, the Presidium of the Supreme Arbitration Court of the Russian Federation finally put an end to this dispute. In his decision No. 8989/12 dated December 4, 2012, he indicated that transactions between the main and subsidiary companies to provide gratuitous assistance are not recognized as donations. It is worth noting that Tax legislation also allows for the possibility of concluding gratuitous transactions ( clause 11 clause 1 article 251 of the Tax Code of the Russian Federation).

If the value of movable property received free of charge from a legal entity exceeds 3,000 rubles, then the gift agreement is drawn up in writing (clause 2 of Article 574 of the Civil Code of the Russian Federation), otherwise the agreement can be concluded orally. Written form is also required if the contract provides for a promise of a gift in the future. A gift agreement between a citizen and an organization is concluded in written or oral form as agreed by the parties, regardless of the amount of the transaction.

In the second case, the fixed asset may go to the organization in the form of a donation. A donation is the gift of an item for general benefit. You can donate to citizens, medical and educational institutions, charitable, educational and scientific organizations, museums, foundations, etc. (Clause 1 of Article 582 of the Civil Code of the Russian Federation). If a legal entity has accepted donated property for the use of which a specific purpose has been established, then it is obliged to keep separate records of all transactions related to its use. A donation can be used for another purpose due to changed circumstances only with the consent of the donor (clause 4 of Article 582 of the Civil Code of the Russian Federation).

Accounting

In accordance with clause 10 of PBU 6/01 “Accounting for fixed assets”, approved by Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n (hereinafter referred to as PBU 6/01), the initial cost of a fixed asset received free of charge is determined by its current market value on the date of acceptance for accounting as an investment in non-current assets. In this case, the current market value is understood as the amount of money that an organization can receive from the sale of this asset on the date of its acceptance for accounting (paragraph 2 of paragraph 29 of the Methodological Guidelines for Accounting of Fixed Assets, approved by Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n (hereinafter referred to as Guidelines No. 91n)). The market value must be confirmed by documents or by experts (clause 10.3 of PBU 9/99 “Income of the organization”, approved by Order of the Ministry of Finance dated May 6, 1999 No. 32n (hereinafter referred to as PBU 9/99)).

In order to determine the current market value of a fixed asset received free of charge, an organization can use the following sources of information:

Data from manufacturing plants on prices for similar items, received in writing;
- responses to requests to state statistics bodies, trade inspections;
- expert opinions (for example, appraisers) on the cost of individual fixed assets, etc.

Based on clause 7 of PBU 9/99, assets received free of charge by an organization are recognized as other income (in “Other income and expenses”, subaccount 1 “Other income”). However, if we are guided by , then the market value of such objects should be reflected under the credit “Deferred Income”, subaccount 2 “Gratuitous receipts” in correspondence with “Investments in non-current assets”, subaccount 4 “Acquisition of fixed assets”. Further accounting for future income involves writing them off from account 98 to the financial result of the organization as other income (to account 91-1) as depreciation is calculated on the fixed asset. A similar procedure for reflecting gratuitously received property is provided for in paragraph 4 of clause 29 of Methodological Instructions No. 91n.

Thus, in accordance with the Chart of Accounts, the organization will make the following accounting entry:

Debit 08-4 - Credit 98-2
- reflects the market value of the fixed asset received free of charge.

Analytical accounting for account 98-2 is maintained for each fixed asset received free of charge/

The initial cost of property accepted as a gift increases by the amount of additional costs that accompany its receipt: transportation services, loading and unloading operations, installation, launch, commissioning, etc. This follows from clause 12 and clause 8 of PBU 6/01 . Their organization reflects in the debit of account 08-4:

Debit 08-4 - Credit 20, 23, 25, 26, 44, 60, 70, 71, 76, 69…
- additional expenses associated with the gratuitous receipt of fixed assets are reflected: delivery, information and consulting services, loading and unloading operations, etc.

Thus, the initial cost of the donated property consists of its market value and other costs associated with its receipt (if any were incurred by the receiving party). The procedure for determining the initial cost of a fixed asset in accounting does not depend on the legal status of the donor (individual, individual entrepreneur or organization).

After the initial cost of the object is formed, it is accepted for accounting as a fixed asset. Remember that for this, all the conditions of clause 4 of PBU 6/01 must be met. The operation is reflected by the posting:

Debit 01 (03) - Credit 08-4
- the object is accepted for accounting as a fixed asset (income investment in material assets) at its original cost.

Note!
If the initial cost of an asset received free of charge does not exceed the cost limit established by the organization for “low-value” property, then it is taken into account as part of inventory. The maximum limit in accounting can reach 40,000 rubles. per unit (paragraph 4, clause 5 of PBU 6/01).

The cost of fixed assets is repaid through (paragraph 1, clause 17 of PBU 6/01). And objects received as a gift are no exception here. Therefore, during the useful life (USI), the organization makes monthly depreciation charges on them:

Debit 20, (23, 25, 26, 44…) - Credit 02
- reflects the accrual of depreciation on fixed assets received free of charge.

For fixed assets donated to a non-profit organization, not depreciation is charged, but depreciation is calculated on the off-balance sheet “Depreciation of fixed assets” (paragraph 3, clause 17 of PBU 6/01).

Debit 010
- reflects the accrual of depreciation on fixed assets received free of charge.

As other income is recognized in the reporting period, in this case as depreciation (wear and tear) is calculated on a fixed asset received free of charge, the following entry is made in the accounting records:

Debit 98-2 - Credit 91-1
- part of the income of future periods is recognized in the income of the current period in terms of accrued depreciation.

Important!
If the receiving party spent its own funds on delivery and bringing the fixed asset into a condition suitable for use, then it is necessary to determine the share of the value of the property received free of charge in its original cost. This is necessary when calculating depreciation, since future period income is written off against current period income in proportion to this share.

The receipt of fixed assets is documented by an acceptance certificate ( clause 38 of Guidelines No. 91n). In accordance with Part 4 of Article 9 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (hereinafter referred to as Law No. 402-FZ), an organization can use unified forms of primary accounting documents that are approved by the Resolution of the State Statistics Committee of Russia dated 01/21/2003 No. 7: No. OS-1 (No. OS-1a, No. OS-1b). She also has the right to independently develop the necessary document forms.

VAT accounting procedure

The gratuitous transfer of ownership of goods (work, services) is recognized as the sale of these goods (work, services), and therefore is subject to VAT taxation. This follows from paragraph 1 of Article 39 of the Tax Code of the Russian Federation and clause 1 clause 1 of article 146 of the Tax Code of the Russian Federation. Thus, the party transferring the fixed asset free of charge must calculate this tax ( paragraph 1, clause 2, article 154 of the Tax Code of the Russian Federation).

Since in this transaction there is no fact of payment / partial payment, the VAT tax base is determined by the transferring party on the date of shipment (transfer) of the property ( clause 1 clause 1 of article 167 of the Tax Code of the Russian Federation). If the object of gratuitous transfer is real estate, then the date of shipment is considered to be the day of transfer of real estate according to the acceptance certificate or other transfer document (clause 16 of Article 167 of the Tax Code of the Russian Federation).

The tax base for calculating the tax is determined based on the market value of the transferred fixed asset, taking into account excise taxes and excluding VAT (clause 3 of Article 105.3 of the Tax Code of the Russian Federation, clause 2 of Article 154 of the Tax Code of the Russian Federation).

Remember!
Not every gratuitous transfer is recognized as subject to VAT. These exceptions are listed in subclauses 2-subclauses 6 clause 3 of article 39 of the Tax Code of the Russian Federation , Subclause 5 Clause 2 Article 146 of the Tax Code of the Russian Federation. In addition, some transactions are exempt from this tax in accordance with the provisions of the Tax Code (clause 12, clause 3, article 149).

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:, etc.

The founder (organization or individual), whose share in the authorized capital of the host organization is more than 50%;
- an organization whose authorized capital consists of more than 50% of the contribution of the host organization.

The benefit of paragraph 11, paragraph 1, Article 251 of the Tax Code of the Russian Federation applies only if this property is not transferred to third parties within one year from the date of its free receipt (paragraph 5, paragraph 11, paragraph 1, Article 251 of the Tax Code of the Russian Federation) .

Note!
Transfer here means not only the sale (transfer of ownership) of property, but also other grounds for its provision: rent, use, pledge, trust management, etc. (letters from the Ministry of Finance of Russia:,). And third parties, in addition to third-party organizations, may be employees of the recipient organization ().

By the way, the organization has the right not to take into account income from property transferred to it by the founder in order to increase net assets. This indicates clause 3.4 clause 1 of article 251 of the Tax Code of the Russian Federation. Moreover, the share of this founder in the authorized capital of the receiving party does not matter.

The opportunity for organizations to include the value of low-value property received free of charge in tax expenses became available to organizations only from January 1, 2015 ( paragraph 2, clause 2, article 254 of the Tax Code of the Russian Federation). The amount that is taken into account must be determined according to the rules of clause 8 of Article 250 of the Tax Code of the Russian Federation.

Tax accounting of appraiser services

It is worthwhile to dwell separately on the independent assessment of property and the rules for accounting for such expenses when receiving fixed assets free of charge. So, if the donee does not have supporting information about the value of the property transferred to him, then he has the right ( paragraph 2, clause 8, article 250 of the Tax Code of the Russian Federation):

• evaluate the object yourself;
• conduct an independent examination.

In the latter case, the organization engages an independent appraiser. In his work, he is guided by the Federal Law of July 29, 1998 No. 135-FZ “On Valuation Activities in the Russian Federation” (hereinafter referred to as Law No. 135-FZ) and the Federal Valuation Standards (FSO). According to Article 15 of Law No. 135-FZ the specialist involved must be a member of a self-regulatory organization of appraisers.

In order for the recipient of the property to be able to take into account the costs of paying for the services of an appraiser for profit tax purposes, it is necessary to fulfill 3 conditions of clause 1 of Article 252 of the Tax Code of the Russian Federation:

1. expenses must be documented;
2. expenses must be incurred to carry out activities aimed at generating income;
3. expenses must be justified (economically justified).

The economic justification of the estimated costs is confirmed by the fact that as a result of the gratuitous receipt of property, the receiving party receives taxable income, the amount of which must be assessed ( paragraph 2, clause 8, article 250 of the Tax Code of the Russian Federation).

In accounting, the cost of the appraiser’s services is included in expenses for ordinary activities (clause 5, clause 7 of PBU 10/99 “Expenses of an organization” approved by Order of the Ministry of Finance of Russia dated May 6, 1999 No. 33n). In accordance with the Chart of Accounts, these expenses are reflected in “General business expenses” along with expenses for consulting, auditing and other similar services ().

Depreciation bonus

As for the depreciation bonus, the Tax Code prohibits its application to fixed assets received free of charge. This is clearly stated in paragraph 2, clause 9, article 258 of the Tax Code of the Russian Federation. By the way, the restriction applies only to capital investments that form the initial cost of the property. Expenses for carrying out restoration work (reconstruction, modernization, completion, additional equipment, technical re-equipment), as well as partial liquidation of the facility, can be written off at a time in the amount of:

• no more than 10% - for objects of 1,2 and 8-10 depreciation groups;
• no more than 30% - for objects of 3-7 depreciation groups.

Depreciation on fixed assets received as a gift is calculated in accordance with the general rules of Article 256-Article 259.3 of the Tax Code of the Russian Federation, based on the methods and norms accepted by the recipient. Moreover, regardless of whether the value of the received property is reflected in taxable income or not. This is confirmed by the Ministry of Finance (letters:,).

By the way, regulatory authorities are challenging the right of the recipient organization to depreciate an object received free of charge using the cash method of recognizing income and expenses. They justify their position with the norm Subclause 2 Clause 3 Article 273 of the Tax Code of the Russian Federation, which under these circumstances allows for depreciation of only paid-for property. And with a gratuitous donation, the donee has no obligation to pay for the property to the donor.

Consequently, the organization does not have the right to reduce the tax base by the cost of the received fixed asset by calculating depreciation. The position is controversial, but the regulatory authorities adhere to it.

Example 2.

In mid-December, Horizont LLC received free of charge from its founder V.I. Nesterov a small building for a warehouse of materials used in the production of products. At the end of the same month, the contractor RemontStroy LLC carried out internal repairs of the building in the amount of 236,000 rubles, including VAT (18%) - 36,000 rubles.

According to the conclusion of an independent appraiser (Otsenka Plus LLC), the market value of the property as of the date of receipt is 2,000,000 rubles. Information about the residual value of the property in tax accounting was not provided to the company, since V.I. Nesterov is an individual. The involved expert valued his services at 35,400 rubles, including VAT (18%) - 5,400 rubles.

Documents to register ownership of real estate were submitted in mid-December. The state fee for registration actions was 22,000 rubles. (for a legal entity). In January, ownership was registered.

At the end of December, the fully usable facility was accepted into fixed assets and put into operation.

Based on the Classification of fixed assets, the head of the organization approved in the order the useful life of the building - 20.5 years or 246 months (8th depreciation group).

Reference data:

1) Horizont LLC is engaged in the production of products subject to the general taxation system (OSNO);
2) the share of the founder V.I. Nesterov in the authorized capital of Horizont LLC is:
- option 1 - 60%;
- option 2 - 40%;
3) in accordance with the Regulations on the accounting policy of Horizont LLC for accounting and tax accounting purposes:
- depreciation for all fixed assets is calculated using the straight-line method;
- useful life is determined according to the Classification of fixed assets included in depreciation groups (approved by Decree of the Government of the Russian Federation dated January 1, 2002 No. 1);
4) in accordance with the working chart of accounts approved in the accounting policy of Horizont LLC for accounting purposes, immovable fixed assets * are accounted for in the following subaccounts.

Working chart of accounts of Horizont LLC

<*>Note: the topic of accounting for the acquisition of real estate is covered in detail in this.

Solution.

Horizont LLC will reflect the gratuitous receipt of property in its accounting records with the following entries.

The initial cost of a fixed asset item, formed in accounting and tax accounting, is the same.

In January, after registering ownership of the building, the company’s accountant will make internal entries in account 01.

In accordance with clause 21 of PBU 6/01 and clause 4 of Article 259 of the Tax Code of the Russian Federation, Horizont LLC will begin to depreciate fixed assets from January 1st.

Calculation of depreciation (A) using the linear method:

• In accounting:

1. Agod = Initial cost x Depreciation rate (year) = 2,222,000 rub. x 100% / 20.5 years = RUB 108,390.24;
2. Ames = Agod / 12 months. = 108,390.24 rub. / 12 months = 9,032.52 rub.

• In tax accounting:

1. Ames = Initial cost / Useful life (months) = RUB 2,222,000. / 246 months = 9,032.52 rub.

There are no discrepancies between the depreciation amounts accrued in accounting and tax accounting. In accounting, the organization will generate an accounting entry.

At the same time, in accounting, part of the previously recorded income for future periods must be written off as other income for the current period. To do this, we calculate the share of the value of the property received free of charge in its original cost: 2,000,000 rubles. / RUB 2,222,000 = 0.90. In January, the company's financial result will increase by an amount proportional to the calculated share.

Option 1. V.I. Nesterov’s share in the authorized capital of Horizont LLC is 60%.

For profit tax purposes, the organization uses the benefit of paragraph 1 of clause 1 of Article 252 of the Tax Code of the Russian Federation, therefore taxable income does not arise from gratuitous receipts. Other income in the amount of RUB 8,129.27. taken into account for accounting purposes only. Therefore, in accordance with PBU 18/02 “Accounting for calculations of corporate income tax” (approved by Order of the Ministry of Finance of the Russian Federation dated November 19, 2002 No. 114n), the Company has a permanent difference in January, which forms a permanent tax asset (PTA):

• PNA = Constant difference x 20% (income tax rate) = RUB 8,129.27. x 20% = 1,625.85 rub.

Accounting entries for depreciation, write-off of deferred income and formation of PNA will be made in accounting monthly, throughout the entire useful life of the building, until its cost is fully repaid (or deregistered).

Option 2. V.I. Nesterov’s share in the authorized capital of Horizont LLC is 40%.

In the accounting records of the LLC, it will reflect deferred income in the amount of 2,000,000 rubles, which will be written off to the financial result as depreciation is calculated, starting in January. In tax accounting, this entire amount is included at a time in non-operating income on the date of signing the act of primary transfer of property (clause 8 of Article 250 of the Tax Code of the Russian Federation, clause 1 of clause 4 of Article 271 of the Tax Code of the Russian Federation).

As a result of a discrepancy in the procedure for recognizing income from gratuitously received fixed assets in accounting and tax accounting, the organization has a deductible temporary difference, which forms a deferred tax asset (DTA):

• SHE = Deductible temporary difference x 20% (income tax rate) = RUB 2,000,000. x 20% = 400,000 rub.

Therefore, in December, along with accounting entries for the gratuitous receipt of an object by the organization (decision table 1), the following entry will be made.

Starting from January, as future income is recognized in current period income, the amount of accrued OTA will be repaid. The Company's accountant will generate such entries.

<*>Calculation of depreciation, as well as the share of the cost of gratuitously received property in its original cost, see above.

The organization will make accounting entries No. 2-4 monthly throughout the entire useful life of the fixed asset, until its cost is fully repaid (or written off from accounting).

End of example

It is worth paying special attention to this situation. An organization can receive funds as a gift (for example, from the founders) and use these funds to purchase property. such a purchase does not have any special features: the organization makes standard entries for the receipt of fixed assets. Then depreciation is charged on the object.

As for tax accounting, previously the financial department prohibited taking into account, when calculating income tax, any expenses that were paid from funds received free of charge from the founder with a share in the authorized capital of the receiving party of more than 50% (). Currently, the position of officials has changed. In its clarifications, the Russian Ministry of Finance notes that an organization has the right to include such expenses in the tax base if they meet all the requirements of paragraph 1 of Article 252 of the Tax Code of the Russian Federation. And it doesn’t matter with what funds (“gratuitous” or not) the purchase was made and what the owner’s share is. (Letter from the Ministry of Finance of Russia:,). In addition, depreciable property acquired with “free” money must be depreciated in accordance with the generally established procedure (Article 256-Article 259.3 of the Tax Code of the Russian Federation).

Note!
Limit established by the norm paragraph 5, paragraph 11, paragraph 1, article 251 of the Tax Code of the Russian Federation, does not apply to funds received free of charge. That is, an organization, having accepted money from a founder whose share in the authorized capital of a business company is more than 50%, can immediately spend it. At the same time, the benefit clause 11 clause 1 article 251 of the Tax Code of the Russian Federation will be saved.

At the beginning of its activities, each organization needs some kind of financial assistance from its founders. The latter often help their “brainchild” stay afloat by providing all kinds of contributions and interest-free loans. Very often, property is transferred to the public for ownership or use free of charge. Periodically, there are operations for the gratuitous transfer and receipt of property and property rights from many organizations in the course of their activities. However, organizations need to be very careful when receiving such “gifts”. Doesn't the obligation to pay tax to the budget arise at the same time? Tax authorities always pay attention to the assistance received free of charge and will not miss the opportunity to replenish the budget.

Property received free of charge as income

The list of income that taxpayers using the simplified tax system must take into account is given in paragraph 1 of Art. 346.15 Tax Code of the Russian Federation. Structurally, all income in it is divided into two large groups:

– income from the sale of goods (work, services), sale of property and property rights. These incomes must be determined in accordance with Art. 249 Tax Code of the Russian Federation;

– non-operating income. They are determined in accordance with Art. 250 Tax Code of the Russian Federation.

In this case, income is not taken into account, the list of which is given in Art. 251 of the Tax Code of the Russian Federation, and dividends, if taxes are withheld from them by tax agents.

In paragraph 1 of clause 8 of Art. 250 of the Tax Code of the Russian Federation establishes that non-operating income includes income in the form of gratuitously received property (work, services) or gratuitously received property rights, with the exception of the income specified in Art. 251 Tax Code of the Russian Federation. According to paragraphs. 11 clause 1 of this article, when determining the tax base, 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.

note: received property is not recognized as income for tax purposes if, within a year from the date of its receipt (except for cash), it is not transferred to third parties.

A taxpayer who has received free of charge property that is not depreciable, work or services, when taxed, must assess the income associated with them based on market prices determined taking into account the provisions of Art. 40 Tax Code of the Russian Federation. The valuation should not be lower than production (purchase) costs. This is stated in paragraph. 2 clause 8 art. 250 Tax Code of the Russian Federation. If depreciable property is acquired free of charge, then the income must be assessed based on market prices determined taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation, but not lower than those established in accordance with the norms of Chapter. 25 Tax Code of the Russian Federation. Information on the prices of property (work, services) received free of charge can be confirmed either with documents or by conducting an independent assessment.

Let us note that if the transfer of property or property rights is of an investment nature (contribution of the founder to the authorized capital, contribution of a participant under a simple partnership agreement, etc.), then there is no need to talk about gratuitous transfer in this case. The transfer of property on condition of return (provision of credit or loan) cannot be considered gratuitous.

The Civil Code establishes some restrictions for concluding a gift agreement. Thus, donation is prohibited between commercial organizations. An exception is when the value of the gift does not exceed 5 minimum wages. This is stated in paragraph 4 of Art. 575 of the Civil Code of the Russian Federation. But if one of the parties is a non-profit organization or an individual, then the gift agreement can be concluded completely freely.

Loan agreement

Often, the gratuitous transfer of property is carried out without transfer of ownership, but for a certain period. In this case, a free use (loan) agreement is concluded. Does the receiving party need to account for income? Yes need. This position was expressed by the Ministry of Finance in letters dated 02/17/2006 No. 03-03-04/1/125 and dated 04/19/2006 No. 03-03-04/1/359. The Presidium of the Supreme Arbitration Court of the Russian Federation also agrees with her, which in paragraph 2 of Information Letter No. 98 dated December 22, 2005 expressed a similar approach.

Question: The company is on the simplified tax system and has entered into an agreement for the free use of non-residential premises. In this case, does the LLC have an object of taxation for the purposes of applying Ch. 26.2 of the Tax Code of the Russian Federation? If it occurs, then to what extent?

In accordance with paragraph 1 of Art. 346.15 “Procedure for determining income” of the Tax Code of the Russian Federation, taxpayers when determining the object of taxation along with income from sales determined in accordance with Art. 249 of the Tax Code of the Russian Federation, also take into account non-operating income determined in accordance with Art. 250 Tax Code of the Russian Federation. In this case, income provided for in Art. 251 Tax Code of the Russian Federation.

In this situation, the organization uses the property on the basis of a loan agreement. Clause 1 of Art. 689 of the Civil Code of the Russian Federation provides that 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 , subject to normal wear and tear or in the condition stipulated by the contract. In accordance with paragraph 2 of this article, the rules on the lease agreement are accordingly applied to the agreement for gratuitous use.

When receiving property under a free use agreement, the organization receives the right to use this property free of charge. Taking into account the above, for profit tax purposes, the receipt of property for free use should be considered as the gratuitous receipt of property rights. Income in the form of gratuitously received property rights is subject to inclusion in the non-operating income of the borrower on the basis of clause 8 of Art. 250 Tax Code of the Russian Federation.

When receiving property (work, services) free of charge, income is assessed based on market prices determined taking into account 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 by conducting an independent assessment.

Established in paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, the principle of determining income when receiving property free of charge, which consists in its assessment based on market prices determined taking into account Art. 40 of the Tax Code of the Russian Federation, is also used when assessing property rights, including the right to use a thing. Thus, a taxpayer who received property for gratuitous use under an agreement includes in non-operating income income in the form of a gratuitously received right to use the property, determined on the basis of market rental prices for identical property.

This conclusion is confirmed in paragraph 2 of the Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Chapter. 25 of the Tax Code of the Russian Federation (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98).

Interest-free loan

Sometimes organizations receive interest-free loans. In this situation, accountants very often have a question: is it necessary to tax the material benefits received from saving on interest? Let's try to figure it out.

Subclause 8, clause 1, art. 250 of the Tax Code of the Russian Federation classifies as non-operating income income in the form of gratuitously received property (work, services) or property rights, except for the cases specified in Article 251 of this Code. If a taxpayer received an interest-free loan, does he receive an economic benefit from the free use of the funds received? If yes, then should he include it in the tax base?

The concept of gratuitously received property (work, services) for the purposes of calculating income tax is given in paragraph 2 of Art. 248 of the Tax Code of the Russian Federation: 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 property (property rights) to the transferor (perform work for the transferor , provide services to the transferor).

Consequently, important factors for gratuitous transfer are the transfer of ownership to the donee and the absence of a counter-obligation from the donee. According to tax officials, expressed in letters, the taxpayer does not generate income when receiving an interest-free loan. For example, from the Letter of the Federal Tax Service for Moscow dated November 3, 2004 No. 26-12/71407, it follows that the temporary use of borrowed funds under an interest-free loan agreement is not considered as the basis for the occurrence of non-operating income of the organization in the form of material benefits from savings on interest. A similar point of view is expressed in the Letter of the Department of Tax Administration for Moscow dated February 27, 2004 No. 04-23/3244/G557 “On income tax.”

But often tax inspectors recognize the emergence of material benefits from the borrower and demand that they be taxed, which is confirmed by arbitration practice. In their opinion, an interest-free loan is a gratuitous service, and the taxpayer receives non-operating income in the form of material benefits from savings on interest. The amount of benefit must be determined by the amount of interest accrued based on the refinancing rate established by the Central Bank of the Russian Federation during the period of use of borrowed funds.

You can argue with fiscals. In order to show the shortcomings of their position, let us focus on two points. First, let’s ask ourselves: can an interest-free loan be considered a gratuitous service? Services are provided within the framework of an agreement on the provision of paid services (Chapter 39 of the Civil Code of the Russian Federation). In accordance with paragraph 1 of Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of paid services, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

The concept of service is given in paragraph 5 of Art. 38 of the Tax Code of the Russian Federation: it recognizes activities the results of which do not have material expression, are sold and consumed in the process of carrying out this activity.

Relations under an interest-free loan agreement are regulated by Ch. 42 “Loan and Credit” of the Civil Code of the Russian Federation. According to paragraph 1 of Art. 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality.

According to paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, the lender has the right to receive interest from the borrower on the loan amount, but it is not at all obligatory. Otherwise (free of charge) may be provided by law or contract.

Based on the foregoing, we can conclude that the relationship under the loan agreement does not contain signs of a service. It should be noted that the highest court also proceeds from the need for a clear distinction between these two contractual types. The Presidium of the Supreme Arbitration Court of the Russian Federation voiced its approach to this problem in Resolution No. 3009/04 dated August 3, 2004. A similar point of view was expressed by the tax authorities. Thus, the Department of Tax Administration for Moscow in Letter dated February 27, 2004 No. 04-23/3244/G557 indicated: civil legislation does not consider the payment of interest under a loan agreement as payment for services rendered, distinguishing between an agreement for the provision of services and an agreement for the transfer of funds for loan agreement.

Now let's ask one more question: can the material benefit from saving on interest for using an interest-free loan be recognized as income for tax purposes? The Tax Code recognizes as income an economic benefit in cash or in kind, taken into account if it is possible to assess it to the extent that such benefit can be assessed and determined in accordance with the chapters “Tax on personal income”, “tax on profit (income) of organizations ..." (clause 1 of article 41 of the Tax Code of the Russian Federation). However, Ch. 25 of the code does not consider the material benefit from savings on interest for the use of borrowed funds as income subject to taxation and, accordingly, does not contain rules for its recognition and accounting. Consequently, the material benefit in question cannot be recognized as income for tax purposes.

In addition to the above, we note that in accordance with paragraphs. 10 p. 1 art. 251 of the Tax Code of the Russian Federation, income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of registration of borrowings, including securities under debt obligations), as well as funds or other property, is not included in the tax base. received to repay such borrowings.

Despite the fact that some fiscal officials are trying to tax the economic benefits of interest-free loans, arbitration practice clearly resolves the issue in favor of taxpayers. Thus, the FAS of the Volga District in Resolution No. A57-3029/05-7 dated January 18, 2006 indicated that Chapter 25 of the Tax Code of the Russian Federation “Tax on profit (income) of organizations” does not provide for such a form of economic benefit as savings on interest, and does not establish the procedure for its determination.

Thus, an interest-free loan as an obligation obliging the borrower to return the funds received under the loan agreement is not considered an object of income taxation.

Similar conclusions were reached by other courts. Thus, taxpayers, in the event of disagreements with tax authorities regarding the taxation of loans, have a real chance of proving their case in court and winning the dispute.

When the article was published, the financial department issued a letter in favor of the taxpayer. Letter dated 04/02/2007 No. 03-11-04/2/78: due to the fact that Art. 250 of the Code does not provide for the inclusion in non-operating income of taxpayers of amounts of material benefits under interest-free loan agreements; organizations applying the simplified taxation system should not determine the amounts of material benefits under such agreements.

During the development of economic and commercial activities between companies, it is possible to transfer assets free of charge, under a gift agreement. This means that the recipient of the assets does not fulfill the reciprocal obligations of the donor. If the donor is a legal entity and the amount of transferred property is more than 5 minimum wages, then the gift agreement is drawn up in writing.

Accounting for gratuitously transferred assets

The gratuitous transfer of fixed assets is the income of the enterprise. Acceptance for accounting is carried out on the date of provision and at market prices of assets, taking them into account as other income parts (clause 7 of PBU 9/99). The estimated value at market prices cannot be lower than the amount of the residual value of the object according to information from the transferring party.

The market value of the asset that is transferred by the donor is determined according to the statistical indicators of this asset, according to information from the manufacturer, and according to expert opinions.

Its initial amount includes all costs associated with additional costs for transportation, restoration, repairs and more.

In accounting, the definition of gratuitously received property for other income is distributed gradually, in relation to the period of time of its use, simultaneously with the calculation of depreciation charges. The initial cost of fixed assets relates to the income portion of future periods (account 98.01). An asset is included in the income group after both parties sign a document on acceptance and transfer of fixed assets.

You need to know: organizations that have received fixed assets free of charge may not be charged income tax if the founder of the organization has 50% or more of the authorized capital of the contribution of the receiving organization. The amount of the asset received is not considered income for the purpose of calculating income tax if one year is not sent to third parties.

Examples of accounting for gratuitously acquired property

Example No. 1: accounting for the gratuitous transfer of fixed assets from the parent company.

The director, represented by the founder of Vesna LLC, decided to transfer Beloshveyka LLC on the basis of free use of the OS at a market value of 450,000 rubles. The basis for the transfer of fixed assets is the decision of the founder and the act of acceptance and transfer of the asset.

The accountant of Beloshveyka LLC prepares accounting records:

• Dt08 Kt98.01 – 450,000 rub. – shows the value of an asset acquired from the founder for free use;
• Dt01 Kt08 – 450,000 rub. – put the OS into operating mode.

The founder's share in the authorized capital of Vesna LLC is 100%, therefore the amount of property transferred free of charge is not subject to income tax. The period of time for the useful use of the object is 5 years.

Depreciation charge for fixed assets: 450,000:60 (months) = 7,500 rubles.

Depreciation accounting begins from the month the object is entered into the workflow with the following entries:

• Dt23,25,26,44 Kt02 – 7500 – depreciation charges for the accepted asset;
• Dt98.01 Kt91.01 – 7500 – the amount of the income portion when using operating systems purchased free of charge;
• Dt68 “Calculations for income tax” Kt99 “Profits and losses” - 1500 rubles. (7500x20%) – the amount of a permanent tax asset is accrued from the amount of property income, without increasing the income tax.

Advice to managers: when transferring fixed assets from a parent company to a subsidiary for free use, income tax does not increase, provided that:

• The founder's share in the authorized capital is over 50%;
• The OS will not be given to third parties for one year.

If such a transaction does not meet these conditions, managers should clearly state in the minutes of the general meeting of all participants that the purpose of transferring the operating system to a subsidiary is to increase net assets.

Example No. 2: accounting of fixed assets transferred free of charge from one of the founders.

Vesna LLC acquired the OS from the founder free of charge. The founder's share in the authorized capital is more than 50%. An independent appraisal commission assessed the transferred fixed asset at market prices in the amount of RUB 598,000.

The OS was delivered to its destination by a transport company under a contract for the provision of transport services, the amount of work performed was 6,750 rubles. (including VAT 1030 RUR). Restoration work was carried out by contractors, the amount of services amounted to 31,500 rubles. (including VAT RUB 4,805).

Upon receipt of accompanying documents, an OS acceptance and transfer certificate is drawn up and accounting entries are made:

• Dt08 Kt98.02 – 598,000 rub. – the market value of the OS on a free basis, which is included in the OS;
• Dt08 Kt60 – (6750-1030)+(31500-4805)=32415 rub. – additional costs for fixed assets are reflected (transportation and installation excluding VAT);
• Dt19 Kt60 - 1030+4805=5835 rub. – VAT reflected;
• Dt01 KT08 – 598,000+32415=630,415 rub. – acceptance for accounting and commissioning;
• Dt68 “VAT” Kt19 – 5835 rub. – deduction of VAT on additional costs;

For depreciation charges, the amount is 630,415 rubles. The useful life of the asset is 96 months. Let's calculate depreciation:

• Dt23,25,26,44 Kt02 – 630,415/96 (months) = 6566.83 rub.;
• Dt98.1 Kt91.01 – 6566.83 rub. – the income amounts of the asset received free of charge are taken into account;

In our case, income does not arise during tax accounting, which means that when maintaining accounting, every month the accountant, as depreciation charges are calculated, makes a new entry in the accounting register:

• Dt68 “Calculations for income tax” Kt99 “Permanent tax assets” - 6566.83x20% = 1313.37 rubles. – reflects the amount of OS income accepted from the founder, without charging income tax.

It is important to take into account that the company does not have the right to transfer fixed assets on the basis of gratuitous use if the transferring and receiving legal entities have the same founder, manager, etc. It is not prohibited to carry out such a transaction between different founders of companies.

Example No. 3: accounting for the gratuitous transfer of fixed assets with charitable assistance.

The company Master LLC decided to provide charitable assistance to a medical institution by donating equipment with an initial cost of 80,000 rubles. at the time of transfer of equipment, the depreciation amount was 11,000 rubles.

The following entries are entered into accounting:

• Dt01 “Retirement of fixed assets” Kt01 “Fixed assets” - 80000 - written-off amount of equipment;
• Dt02 Kt01 “Disposal of fixed assets” - 11000 - depreciation of equipment;
• Dt91 Kt01 – 69000 – the balance amount for the equipment is written off;
• Dt99 Kt91 – 69000 – reflection of loss from the transfer of equipment.

Free transfer of assets to assist charitable purposes can be carried out for the following cases:

• Social assistance and protection of the population;
• Help for victims after a natural disaster;
• Help to protect children, mothers and fathers;
• Assistance for educational, cultural, scientific institutions;
• Help for preventive work to improve people's health;
• Assistance in the field of sports physical education;
• Help for the conservation of nature and wildlife.

It is important to know: charitable donations are exempt from VAT. The basis for this requires a package of documents:

1. Agreement for charitable purposes, transferred assets free of charge;
2. Documents that confirm the result of the transfer and acceptance of assets by the recipient organization;
3. Documents confirming the intended intended use of the transferred asset.

If an organization is the recipient of fixed assets free of charge, then this is considered a receipt of assets and an increase in the income side of the enterprise. If an enterprise transfers assets, then this is considered a disposal of fixed assets and a loss for the organization.

Who wouldn’t be pleased by the opportunity to use someone else’s property for free for their own purposes, or, moreover, to receive it as their own! However, like any barrel of honey, there is a fly in the ointment. In this case, this is the problem of calculating income tax.

First of all, it is worth noting that for tax purposes it is necessary to distinguish between concepts such as “free receipt of property” and “free receipt of property for use.” In the first case, the property is transferred free of charge into the ownership of the receiving party forever. But in the second case, the transfer of ownership of the transferred object does not occur, and the transfer is carried out only for a certain period. That is, after a certain period of time, the receiving party will have to return the property to its owner.

"Own" income

If an organization receives property free of charge, then when calculating income tax, it must reflect its value as part of non-operating income (clause 8 of Article 250 of the Tax Code). True, like any rule, this statement also turned out to be not without exceptions, but we’ll talk about it a little later.

So, the property was received gratuitously, that is, free of charge. Then the question arises: how to determine its value, which the company must take into account when taxing profits?

The already mentioned paragraph of Article 250 of the Tax Code establishes that the value of such a gift should be assessed based on market prices determined taking into account the provisions of Article 40 of the Code.

Moreover, if we are talking about depreciable property, then the amount of such assessment cannot be lower than its residual value. And the cost of work, services or non-depreciable property received free of charge is less than the sum of the costs of their implementation, provision, production or acquisition.

In addition, it should be remembered that information about the value of the property received will still have to be confirmed documentaryly or through an independent assessment.

Free, but not for nothing

As mentioned above, the provisions of paragraph 8 of Article 250 of the Tax Code apply to property received into ownership. But what if the property was also received free of charge, but not for ownership, but for use?

In the Information Letter of the Presidium of the Supreme Arbitration Court dated December 22, 2005 No. 98, the receipt of property for free use is equated to the receipt of a property right, which means that the norms of the above-mentioned paragraph of Article 250 of the Code also apply to the transfer of property for free use.

Moreover, it should be noted that not only the members of the Presidium of the Supreme Arbitration Court came to a similar conclusion; a similar position was stated in the letter of the Ministry of Finance dated April 4, 2007 No. 03-03-06/4/37.

The Ministry of Finance believes that when taxing profits, a company that uses someone else's property free of charge must take into account the income received. However, according to financiers, when determining the tax base for the “profitable” tax, a company can take into account not only the income associated with such property, but also the costs of its maintenance. Of course, subject to their documentary evidence and economic justification (clause 1 of Article 252 of the Tax Code).

Now let's try to figure out how to evaluate the amount of income received by the company in this case? The procedure for calculating income for this situation is not established in tax legislation. Therefore, representatives of the Ministry of Finance believe in letter No. 03-11-04/2/260 dated December 11, 2006, organizations have the right to independently determine the procedure for assessing income received from the gratuitous use of someone else’s property. As an option, financiers suggest using an income assessment similar to the procedure for determining market prices for goods. However, the final decision still remains with the company itself.

At the same time, in their earlier letter - dated April 19, 2006 No. 03-03-04/1/359 - representatives of the Ministry of Finance spoke much more categorically. They considered that it is necessary to apply a procedure for assessing income similar to that prescribed in Article 40 of the Tax Code, that is, taking into account market prices. No other options for calculating the amounts of income received were discussed in the said letter.

An exception

As mentioned above, when property is received free of charge, taxable income does not always arise. An exception is the situation described in subparagraph 11 of paragraph 1 of Article 251 of the Tax Code. We are talking about the free receipt of property from the founder, whose share in the authorized capital of the receiving company is more than 50 percent. Similar rules apply in the reverse situation, when the receiving party owns more than 50 percent of the shares of the party transferring the property. In this case, there is no income either.

True, the provisions of the mentioned norm of tax legislation apply to property received free of charge only if it is not transferred to third parties within one year. The only exception is funds received free of charge. They can be spent by the taxpayer at any time (letter of the Ministry of Finance dated April 19, 2006 No. 03-03-04/1/360).

However, these provisions are applicable when it comes to the gratuitous transfer of property into ownership. If only the right to use the object is transferred, then, despite the presence of the circumstances mentioned in subparagraph 11 of paragraph 1 of Article 251 of the Code, the recipient company will still have to pay. In other words, no matter what share the founder who made such a gift to the company owned, the economic benefit from the gratuitous use of the property will need to be calculated and included in non-operating income.

Moreover, in such a situation, even those organizations that do not pay this tax as such due to carrying out activities subject to UTII will be required to transfer the corresponding amounts of “profitable” tax to the budget to the budget. This thesis was recently confirmed by specialists from the Ministry of Finance in a letter dated October 22, 2008 No. 03-11-04/3/468. After all, paragraph 7 of Article 346.26 of the Tax Code stipulates that taxpayers carrying out other types of activities along with the “imputed” ones are required to keep separate records of property, liabilities and business transactions. So the “imputed” person has no obstacles to calculating income tax.