Agreement for the gratuitous use of loans taxation. Free use of property: contract execution, accounting, taxation

Free use of property (loan, article 689 of the Civil Code of the Russian Federation) is a fairly common agreement in Russian business practice. Most often, property is transferred for gratuitous use (hidden or explicitly) by interdependent organizations.

Unfortunately, from a tax point of view, it is difficult to avoid losses in such a situation: the lender will not be able to charge depreciation on such an object or, for example, take into account the costs of current repairs or reimbursement of the cost of inseparable improvements to donated property. In addition, the lender will have to pay property tax on the value of the object (since it remains on the balance sheet, paragraph 1 of article 374 of the Tax Code of the Russian Federation). Despite the fact that the company does not use this object and it does not bring income to it. And the borrower is obliged to pay income tax on the economic benefit he virtually received from the free use of the facility (clause 8, article 250 of the Tax Code of the Russian Federation).

Moreover, attempts by any of the parties to the agreement to reimburse tax losses to the other party (for example, the borrower's income tax or the lender's property tax and depreciation) only lead to additional difficulties. Tax officials believe that for both companies such costs will be economically unjustified and not aimed at generating income. Therefore, they cannot be taken into account in tax expenses.

Based on such specifics of the contract for gratuitous use, tax planning of the consequences of such a transaction becomes especially important.

The main problem for the borrower is income tax, which the tax authorities require to pay from savings on rent

SIZE OF ECONOMIC BENEFITS

As we have already indicated, the main problem for the borrower is income tax, which the tax authorities require to pay in accordance with paragraph 8 of Article 250 of the Tax Code of the Russian Federation from savings on rent. After all, the user of the property could pay rent, but received the property for free.

Note that paragraph 8 of Article 250 of the Tax Code of the Russian Federation mainly refers to property received free of charge. There is only a mention of property rights, but there is no clear procedure for determining the tax base. But both the Ministry of Finance and the Supreme Arbitration Court of the Russian Federation are unanimous in their position: the tax must be paid. Income in the form of gratuitously received property rights (in this case, the right to use) is included in non-operating income borrower (information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 98 dated December 22, 2005, letters of the Ministry of Finance dated February 17, 06 No. 03-03-04 / 1/125, dated March 30, 07 No. 03-03-06 / 4/33 and dated April 19, 06 No. 03-03-04/1/359). Therefore, arguing with the tax authorities on the issue of whether, in principle, it is necessary to pay income tax on the economic benefits from the gratuitous use of property is currently futile.

However, there are ways to minimize your tax losses. To do this, it is advisable to minimize the estimated value of economic benefits. That is, calculate it in the most beneficial way for the company, and then be able to protect your calculation method during verification. Moreover, the Ministry of Finance recognizes for the taxpayer (within certain limits) the right to choose the methodology for calculating the amount of economic benefit from the gratuitous use of property (letters dated 07.05.07 No. 03-03-06/4/54, dated 08.08.07 No. 06/1/545).

What are these options? The Tax Code itself suggests two options (clause 8, article 250 of the Tax Code of the Russian Federation). Firstly, this is an assessment of income based on market prices, determined taking into account Article 40 of the Tax Code of the Russian Federation. Moreover, such a calculation must be documented by the taxpayer-borrower himself with information on market prices or an independent assessment. The application of this approach in practice is hampered by the fact that in this case it is incorrect to analyze the market prices for the lease of such property (as, for example, the Ministry of Finance suggests in a letter dated 04.02.08 No. 03-03-06/1/77). Indeed, from the point of view of the Civil Code, rent (Chapter 34 of the Civil Code of the Russian Federation) and gratuitous use (Chapter 36 of the Civil Code of the Russian Federation) - different types contracts.

The second option is also spelled out in paragraph 8 of Article 250 of the Tax Code of the Russian Federation. The basis for calculating the economic benefit in the second option is the residual value of depreciable property or the acquisition price of non-depreciable property. The possibility of using this option is also allowed by the Ministry of Finance (letter No. 03-03-06 / 1/545). However, the mechanism of such a calculation is not clear - it is not in the said letter either. After all, it is one thing to pay income tax on the entire residual value of the object (in equal installments during the term of the contract), another thing is to adjust this value for the term of the contract. That is, to accept as an economic benefit the amount of the monthly depreciation of the object from the tax accounting of the lender (in this case, the total amount of economic benefit will be equal to the residual value in the share attributable to the term of the contract). Obviously, the latter option is more profitable.

Considering the vagueness of the provisions of the Tax Code regarding the calculation of the economic benefit on a loan (and this is recognized even by the Ministry of Finance in letter No. choose the method that suits you best. Moreover, develop your own, based on the specifics of your activity.

EXPERT COMMENT
Valery BAKHTIN, expert of the CG “What to do Consult”:
- The calculation method, in which the residual value is adjusted for the term of the loan agreement, is in fact the only one that can be documented. It is also the most acceptable, since it entails a minimum tax burden.

HOW TO ACCOUNT MAINTENANCE COSTS IN TAX EXPENSES

Problems in the transfer of property for gratuitous use may also arise from the lender. What to do, for example, if, in accordance with a loan agreement (Article 695 of the Civil Code of the Russian Federation allows this), the costs of maintaining the property and maintaining it in proper form are borne by the owner of this property? According to the tax authorities, such expenses do not meet the definition of expenses that reduce the income tax base - they are not economically justified and are not aimed at generating income. Therefore, when checking, the tax authorities will exclude them (for example, a letter from the Federal Tax Service for Moscow dated 01.04.05 No. 19-11 / 21525).

Naturally, it is desirable to provide for such a situation already at the stage of concluding an agreement on the gratuitous use of property and not to include such conditions in the agreement.

But what if the dependent company that received the loan simply does not have the funds to pay the current costs of the property? There are several ways to solve this problem And don't lose out on taxes.

First, you can try to prove that such expenses are aimed at generating income. To do this, you need to conclude agreements of intent (or contracts for the right to lease) with a third party. In accordance with which this third party undertakes to lease the specified property of good quality in the future. In this case, the current repair of the object is preparatory work for renting it out and generating income. And it does not matter if the lease agreement is never concluded - the real intention of the company to receive income is important.

"Tax authorities often try to refuse the parties to the contract of gratuitous use in accounting for the costs of repairing the transferred property"

OPINION PRACTICE
Ilya ANTONENKO, financial director of the group of leasing companies "Northern Venice" (St. Petersburg), leading expert of the "National Consulting Company":
- Tax authorities often try to deny the parties to the contract of gratuitous use the possibility of accounting for income tax purposes the costs of repairing property transferred (received) for gratuitous use. Based on arbitration practice, if under a gratuitous use agreement the obligation to repair property is assigned to the borrower, the latter is clearly entitled to accept such expenses for profit taxation purposes (Resolution of the Federal Arbitration Court of the East Siberian District dated 04.07.07 No. A33-8475 / 06-Ф02 -4023/07).

As for the situation when the lender bears similar expenses under the terms of the agreement, in my opinion, Chapter 25 of the Tax Code of the Russian Federation allows such expenses to be taken into account even in the absence of a preliminary lease agreement for property transferred for free use. If the property transferred for gratuitous use before the conclusion of the loan agreement was used by the lender in activities aimed at generating income (including for servicing a business process, for example, office furniture), it can be argued that after the end of the loan agreement, such property will be used by the lender for the same purposes. To use the property with the same effect, it is necessary to maintain it in working condition, which explains the economic need for its repair during the term of the loan agreement.

Secondly, cash necessary to maintain the property in good condition can be transferred to a dependent company without tax losses. For example, free of charge (if one company controls another by more than 50%) or under a loan agreement. It is clear that this method will not help the lender to take into account the current costs of servicing his property in tax expenses, but will help finance the implementation of such costs from the borrower without losing on taxes.

In order for the borrower not to pay income tax from economic benefits, you can add an element of retribution to the contract

REIMBURSEMENT OF THE COST OF INDIVIDUAL IMPROVEMENTS TO THE LENDER

In the course of its activities, the borrower can (or even is forced to) improve the received property, for example, reconstruct, re-plan, re-equip, that is, make capital investments, making inseparable improvements. At the same time, if the owner of the property under the contract is obliged to reimburse the cost of such improvements, a problem arises - such expenses reduce the income tax base only through depreciation (clause 1, article 256 of the Tax Code of the Russian Federation). But the company is not entitled to accrue it on the property transferred for free use (clause 3 of article 256 of the Tax Code of the Russian Federation).

Of course, you can wait until the contract expires and the property returns to the owner's balance, and then start depreciating inseparable improvements. However, this option is unprofitable for the company, since for a long time it will not be able to take into account such expenses.

Another solution to the problem may be to fix the provision in the contract that the cost of inseparable improvements is not compensated to the borrower. In this case, the user of the property will depreciate capital investments during the term of the contract, based on its useful life (clause 1, article 258 of the Tax Code of the Russian Federation). But firstly, if it is an interdependent organization that does not have the necessary financial resources to carry out major repairs, this option is simply not possible. And secondly, the borrower can already lose on taxes if the term of the contract for the gratuitous use of property is shorter than the useful life of inseparable improvements. Such a situation can occur, for example, when remodeling an office: include the cost of inseparable improvements in tax expenses the borrower can only in a small part, since the useful life of the building most often longer term free use of the premises. If the cost of inseparable improvements is decided to be compensated, the best option one sees the transfer of such compensation immediately after the end of the loan agreement (in order to immediately begin to amortize them - clause 2 of article 259 of the Tax Code of the Russian Federation and only from that time to start paying property tax on the cost of such improvements - clause 1 of article 374 of the Tax Code of the Russian Federation) .

For interdependent companies, the cost of inseparable improvements is more profitable not to compensate. In this case, the total tax burden of the group of companies will begin to decrease not at the end of the contract, but immediately after the borrower starts accruing depreciation (clause 1, article 258 of the Tax Code of the Russian Federation).

COMPENSATION FOR LOSSES UNDER THE LOAN CONTRACT IS RISKY

As we said above, a company that has transferred property for free use and wants to compensate for its losses (the amount of property tax and depreciation) at the expense of the lender as expenses for the maintenance of property, the tax authorities will not accept such expenses. In particular, this conclusion was made by the Federal Tax Service for Moscow in a letter dated 09.01.08 No. 18-11/000184.

According to the tax authorities, such expenses for the lender will be unreasonable and should not reduce the income tax base. The tax authorities point out that the borrower has the right to take into account, for the purposes of taxation of profits, the costs associated with the use and maintenance of property received under a contract for gratuitous use (including if such costs are reimbursed to the lender under the contract). However, depreciation and payment of property tax are not such expenses and are solely the responsibility of the lender.

Despite the fact that the position of the tax authorities on this issue is quite controversial (and there is no arbitration practice yet), the inclusion of such conditions in the loan agreement is risky. You will have to defend your rightness in court. In addition, if the company still wants to receive some money from the user of the property, then why not conclude a lease agreement? Moreover, the contract for gratuitous use, under which any compensation is paid, the court may consider a sham transaction that covers the lease agreement.

INCOME TAX MAY NOT BE PAYED AT ALL
In order for the borrower not to pay income tax on the economic benefit from property received free of charge, an element of compensation can be included in the contract. This method was directly suggested by the Ministry of Finance itself in a letter dated 14.01.08 No. 03-03-06 / 1/4. Thus, the officials referred to paragraph 2 of Article 248 of the Tax Code of the Russian Federation, according to which, for the purposes of taxation of profits, property (or property rights, as in our case) is considered received free of charge if the receipt of this property is not associated with the occurrence of counter obligations by the recipient.

Thus, if the company links the transfer of property with some additional conditions (the obligation of the recipient to provide services, carry out work, etc.), it is not considered to be transferred free of charge, therefore, non-operating income does not arise and the recipient does not have to pay income tax. Such accompanying conditions, for example, may be the obligation to repair the received premises, provide consulting services or carry out activities in the transferred premises for the benefit of the lender (for example, to produce goods for him). Moreover, it is desirable that these additional terms followed from the contract of gratuitous use.

Issue dated September 16, 2011

Questions and answers on accounting and taxation

A selection based on materials from the information bank "Financier" of the ConsultantPlus system. Compiled by Kashirskaya E.V.

Question:

An individual entrepreneur applying the simplified tax system (with the object of taxation "income"), an individual, under a contract for gratuitous use, was transferred non-residential premises. The gratuitous use agreement concluded between an individual and an entrepreneur states that the entrepreneur has the right to lease non-residential premises.

The entrepreneur leased the non-residential premises. In accordance with paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, based on the results of the reporting period, the entrepreneur determined income from the lease of property equal to the amount of rent received for the reporting period. The object of taxation in this case will be income in the form of rent received for the use of non-residential premises.

In accordance with paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation, when determining the object of taxation, non-operating income, determined in accordance with Art. 250 of the Tax Code of the Russian Federation. Clause 8 of Art. 250 of the Tax Code of the Russian Federation provides for the attribution to non-operating income of the taxpayer of income in the form of property rights received free of charge. Paragraph 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 N 98 contains conclusions on the possibility of assessing the income received from the gratuitous use of property based on the commonly used rental rates charged for the use of similar property. The specified conclusion is also confirmed by the Letter of the Ministry of Finance of Russia dated 11.12.2009 N 03-03-06/1/804. Thus, the object of taxation in determining non-operating income will also be income in the form of rent received for the use of non-residential premises.

In what order should an entrepreneur take into account income from the provision of services for the provision of property for rent (sublease) when determining the tax base for tax paid in connection with the application of the simplified tax system?

Answer:

In accordance with Art. 689 Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation) under an agreement for gratuitous use (loan agreement), one party (the lender) undertakes to transfer or transfers the thing for gratuitous temporary use to the other party (the borrower), and the latter - to return the same thing in the condition in which it received it , subject to normal wear and tear or in the condition stipulated by the contract.

The rules on the lease agreement, provided for by separate provisions of Art. Art. 607, 610, 615, 621 and 623 of the Civil Code of the Russian Federation.

Paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation (hereinafter referred to as the Code), it is established that taxpayers, when determining the object of taxation, take into account sales revenues determined in accordance with Art. 249 of the Code, and non-operating income, determined in accordance with Art. 250 of the Code.

Based on Art. 250 of the Code, non-operating income is income not specified in Art. 249 of the Code. At the same time, according to paragraph 8 of Art. 250 of the Code, non-operating income includes income in the form of gratuitously received property (works, services) or property rights, except for the cases specified in Art. 251 of the Code.

Upon receipt of property (works, services) free of charge, the assessment of income is carried out on the basis of market prices, determined taking into account the provisions of Art. 40 of the Code, but not lower than determined in accordance with Ch. 25 of the Code of Residual Value - for depreciable property and not less than the cost of production (acquisition) - for other property (work performed, services rendered). Information on prices must be confirmed by the taxpayer - the recipient of property (works, services) documented or by an independent assessment.

Thus, a taxpayer applying the simplified taxation system, who receives property for gratuitous use under an agreement, includes income in the form of a gratuitously received right to use property, determined on the basis of market prices for the lease of identical property, excluding value added tax.

Income in the form of gratuitously received property (works, services) or property rights and income received in connection with the further transfer of such property for rent (sublease) should be considered as income received in connection with the implementation of various operations (various activities).

According to paragraph 4 of Art. 250 of the Code, non-operating income of a taxpayer also includes income from the delivery of property (including land) for rent (sublease), if such income is not determined by the taxpayer in the manner prescribed by Art. 249 of the Code.

Given the above, income from the provision of services for the provision of property for rent (sublease) is taken into account by the taxpayer as part of income when determining the tax base for tax paid in connection with the application of the simplified taxation system, as non-operating income or income from the sale of services.

Paid and gratuitous use of property: tax consequences for an organization applying the simplified tax system

The question came to the consultation line of the Information Analytical System “1C: Consulting. Standard" in October 2008

An organization applying the simplified tax system (object of taxation - income minus expenses) plans to use non-residential premises owned by an individual in its activities. The company is considering two options: paid and gratuitous use of such premises.

In this regard, the accountant is interested in what tax consequences occur for the organization in each of these options?

The specialist of the project Information Analytical System “1C: Consulting. Standard": auditor, Ph.D. Marina Ozerova

1) Rent of non-residential premises -

Under a lease agreement, the landlord undertakes to provide the tenant with property for a fee for temporary possession and use or for temporary use (clause 1, article 606 of the Civil Code of the Russian Federation).

In the Information Analytical System “1C: Consulting. Standard” for more details on the conclusion of a lease agreement, as well as its main provisions, see the topic “Lease agreement ( general provisions)” of the subsection “Rent. Leasing” section “Liabilities. Agreements".

With this option, the use of non-residential premises tax consequences for the organization - the tenant will be as follows.

1. Fulfillment of duties of a tax agent.

Income received by an individual from the lease of property is subject to personal income tax (clause 4, clause 1, article 208 of the Tax Code of the Russian Federation).

In the event that an individual is not registered as an individual entrepreneur, the organization from which the taxpayer received income is obliged to calculate, withhold and pay personal income tax to the budget (clause 1 of article 226 of the Tax Code of the Russian Federation). Please note: organizations applying the simplified tax system are not exempt from the duties of tax agents provided for by the Tax Code of the Russian Federation (clause 5 of article 346.11 of the Tax Code of the Russian Federation).

Taxation is based on the tax rate13 percent(Clause 1, Article 224 of the Tax Code of the Russian Federation).

In accordance with paragraph 4 of Art. 226 of the Tax Code of the Russian Federation, the organization is obliged to withhold the accrued amount of tax directly from the income of the taxpayer upon actual payment.

Thus, an organization applying the simplified tax system is obliged, with each payment of rent to a lessor - an individual (not registered as an individual entrepreneur), to calculate, withhold and transfer personal income tax from the income of such a person to the budget.

In addition, a tenant organization that is a tax agent shouldsubmit to the tax authority at the place of its registration information on the income of an individual - lessor of this tax period and the amounts of taxes accrued and withheld in this tax period annually no later than April 1 of the year following the expired tax period (clause 2, article 230 of the Tax Code of the Russian Federation). To do this, a certificate of income of an individual is drawn up (form 2-NDFL), approved by Order of the Federal Tax Service of Russia dated October 13, 2006 No. SAE-3-04 / [email protected]

2. Recognition as an expense of rent.

In accordance with paragraphs. 4 p. 1 art. 346.16 of the Tax Code of the Russian Federation, in order to calculate a single tax under the simplified tax system, the income received is reduced by rental payments for leased property. Please note: pp. 4 p. 1 art. 346.16 of the Tax Code of the Russian Federation does not prohibit accounting for expenses under lease agreements with individuals.

Thus, an organization applying the “simplification” has the right to take into account the costs of rent for a leased premises owned by an individual.

In addition, it should be taken into account that:

amounts of personal income tax withheld from income in the form of rent,cannot be included in expenses.when determining the tax base by an organization applying the simplified tax system (letter of the Ministry of Finance of Russia dated May 12, 2008 No. 03-11-04 / 2/84);

payments made to an individual who is a lessor on the basis of a concluded lease agreement are not subject to UST taxation, which means that they are not charged insurance premiums for compulsory pension insurance(letter of the Federal Tax Service of the Russian Federation for the city of Moscow dated April 20, 2007 No. 21-18 / 340).

2) Free use of non-residential premises -

According to the rules of civil law, in the case of gratuitous use of property, a contract for gratuitous use (loans) is concluded.

Under a gratuitous use agreement (loan agreement), one party (the lender) undertakes to transfer or transfers the thing for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same thing in the condition in which it received it, taking into account normal wear and tear or in the condition stipulated by the contract (clause 1 of article 689 of the Civil Code of the Russian Federation).

In the Information Analytical System “1C: Consulting. Standard” for more details on the conclusion of a contract for gratuitous use, as well as its main provisions, see the subsection “Agreement for gratuitous use” of the section “Obligations. Agreements".

For the borrower - an organization applying the simplified tax system - such an option will lead to the need take into account income for tax purposesin the form of a gratuitous right to use property,the amount of which is determined based on market pricessubject to the provisions of Art. 40 of the Tax Code of the Russian Federation.

Let's explain in more detail.

When receiving property under a gratuitous use agreement, the organization acquires the right to use this property free of charge. Based on this, officials point out, for the purposes of taxation when applying the simplified tax system, the receipt of property for free use should be considered as a free receipt of property rights. For a taxpayer-borrower, income in the form of property rights received free of charge is subject to inclusion in non-operating income on the basis of clause 8 of Art. 250 of the Tax Code of the Russian Federation (clause 1 of article 346.15 of the Tax Code of the Russian Federation). As a result, an organization that has received, under a gratuitous use agreement, the right to use property (i.e. a property right), takes into account income for tax purposesin the form of a gratuitous right to use this property, the amount of which is determined on the basis of market prices, taking into account the provisions of Art. 40 Tax Code of the Russian Federation(See, for example, Letter No. 03-11-05/54 of March 6, 2008 of the Russian Ministry of Finance). The financiers remind that this conclusion is confirmed by the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 No. 98 (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).

Letter No. 03-11-04/2/13 dated January 25, 2008 of the Ministry of Finance of Russia clarified that the procedure for assessing income associated with the gratuitous receipt of property rights was not established by the Tax Code of the Russian Federation, in this regard, the taxpayer has the right to independently determine the procedure for assessing income associated with gratuitous acquisition of property rights. Consequently, the officials believe, when obtaining property rights free of charge, in particular the rights to use property, the taxpayer can evaluate income based on market prices for property rights(by analogy with the procedure for determining market prices for goods, works, services). Thus, a taxpayer who receives property for gratuitous use under an agreement includes income in the form of a gratuitously obtained right to use property, determined on the basis of market prices for the lease of identical property, in income.

So, the borrowing organization at the time of obtaining the right to use the property should include the cost of such a right in the tax base for a single tax on the date of signing the act on the transfer of property rights. The amount of the right to use the property must be assessed based on market prices.

After considering the issue, we came to the following conclusion:
If the lender wants to avoid tax risks, then when transferring equipment for free use, it is necessary to charge VAT, issue an invoice (in one copy) and register it in the sales book.
When granting property for gratuitous use, the lender does not receive income taken into account when determining the tax base for income tax. The costs associated with a gratuitous transfer are also not taken into account for income tax purposes.
Property transferred for gratuitous use commercial organization, is excluded from the depreciable property of the lender from the month following the month of transfer of property.

Rationale for the conclusion:
In accordance with the Civil Code of the Russian Federation, under a gratuitous use agreement (loan agreement), one party (the lender) undertakes to transfer or transfers the thing for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same thing in the condition in which it received it, subject to normal wear and tear or in the condition stipulated by the contract.
On the basis of the Civil Code of the Russian Federation, the rules provided for by the Civil Code of the Russian Federation in relation to a lease agreement are accordingly applied to the contract for gratuitous use.

According to the Tax Code of the Russian Federation, the object of VAT taxation is recognized, in particular, operations for the sale of goods (works, services) in the territory of the Russian Federation.
At the same time, for the purposes of the Tax Code of the Russian Federation, the transfer of ownership of goods, the results of work performed, the provision of services free of charge is also recognized as the sale of goods (works, services).
According to official bodies, when transferring property for free temporary use under a loan agreement, the lender has an object of VAT in the form of the cost of services rendered free of charge 08/06/2012 N , from 07/29/2011 N , from 02/04/2011 N ).
Often, this position of officials was also supported by judges (see, for example, the FAS of the East Siberian District of November 20, 2012 N A78-4990 / 2011, the West Siberian District of May 3, 2011 N A46-8306 / 2010, the North-Western District of 10.10. 2008 N A44-157 / 2008, Ural District dated 05.27.2009 N F09-3247 / 09-C2 and dated 08.20.2007 N F09-6476 / 07-C2, Central District dated 08.26.2011 N A64-3070 / 2010).
Based on the provisions of the Tax Code of the Russian Federation, when selling services on a gratuitous basis, the tax base is determined on the basis of prices prevailing in the market of similar services in comparable economic conditions, in particular, income from leasing similar property. In this case, VAT is paid at the expense of the transferring party, since the lender does not present the amount of tax payable to the borrower.
The fact that the borrower can perform work (render services) exempt from VAT taxation, in particular, on the basis of the Tax Code of the Russian Federation, does not, in our opinion, affect the procedure for taxation of the equipment transfer operation in question.
At the same time, there are solutions arbitration courts, in which the judges came to the conclusion that the Tax Code of the Russian Federation does not establish as an object of taxation operations for the gratuitous temporary transfer of rights to use property. Consequently, when transferring property for gratuitous use, VAT is not charged and paid by the lender (see, for example, FAS of the West Siberian District of November 12, 2010 N A46-4140 / 2010, FAS of the Volga District of March 6, 2007 N, FAS of the Moscow District of June 29 .2006 N KA-A41/5591-06).
If your organization decides not to calculate VAT on the transfer of equipment to the borrower, then in this case, in our opinion, there are significant tax risks. In this case, the purpose of the transfer of equipment does not matter.

For your information:
At the same time, it should be borne in mind that in a number of cases, when transferring property for free use, an object of taxation for VAT does not arise.
Such cases include, in particular, the provision of services for the transfer of fixed assets for free use to state authorities and administrations and local governments, as well as state and municipal institutions, state and municipal unitary enterprises (TC RF).
Therefore, if, for example, the borrower is a state or municipal unitary enterprise, then the transfer to him for gratuitous use of equipment accounted for by the lender as part of fixed assets is not subject to VAT.

income tax

Based on the Tax Code of the Russian Federation, income is recognized as an economic benefit in cash or in kind, taken into account if it is possible to assess it and to the extent that such benefit can be assessed.
When transferring equipment for gratuitous use, the ownership of it does not transfer to the receiving party. In addition, your organization does not receive payment for the property and its use. Thus, the provision of equipment for gratuitous use by the lender does not lead to the formation of income taken into account when determining the tax base for income tax. A similar opinion was reflected, for example, in the Ministry of Finance of Russia dated March 24, 2017 N 03-03-06 / 1/17043, dated November 26, 2013 N, dated October 31, 2008 N 03-11-04 / 2/163.
However, according to the Tax Code of the Russian Federation, the expenses incurred by the lender in connection with such a transfer are also not taken into account for income tax purposes.
If the equipment specified in the question is taken into account by the lender as part of fixed assets, then the following must be taken into account.
On the basis of the Tax Code of the Russian Federation, the Tax Code of the Russian Federation for tax purposes, an organization that transferred property for free use, according to general rule excludes such property from depreciable property from the month following the month of its transfer (see also the Ministry of Finance of Russia dated 01/16/2007 N 03-03-06 / 2/1, the Federal Tax Service of Russia for Moscow dated 10/31/2007 N).
An exception from January 1, 2015 is made up of fixed assets transferred for free use to state authorities and administrations and local governments, state and municipal institutions, state and municipal unitary enterprises in cases where this duty of the taxpayer is established by the legislation of the Russian Federation. On the basis of the Tax Code of the Russian Federation, depreciation accrued on the specified fixed assets transferred for free use to state authorities, etc., if this obligation is established by the legislation of the Russian Federation, is taken into account when determining the tax base.
After the end of the contract for gratuitous use and the return of property to the lender, depreciation is accrued by him in the manner determined by the Tax Code of the Russian Federation, starting from the 1st day of the month following the month in which the return occurred.
If property that is not depreciable is transferred for gratuitous use, then this does not entail any tax consequences for the lender.

We recommend that you read the following materials:
- . Agreement for gratuitous use;
- . Invoice for free transfer;
- . Taxation for gratuitous use. Borrower account.

Prepared answer:
Legal Consulting Service Expert GARANT
professional accountant Molchanov Valery

Answer passed quality control

The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.

Temporary use of real estate, including commercial purposes, is allowed both on a paid basis and free of charge. At the same time, gratuitous rent of non-residential premises intended for entrepreneurial activity, has its own characteristics.

If you do not know them, there is a high probability of filing claims from the tax. Therefore, in this article you will learn the features of leasing commercial non-residential premises free of charge between legal entities, as well as when the owner is an individual.

Also, let's talk about all important nuances, in addition, you can, which contains all the necessary and essential conditions. In general, we will try to help as much as possible to understand this issue.

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When does a contract for the gratuitous use of non-residential premises apply?

Many business representatives have a question whether a lease agreement can be free of charge. Let's answer right away - no. The fact is that from a legal point of view, a lease involves paying a fee for the use of property, no matter how long it is provided.

The use of property on a free basis is formalized by a loan agreement, which, however, has much in common with a lease agreement. In such a transaction, the parties are referred to as the lender and the borrower. However, within the framework of this material, we will continue to use the word "rent".

Between legal entities, a loan agreement (gratuitous lease) is used in cases where enterprises are closely related. And also often the property is provided free of charge for use. public organizations.

The gratuitous use agreement is also used when an object of cultural heritage is transferred in order to maintain it in proper condition.