What is the fixed portion of the rent? Renting residential and non-residential premises: controversial tax issues. We list all the advantages of renting

The principle of freedom of contract allows us to establish a mechanism for determining the size rent, convenient for the tenant and the landlord. This may be a fixed amount paid monthly, or an amount that includes reimbursement of maintenance costs for the leased facility. In the latter case, the wording of the contractual provision requires special attention.

The procedure, conditions and terms of payment of rent are determined by the lease agreement (clause 1 of Article 614 of the Civil Code), and in their absence, the procedure, conditions and terms of payment usually applied when leasing similar property under comparable circumstances are applied. A similar rule is established in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation for the contract price: if it is not included in the text of the agreement, the execution of the contract must be paid at the price that, under comparable circumstances, is usually charged for similar goods, work or services.

But when concluding a real estate lease agreement, this rule cannot be applied, since rent is its essential condition (Article 432 of the Civil Code of the Russian Federation). In the absence of a condition agreed upon in writing by the parties regarding the amount of rent, the real estate lease agreement is considered not concluded (Article 654 of the Civil Code of the Russian Federation).

The terms of the rent must be formulated in such a way that it is possible to determine exactly when and in what amount the tenant is obliged to make the appropriate payments. The agreement may establish a fixed amount of rent or the procedure (mechanism) for its calculation. In the latter case, the rental agreement will also be considered agreed upon.

The amount of rent may be changed by agreement of the parties within the time periods specified in the contract, but not more than once a year, unless otherwise provided by the contract (clause 3 of Article 614 of the Civil Code of the Russian Federation). A change in the amount of rent in accordance with the mechanism provided for in the agreement does not constitute a change in the lease agreement, and, therefore, is not subject to the restrictions mentioned above (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66, hereinafter referred to as Information letter No. 66). For example, the condition of indexing rent depending on inflation does not contradict this restriction. Although the amount of rent changes, the procedure for calculating it remains unchanged.

It is better to provide in the contract for the consequences of the loss of the lessor’s VAT payer status

It is recommended that the lease agreement specify whether the rent includes value added tax (VAT). And if it includes, then it will also be necessary to determine what part of the specified amount is rent, and which one is VAT. For example, indicate the current tax rate to avoid disputes in the future when the tax rate changes during the contract period. It is also recommended to indicate in the agreement that VAT is not charged on the rental amount if the lessor is not a payer of this tax.

All this must be done, since otherwise the parties may have disagreements regarding the amounts to be paid as rent. The position of the courts on this issue is ambiguous, and as a result, the lessor may receive rent in an amount less than expected (resolution of the Federal Antimonopoly Service of the West Siberian District dated September 17, 2010 in case No. A70-14225/2009), and the tenant may be forced to pay VAT in excess the amount of rent (Determination of the Supreme Arbitration Court of the Russian Federation dated February 10, 2010 No. VAS-1414/10 in case No. A51-7727/2009).

A situation is likely where initially the lessor was a VAT payer and in the contract the amount of rent was agreed upon taking into account the tax, but later the obligation to pay this tax ceased. For example, when the lessor switches to a simplified taxation system (clause 2 of Article 346.11 of the Tax Code of the Russian Federation) or in the event of a change in the owner of the leased property, if new owner is not a VAT payer. In this regard, it is in the interests of the tenant to include in the contract a condition that in the event of termination of the landlord’s obligation to pay VAT, the rent is reduced by the amount of the tax. If such a condition is not agreed upon, the court may refuse to satisfy the request for the return of overpaid rent in the amount of tax (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 05.08.2011 in case No. A43-24309/2010). At the same time, there is another position when the payment with the amount of VAT included in it is recognized as unjust enrichment of the lessor (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 15, 2010 in case No. A29-2100/2009).

Rent may include fixed and variable parts

Rent cannot be set as payment by the tenant utilities(electricity, water, heat), fuel, lubricants and other materials consumed when using the rental property. The fact is that with such a payment, the lessor actually does not receive any remuneration from the tenant for the granted right to use the leased object, and this contradicts the compensated nature of the agreement (clause 12 of Information Letter No. 66).

In order to reimburse the cost of utility services consumed by the tenant, the parties increasingly indicate in the agreement that the rent consists of two parts - constant and variable. The size of the constant part is determined as a fixed value (or the mechanism for calculating it), and the variable part is defined as the cost of utilities consumed by the tenant.

The condition defining the procedure for paying utility bills is an important point of the contract. After all, contracts with resource supply organizations are concluded by the lessor and invoices are issued in his name, and the lessee will have an obligation to reimburse such expenses if this is provided for in the agreement. Utility and other payments include the cost of water supply and sewerage services, telephone communications, consumed electricity, heat supply (gas supply), as well as fees for cleaning premises, garbage removal, etc.

Accounting for utility and operating payments as part of the rent is possible in several options. First, you can set a fixed rent, which already includes the cost of such payments. The tenant then pays a fixed rent each month. Secondly, it is permissible to determine the amount of rent without taking into account the cost of utilities, indicating the right of the tenant to independently enter into agreements with resource supply and service organizations. It should be taken into account that the conclusion of such agreements will entail the emergence of additional obligations for the tenant to such organizations. And thirdly, the parties have the right to establish a rent consisting of a fixed and variable part.

In the latter case, the rent consists of payment in part of the rented premises in the established amount ( permanent part) and rent in terms of reimbursement of the cost of utilities actually consumed by the tenant (variable part).

It is better to fix the amount of the variable part of the rent for each month separately

In practice, the amount of rent in terms of reimbursement of the cost of electrical energy consumed by the tenant is determined either on the basis of the electricity meter readings, separately installed for the tenant, or on the installed power by taking into account the power of all electrical appliances operating in the premises and the approximate duration of their operation. The amount of water or gas consumed can also be determined by the meter. Calculation of the cost of heating services depends on the total heated area, calculated in cubic meters. Reimbursement of telephone communication costs is made on the basis of data on the status of the personal account provided by the communication organization.

To recognize a fixed part of the rent as an expense, the tenant only needs to have the lease agreement itself, in which it is defined. To recognize the variable part in expenses, a separate primary document is required, which will reflect the cost of utilities consumed by the tenant with a breakdown by type of service and with links to the relevant documents and the amount of the variable part of the rent for the month calculated in accordance with the lease agreement.

What is this primary document? When concluding an agreement, the parties to the lease agreement independently agree on this issue in relation to a specific situation. This can be a bilateral act, or a certificate from the landlord’s accounting department. The main thing is that the document used contains all the mandatory details listed in Art. 9 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (clause 1 of the letter of the Federal Tax Service of Russia dated February 4, 2010 No. ШС-22-3/86@).

If, in accordance with the agreement, the rent (or part of it) is a variable amount, then in order to recognize this amount as an expense, the tenant must receive a primary document from the lessor every month, since the amount of the rent varies from month to month. And when the rent is determined in the contract at a constant (fixed) amount, monthly acts confirming the amount of payment are not needed, since the amount of the rent does not change.

It is worth remembering that difficulties may arise with the preparation of primary documentation, since the landlord is not a supplier of utility services to the tenant, but in fact acts as an “agent” of the tenant in transferring payments for services provided by resource supply organizations. For the landlord, these payments are not income, but serve as compensation for expenses.

In the Civil Code of the Russian Federation, parties to a lease agreement may provide for both a fixed amount of rent and the procedure for its calculation. Consequently, the rent can be set in the form of a main (fixed) part and a variable part, determined by calculation. The permanent part is fixed and includes a fee for using the premises itself. The variable portion of the rent is equivalent to (or calculated from) the cost of utilities consumed by the tenant over a specified period. Thus, the entire amount of rent (both fixed and variable parts) is payment for the lessor’s services in providing the property for rent.

The fixed part of the rent is usually determined by multiplying the rental rate under the contract by the rented area in square meters. Therefore, the rental agreement often indicates the rental rate per 1 square meter per month.

Example

You can specify a formula for calculating the constant part of the rent, for example, like this:

"The fixed part of the rent is determined by the formula:

TV x/y = A * S,

where TV x/y is the fixed part of the rent payable for month x, year y;

A - rental rate under the contract;

S - rentable area, in square meters."

It can also be provided that the constant part of the rent is multiplied by the consumer price index, a coefficient that takes into account the conditions of use of the property by the tenant; for the correction factor, etc.

The lease agreement may indicate that the variable portion of the rent covers the landlord's actual expenses for utility bills, namely:

Electric Energy;

Water supply;

Thermal energy;

Removal of household waste (you can provide the entire list of necessary services), etc.

Example

You can specify a formula for calculating the variable part of the rent, for example, like this:

"The variable part of the rent is determined by the formula:

P x/y = E + Vo + T + M, where

P x/y - variable part of the rent payable for month x, year y;

E - expenses for electrical energy for month x, year y;

Vo - water supply costs for month x, year y;

T - expenses for thermal energy for month x, year y;

M - expenses for removal of household waste for month x, year y."

If payment for utilities is carried out in accordance with meter readings, you can indicate in the agreement that the variable part of the rent is subject to determination in accordance with meter readings. It can be prescribed that readings from utility metering devices are recorded in the presence of authorized representatives of the landlord and tenant.

Attention

In paragraph 12 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 N 66, it is noted that charging the tenant only with the costs of paying for utilities cannot be considered as a form of rent. Since the lessor does not actually receive consideration for the property leased, payment by the tenant only for utilities does not mean consideration of the agreement.

The monthly rent for the use of the Premises and adjacent Areas and Parking Spaces (hereinafter referred to as the “Rent”) consists of:

Constant or fixed part of the rent

  1. Fixed part of the rent sum of money, charged for renting the Premises and including VAT 18%. The Fixed portion of the rent is calculated at the following rates per square meter of rented Premises:
    • ___.00 rubles per month per square meter of rented area of ​​Warehouse Premises, including VAT;___.00 rubles per month per square meter of rented area of ​​Office and Amenity Premises, including VAT;
    • ___.00 rubles per month per square meter of rented area of ​​Office Premises, including VAT. The cost of the Fixed part of the rent includes the Services specified in the List of Services (Appendix No. 5). The cost of the Fixed part of the rent includes the use of the Property by the Tenant.

Variable part of the rent

IN variable part rent includes (limits on consumption are set in Appendix No. 6 - the amount of expenses for consumed electricity, calculated according to tariffs established by the organizations supplying the relevant services in accordance with meter readings (the amount of electricity provided, kW); - the amount of expenses for water consumption and water disposal, the calculation of which is carried out according to tariffs established by the organizations supplying the relevant services in accordance with the readings of metering devices or in accordance with the calculation of consumption rates agreed upon by the parties. - the amount of expenses for telephony and Internet traffic, the calculation of which is made on the basis of the tariffs established in the Appendix No. 6. Fees for the use of Parking Spaces. Payment is calculated at the following rates: 7500.0 rubles per month (not subject to VAT), for one Parking Space for trucks; 1500.0 rubles per month, (not subject to VAT) for one Parking Space for passenger vehicles.

Changing the rent in the lease agreement

The Lessor reserves the right to change the cost per square meter of the rented Premises on its own initiative, but not more than 1 (One) time per year from the Start Date of the lease and no more than 5% of the previous cost per square meter of the rented Premises, with prior notice to the Tenant in less than 1 (one) month. In this case, the parties sign an additional agreement to this agreement. The lessor has the right to unilaterally increase the rate of the variable part of the rent depending on changes in the tariffs of organizations providing the relevant services. In this case, the Lessor shall attach to the written notice of changes in the cost of utilities and operating services sent to the Tenant the relevant documents confirming the fact of changes in tariffs or cost of services.

We accept lease agreements for expert evaluation. We are engaged in drafting complex contracts.

Shortage and high cost of hotels in the capital and others major cities We have made daily rentals one of the most convenient options for temporary accommodation for visitors. It’s a paradox, but renting a separate apartment with a kitchen and everything you need for life costs less than a decent hotel room. Demand, naturally, spurs supply. Therefore, is it any wonder that more and more private investors are engaged in short-term rental of apartments, having in their arsenal a single “one-room apartment”, and there are plenty of specialized companies in the capital that offer clients additional services in addition to a dozen or more apartments. The times when the only realtors renting out an “apartment for the night” were grandmothers at the station are gone.

Renting without a future

“In terms of price, the cost of daily rented apartments is similar or cheaper than a hotel room of the corresponding level. The difference can reach 20–30%, says Dmitry Taganov, head of the analytical center of the Inkom-Real Estate company. - In addition, a tourist or business traveler who comes to the capital for a few days has at his disposal a fully equipped kitchen where he can prepare lunch or dinner on his own. And when staying in a hotel, you will either have to leave a lot of money in the restaurant each time, or look for a decent cafe or restaurant nearby. And it’s not a fact that a decent establishment will be two steps away.” The hotel will have to pay for each additional service- washing and ironing of shirts, shoe care, etc. In an apartment rented by the day, no one will present an additional bill for the fact that the tenant used an iron, washing machine or shoe brush.

As for the landlord, for him the main advantage of a short-term business is the ability to “exit the project” at any time without damage. For example, if the apartment is needed for personal needs - the residence of the owner, his children or parents, the landlord does not need to wait several months before the contract with the tenant ends, as is often the case with long-term rentals. Moreover, the lease agreement for long term often provides for the payment of a penalty to tenants in the event that it is broken due to the fault of the apartment owner. Tenants of daily apartments rarely stay for longer than ten days.

Daily rent makes sense if you are planning to sell your apartment. The time for exhibiting apartments may take several months, especially now, when the demand even for liquid housing is at an extremely low level, but do not miss the opportunity to make money on an apartment that is idle waiting for a buyer. Daily rent will make it possible to organize showings of the property at almost any time; for long-term rentals, you will have to coordinate the time of visits with the residents. Also, “business for a day” is justified as a diversification option. If you own two or more apartments, then it is advisable to rent out one of them for a long term, and the other for daily rent. Moreover, in Moscow the seasonality of tourism is less pronounced, and the flow of visitors is stable all year round.

At first glance, daily rentals look even more profitable than long-term rentals. “The cost of a small two-room economy class apartment with good cosmetic repairs, necessary household appliances and furniture will be about 3-4 thousand rubles. per day. It turns out that if you rent out such an apartment for 20 days a month, you can count on an income of 60–80 thousand rubles. While for a long-term lease its cost will be around 35–45 thousand rubles. per month,” Dmitry Taganov gives an example. At the same time, recently rates on the long-term rental market have been steadily declining, and the yield today does not exceed 4–5%.

No guarantees, no insurance

But to say that the business from rental housing is short term simple, you can't. There are much more difficulties associated with it than it seems at first glance. The main problem of a daily renter is the lack of guaranteed income. With a long-term lease, it is enough to find a client once, sign a contract - and you can live in peace for a year, receiving a stable monthly income. And in the case of short-term accommodation, the search for new guests is ongoing.

In the fall, Dmitry K. decided to rent out his apartment in the center of St. Petersburg for daily rent. And from my own experience I was convinced that this business in practice is not as profitable as it seems in theory. “When I rented it out under a long-term contract, I always had a guaranteed 30 thousand rubles. per month. Now there’s more hassle and less payoff,” he says. There is no month to month. Once Dmitry was very lucky: the apartment was rented for 20 days by a family who were doing renovations in their own home, and since it took so long, they had to extend the lease for another period. But this was the only case. The rest of the time the apartment is occupied on average ten days a month. “However, there is quite objective reasons. First of all, it's not winter tourist season for St. Petersburg. Secondly, the crisis. The main contingent of clients are tourists and business travelers, and the number of both in recent months has decreased significantly,” says Dmitry.

Svetlana Aleksashina, housing rental manager for the St. Petersburg Real Estate company, notes that the demand for daily housing is uneven and indeed largely depends on the season: “Before the New Year, there were a sufficient number of people wanting to rent an apartment for a few days: many out-of-towners came to visit their friends, relatives to spend the holidays here. Now on the market daily rental It's quiet, but it's traditional for this time of year. Revival, as always, will come in May-June: the season of white nights annually attracts tourists to the city on the Neva.” True, recently competition in the daily rental market has become even tougher: numerous mini-hotels have appeared, and many visitors prefer this segment to apartments.

There are, of course, alternative ways to ensure a more stable flow of residents. But these are already options for everyone. You can, for example, rent out an apartment for holding holidays and parties - for such a purpose, real estate in convenient areas is always in demand. But here you need to be aware of what the consequences may be for the condition of the apartment. No one, having paid money, will treat the property of the owners with care. Another option is to rent out apartments for employees in the leisure sector. This also guarantees stable profits. “But such apartments quickly fall into disrepair,” notes one of the landlords. “Besides, when the apartment is located in a decent building, you don’t want to spoil relations with your neighbors.”

The constant search for clients is by no means the only problem that awaits the landlord. An apartment rented daily requires much more attention. After each client, the owners need to put the home in complete order, clean it, provide fresh bed linen, etc. At the same time, such objects lose their appearance much faster. “The guests are constantly changing, and it is not at all a fact that all of them will be extremely sensitive to new furniture and household appliances. Therefore the owner daily apartment you will have to do cosmetic repairs much more often than in an apartment rented for a long time. And also pay for insurance against the risk of damage,” says Dmitry Taganov. True, as St. Petersburg landlord Dmitry K. notes, buying insurance is too much of a luxury: insurance companies either refuse to insure such apartments at all, or charge too high rates.

With short-term rentals, there is a much higher risk of encountering fraud or crime. Dmitry K. Pod already had such an experience New Year he came to check out the apartment, which was empty at that time, but found that he could not get inside: for some unknown reason, the key did not fit the lock. Taking a closer look at the door, Dmitry discovered that the lock had simply been replaced. I had to call an employee of the Ministry of Emergency Situations, who opened the door and let in the rightful owner. Once in the apartment, Dmitry discovered a lot of other people's things, a decorated Christmas tree, bottles of alcohol - in a word, clear signs that the apartment was inhabited. After some time, a new “tenant” appeared, who greeted the real owner of the apartment with indignant questions about the reasons for the latter’s stay on the territory of someone else’s apartment. It turned out that he rented an apartment through a real estate agency and paid three months in advance. Gradually, the details of the fraud became clear: shortly before the New Year, the apartment was rented for a couple of days by a woman who, according to her, arrived from Sochi. In such a short period of time, she managed to make duplicate keys, and after her official “departure” she returned, changed the lock and under the guise of a realtor, she agreed to rent out the apartment to another person. She took an advance payment from him and disappeared in an unknown direction.

Dmitry was lucky: the illegal tenant vacated the apartment without any complaints, and, apart from time and nerves, the owner did not suffer any losses. But in a different scenario, the fraudster might not have bothered with the retake, but simply take all valuable property and equipment out of the house. To minimize risks, you should at least make a copy of the client’s passport, but this will not insure you 100% from fraudsters.

Trust or independence?

If you want to rent out your apartment on a daily basis, you have two options: transfer the apartment into trust management to a real estate agency or rent it out yourself.

At trust management, on the one hand, the owner is spared all the hassle. On the other hand, there remains the risk of fraud on the part of realtors. Agents can simply deceive by underestimating the number of days during which the apartment was rented out, and keep part of the income for themselves. You won’t go to the apartment every day and check.

If you take matters into your own hands, you will have to use as many channels of information as possible to find clients. However, it's not too difficult. Just type the words “daily rental” in Yandex or another search engine - and immediately dozens of agency sites offering apartments for daily rent will open in front of you to choose from. Almost all of them cooperate with apartment owners. You will be required to make a standard description of the proposed housing, indicate all its main parameters and take several photographs (kitchen, bathroom and bedroom). Photos and descriptions are posted on the agency's website. The owner of the apartment indicates how much he would like to receive per day, and realtors add their markup on top of this figure. For example, if an apartment “from the owner” costs 2 thousand rubles, then the agency will list it for 2.5–3 thousand. In this case, deception on the part of intermediaries is hardly possible, since the agency plays exclusively the role of a connecting link. It directs the client, and the owner of the property contacts him directly: it includes showing the apartment, changing linen, cleaning, and the most pleasant thing - receiving payment. Then he gives commissions to the agency.

If you have several apartments, daily rent turns into a full-fledged business, which requires not only initial investments, but also regular expenses. It will be necessary to either outsource cleaning services or create your own maintenance department, which will take care of cleaning apartments, washing and changing bed linen, minor repairs, etc. In addition to service personnel, an accountant is also required. It will be necessary to establish relationships with people who can resolve any conflict situation with residents. An important element of this business is the creation and promotion of an effective website on the Internet. “It looks very difficult, but in practice it can be the opposite. In the process of activity, business relationships are established with certain organizations, for example, with representative offices of Western companies, as a result of which the business becomes more stable and secure. Moreover, you can receive additional income through the provision of related services: transport, tourism, etc.,” says Evgeniy Skomorovsky, managing director of Century 21 West.

Recipe for success

Not every apartment will be rented equally successfully. There are a number of parameters on which its demand among potential tenants will depend. Firstly, the location of such housing is important. “Small apartments in the Central District of Moscow, for example in Stalinist buildings, are especially in demand for short-term rentals. Areas where large exhibition centers are located are also popular,” says Vadim Lamin, head of the exclusive department of the luxury apartment rental department at Penny Lane Realty. At the same time, the “walking distance to the metro” parameter remains important - just like when buying or long-term renting.

If an apartment rented for a long term can be minimally furnished, then in the case of a short-term rental such a number will not work. Everything should be here to provide residents with a comfortable alternative hotel room. When a person arrives at a hotel, he does not care about taking soap, a towel, toothpaste, or linen with him. He receives all this on the spot. For daily rentals, the same must be ensured.

The room should have a comfortable wardrobe and sleeping area. The kitchen must be equipped with a refrigerator, kettle and microwave. The latter is a more mandatory element than the stove. “Few of those who come do serious cooking. They either eat in a cafe, or prefer to buy ready-made food and heat it up,” says realtor Sergei. The room must have a TV; a DVD player has also recently become in demand. Such little things often play an important role, especially since competition in the daily rental market is great, and there is practically no difference in prices.

Short term rental: PRO & CONTRA

1. Potentially higher income than with long-term rent.

2. Possibility to leave the business at any time.

3. Free disposal of the apartment (you can sell it at any time, move in relatives, etc.).

1. Lack of guaranteed income.

2. The need to constantly search for new clients.

3. The apartment requires repairs more often and quickly loses its presentation.

4. A more labor-intensive business: the apartment must be put in order after each client, it is necessary to provide residents with a complete “hotel” set - linen, dishes, furniture and household appliances.

Rent from the lessor, including variable

Lease relationships are very popular among business entities. By providing “vacant” property for rent, landlords use it to generate additional income, and tenants, in turn, a certain fee gain the opportunity to use other people's movable or immovable property.

In this article we will consider the issues of accounting for rent received by the landlord from the tenant.

In accordance with Article 614 of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation), the main responsibility of the tenant is the timely payment of rent for the use of the property in the amounts and terms stipulated by the lease agreement.

The rent is set as follows:

– payments determined in a fixed amount, made periodically or at a time;

– the established share of products, fruits or income received as a result of the use of leased property;

– provision by the tenant of certain services;

– transfer by the lessee to the lessor of the thing stipulated by the contract for ownership or lease;

– imposition on the lessee of the costs stipulated by the contract for improving the leased property.

The parties may provide in the lease agreement for a combination of these forms of rent or other forms of payment for rent.

The most common type is to set the rent in the form of fixed payments made periodically or in one lump sum.

Several objects can be transferred under a lease agreement at once. In this case, the rent can be set both as a whole for all leased property, and for each object separately. In order to avoid further disagreements between the parties to the agreement, it is better to set the rent separately for each leased object.

Variable rent, established monthly, by agreement of the parties, in order to compensate for utility bills, in the author’s opinion, does not fully comply with the law. At the same time, from the point of view of the tax authorities, with such a rent, the lessor will be able to recognize only expenses for the purchase of fuel, water and energy of all types, spent on technological purposes, generation of all types of energy, heating of buildings, as well as expenses on transformation and transmission of energy consumed to them directly, without taking into account those consumed by tenants (Letter of the Federal Tax Service of the Russian Federation for the Moscow Region dated November 13, 2006 No. 21-25-I/1372). In contrast to the tenant, who has the right to include in the expenses accepted for taxation of profits both the constant and variable components of the rent (Letter of the Federal Tax Service of the Russian Federation for the Moscow Region dated November 13, 2006 No. 21-25-I/1372).

According to the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 “Review of the practice of resolving disputes related to rent”, paragraph 11 of which explains that when applying paragraph 3 of Article 614 of the Civil Code of the Russian Federation, courts must proceed from the fact that within a year The terms of the contract providing for a fixed amount of rent or the procedure (mechanism) for calculating it must remain unchanged. The tenant filed a claim with the landlord in the arbitration court to invalidate the terms of the lease agreement providing for the landlord's quarterly increase in the amount of rent by indexing it to take into account inflation, since this condition contradicts the imperative norm of paragraph 3 of Article 614 of the Civil Code of the Russian Federation, which establishes the possibility of changing the amount of rent no more than once a year. But the court, albeit only in the case under consideration, found that determining the rental rate in an amount equivalent to a certain amount in foreign currency means establishing a mechanism for calculating it. This determination of the rent is intended to eliminate the adverse effects of inflation. A change in the foreign currency exchange rate does not mean a change in the amount of rent in accordance with paragraph 3 of Article 614 of the Civil Code of the Russian Federation. As a result, it turns out that in order to introduce a variable rent it is necessary to have a clear algorithm for calculating it, specified in the contract, otherwise it is easy to lose a court case.

The terms for payment of rent are determined by the contract. In this case, the parties can provide for any procedure for its payment: monthly, quarterly, once a year, by depositing prepayment or with deferred payment.

Paragraph 3 of Article 614 of the Civil Code of the Russian Federation stipulates that the rent may be changed by agreement of the parties within the time limits specified in the contract, but not more than once a year. At the same time, the amount of rent can either increase or decrease.

The tenant has the right to demand a reduction in rent in the event of:

– if, due to circumstances for which he is not responsible, the conditions of use provided for in the lease agreement or the condition of the property have significantly deteriorated;

– if the lessor violates the conditions for major repairs of the leased property;

– if the lessor did not warn the tenant about the rights of third parties to the property when concluding the lease agreement.

In the event of a significant violation by the tenant of the terms for payment of rent, the lessor has the right to demand from him early payment of rent within the period established by the lessor. In this case, the lessor has no right to demand early payment of rent for more than two consecutive terms (clause 5 of Article 614 of the Civil Code of the Russian Federation).

Rent in accounting.

The procedure for recording lease payments in the lessor's accounting depends on whether this activity is the main one or not.

In accordance with paragraph 5 of PBU 9/99 “Income of the Organization” (Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 32n “On approval of the Accounting Regulations “Income of the Organization” PBU 9/99” (hereinafter referred to as PBU 9/99)) in organizations whose subject of activity is the provision for a fee for temporary use (temporary possession and use) of their assets under a lease agreement, revenue is considered to be receipts the receipt of which is associated with this activity (rent).

Chart of Accounts for Accounting and Instructions for its Application (Order of the Ministry of Finance of the Russian Federation dated October 31, 2000 No. 94n “On approval of the Chart of Accounts for Financial Accounting economic activity organizations and instructions for its use"), account 90 “Sales” is intended to summarize information on income and expenses associated with the ordinary activities of the organization, as well as to determine the financial result for them.

Revenue from the provision for a fee for temporary use (temporary possession and use) of its assets under a lease agreement (when this is the subject of the organization’s activities) is reflected in account 90 “Sales” subaccount 90-1 “Revenue”.

If the provision of assets for rent is not the main activity of the organization, then, according to paragraph 7 of PBU 9/99, receipts associated with the provision for a fee for temporary use (temporary possession and use) of the organization’s assets are recognized as other income and are reflected in the credit of account 91- 1 “Other income”.

In this case, expenses associated with the provision for a fee for temporary use (temporary possession and use) of the organization’s assets are recognized as other (clause 11 PBU 10/99 “Organization expenses” (Order of the Ministry of Finance of the Russian Federation dated May 6, 1999 No. 33n “On approval Accounting provisions “Expenses of the organization” PBU 10/99)).

In order to determine what type of activity to include operations for the transfer of property for rent, you must refer to paragraph 4 of PBU 9/99.

In accordance with this paragraph in accounting, the organization independently recognizes receipts as income from ordinary activities or other income, based on the requirements of PBU 9/99, the nature of its activities, the type of income and the conditions for their receipt.

In other words, the organization must independently decide what type of activity the operations of transferring property for rent belong to, and consolidate this in the accounting policies of the organization. This condition is determined by the Charter of the organization, where most often the leasing of property is provided as a type of activity; accordingly, the lessor recognizes the receipts as income from ordinary activities.

If the rent payment is reflected by the organization in accounting as income from ordinary activities, then the following entries are made in the accounting:

Debit of account 62 “Settlements with buyers and customers” Credit of account 90-1 “Revenue” - reflects the amount of rental payments to be received;

Debit of account 90-3 “Value added tax” Credit of account 68-2 “Calculations for value added tax” - reflects the amount of VAT payable to the budget;

Debit of account 51 “Settlement accounts” Credit of account 62 “Settlements with buyers and customers” – reflected cash received from the tenant.

Transferred in a single payment for the entire period of validity of the lease agreement, the rent is considered as an advance payment and is accounted for in account 62 “Settlements with buyers and customers” subaccount “Settlements for advance payment”.

If the rent is reflected in the lessor's accounting as part of other income, then the following entries are made in the accounting:

Debit of account 76 “Settlements with various debtors and creditors” subaccount “Settlements for rent” Credit of account 91-1 “Other income” - reflects the accrual of rent receivable;

Debit account 91-2 “Other expenses” Credit account 68-2 “Calculations for value added tax” – VAT is charged;

Debit of account 51 “Settlement accounts” Credit of account 76 “Settlements with various debtors and creditors” sub-account “Settlements for rent” – funds received from the tenant are reflected.

The one-time transferred amount of rent for an organization in which the transfer of assets for rent is not the main activity is taken into account in account 98 “Deferred income” subaccount 98-1 “Income received for deferred periods”.

Subaccount 98-1 “Income received for future periods” takes into account the movement of income received in the reporting period, but relating to future reporting periods.

The amount of income relating to future reporting periods is reflected in the credit of account 98 “Deferred income” in correspondence with the accounts for cash or settlements with debtors and creditors, and in the debit - the amount of income transferred to the corresponding accounts at the beginning of the reporting period, to to whom these incomes belong.

Analytical accounting in account 98-1 “Income received for future periods” is carried out for each type of income.

Rent is recognized in accounting based on the assumption of temporary certainty of the facts of economic activity and in the presence of the conditions listed in paragraph 12 of PBU 9/99:

– the organization has the right to receive this revenue arising from a specific agreement or confirmed in another appropriate manner;

– the amount of revenue can be determined;

– there is confidence that as a result of a particular transaction there will be an increase in the economic benefits of the organization.

If at least one of the listed conditions is not met in relation to cash and other assets received by the organization in payment, then accounts payable, and not revenue, are recognized in the organization’s accounting.

Example.

The organization entered into an equipment rental agreement for a period of three months. The monthly rent amount is 17,700 rubles (including VAT - 2,700 rubles).

Rent in the amount of 53,100 rubles (including VAT - 8,100 rubles) was paid by the tenant immediately for the entire period of validity of the lease agreement.

The lessor organization uses the following subaccounts of the working chart of accounts:

62-1 “Calculations for rent”;

62-2 “Calculations for advance payment.”

The following entries were made in the accounting records of the lessor organization:

Debit 51 Credit 62-2 – 53,100 rubles – reflects the amount of advance payment for leased equipment;

Debit 62-2 Credit 68-2 – 8,100 rubles – VAT is charged on the amount of the advance payment (clause 1 of Article 167 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation));

Debit 62-2 Credit 98–45,000 rubles - the amount of prepayment is reflected in deferred income;

Debit 62-1 Credit 91-1 – 17,700 rubles – rent accrued for the reporting period;

Debit 91-2 Credit 68-2 – 2,700 rubles – VAT accrued on the rent of the reporting period;

Debit 68-2 Credit 62-2 – 2,700 rubles – accepted for VAT deduction on the prepayment amount;

Debit 98 Credit 62-1 – 15,000 rubles – reflects the amount of rent previously included in deferred income.

The landlord must issue an invoice to the tenant for the amount of rent.

According to paragraph 3 of Article 168 of the Tax Code of the Russian Federation, an invoice is issued no later than five calendar days, counting from the date of provision of services.

Issuance of invoices for the sale of services for the provision of property for rent is possible no earlier than the end of the tax period, at least the month in which the services were actually provided.

Rent in tax accounting.

Providing property for rent is the main activity of the organization.

According to Article 249 of the Tax Code of the Russian Federation, rent received from the tenant is classified as income from sales. The main types of activities are determined by the organization's Charter, where most often the rental of property is provided as a type of activity.

If an organization, for profit tax purposes, recognizes income and expenses using the accrual method, then income is recognized in the reporting (tax) period in which they occurred, regardless of the actual receipt of funds, other property (work, services) (clause 1 of Article 271 of the Tax Code RF).

For organizations that provide their property on a systematic basis for a fee for temporary use and (or) temporary possession and use of their property, the costs of such activities are associated with sales (subclause 1 of clause 1 of Article 265 of the Tax Code of the Russian Federation).

If the lease agreement provides for an uneven schedule of rental payments, then, according to the latest clarifications of the Ministry of Finance of the Russian Federation, given in Letters dated April 17, 2009 No. 03-03-06/1/258, dated April 2, 2009 No. 03-03-06/1 /212, the taxpayer, on the basis of subparagraph 3 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation, must in such cases take into account rental payments in income, based on the amounts provided for in the payment schedule. A similar position is contained in the Resolution of the Federal Antimonopoly Service of the Ural District dated December 16, 2008 in case No. Ф09-9466/08-С3.

According to the author, an uneven payment schedule also occurs when rent is paid once over a long period of time, for example, once a year or every six months. At the same time, a one-time inclusion of such a fee in income is not entirely beneficial to the organization, since it will lead to a one-time payment of income tax or a larger advance payment. Therefore, it is more expedient to distribute such income across reporting periods. However, taking into account the position of the Ministry of Finance of the Russian Federation, such an approach may cause complaints from the tax authorities.

Let us note that earlier officials indicated that income in the form of rental payments is recognized in tax accounting taking into account the principle of uniform recognition of income and expenses, regardless of their actual payment. At the same time, monthly conclusion of acts of services rendered under a lease agreement is not required for the purposes of maintaining tax accounting of income in the form of lease payments. This position was set out in Letters of the Ministry of Finance of the Russian Federation dated April 17, 2007 No. 03-03-06/1/248, dated February 6, 2007 No. 03-03-06/1/59, dated November 10, 2006 No. 03-03 -04/1/752, Federal Tax Service of the Russian Federation for the city of Moscow dated September 22, 2008 No. 20–12/089128.

Providing property for rent is not the main activity of the organization.

In this case, income from the rental of property is recognized as non-operating income (clause 4 of Article 250 of the Tax Code of the Russian Federation).

Subparagraph 3 of paragraph 4 of Article 271 of the Tax Code of the Russian Federation establishes that for non-operating income from leasing property, the date of receipt of income is the date of settlements in accordance with the terms of concluded agreements or presentation to the taxpayer of documents serving as the basis for making calculations, or the last day of the reporting (tax) ) period.

Expenses for the maintenance of property transferred under a lease agreement (including depreciation on this property) are included in non-operating expenses (subclause 1 of clause 1 of Article 265 of the Tax Code of the Russian Federation).

Communal payments.

As noted above, in accordance with Article 614 of the Civil Code of the Russian Federation, rent can be set either in a fixed amount or in a “floating” amount, consisting of two parts - a fixed amount of rent and a variable component consisting of utility bills.

As a rule, all lease agreements, in one form or another, contain a condition that it is the tenant who bears the costs of paying utility bills. This raises the question: how is it most beneficial from a tax point of view for the parties to the agreement to document such a condition. And first of all, in this case we are talking about such a controversial tax as VAT.

In practice, there are different payment options for paying for electricity, gas, water supply, telephone communications and other utilities. Let's take a closer look at them.

1. Utilities are included in the rent.

The first method is used quite rarely. After all, tariffs for utility services are constantly growing, in addition, when concluding an agreement, the parties do not yet know to what extent utility services will actually be consumed by the tenant. Consequently, it is hardly possible to calculate in advance the amount of a fixed rental payment that covers all the lessor’s expenses for utilities during the execution of the contract. The parties do not have the right to change the amount of rent during the year; the prohibition on this is established by paragraph 3 of Article 614 of the Civil Code of the Russian Federation.

Therefore, usually in a lease agreement, the parties do not stipulate the amount of rent itself, but the methodology for calculating it, as a result of which a change during the year in the variable component of the rent does not mean a revision of the price of the lease agreement, because the mechanism for determining the amount of rent remains the same.

With a “floating” rent, all amounts received by the lessor from the tenant, including utility bills, are recognized as his income from leasing the property.

By virtue of Article 146 of the Tax Code of the Russian Federation, the lessor charges VAT on the entire amount of rent and pays it to the budget. An invoice is issued by the landlord to the tenant for the entire amount of the rent (including the amount of utility bills), and on a separate line“communal apartment” does not stand out.

The landlord, who has received invoices from utility companies in his name, has the right to deduct the VAT indicated in their invoices in full. After all, if utility payments received from the tenant are included in his income, then he has the right to recognize the utilities consumed by the tenant as his expenses. The same procedure for assessing VAT was explained by officials in Letter of the Federal Tax Service of the Russian Federation dated February 4, 2010 No. ШС-22-3/86@. A similar opinion is shared by the arbitrators in the Resolution of the FAS North Caucasus District dated December 21, 2009 in case No. A63-8994/2004-C4-9, dated June 11, 2009 in case No. A53-18515/2008-C5-27, FAS Central district dated May 29, 2009 in case No. A23-3029/2008A-14-202, FAS North-Western District dated January 10, 2007 in case No. A05-7971/2006-13, dated July 4, 2007 in case No. A56- 38904/2006.

A tenant who has received from the lessor an invoice for rental services (for the entire amount, including utility bills) in the general manner, on the basis of Articles 171 and 172 of the Tax Code of the Russian Federation, has the right to deduct the amount of VAT indicated in the lessor's invoice. Judges share a similar opinion; as an example, we can cite the Resolution of the Federal Antimonopoly Service of the North-Western District dated December 27, 2010 in case No. A56-7049/2010, the Resolution of the FAS Moscow District dated August 26, 2008 in case No. KA-A40/7882-08 , Resolution of the Federal Antimonopoly Service of the North Caucasus District dated June 26, 2008 in case No. F08-3507/2008 and others.

2. Utilities are paid separately from the rent.

If utility bills are not included in the rent, then the most safe option reimbursement of the landlord's utility expenses is the conclusion of a lease agreement with elements of a mediation agreement. That is, the lease agreement stipulates in advance that the lessor, as an intermediary, acting on his own behalf, but in the interests of the tenant, purchases utilities for him.

In addition, as an option, a separate mediation agreement may be concluded. Do not forget that the services of an intermediary are paid, therefore, the mixed lease agreement must provide for the intermediary’s remuneration, or a separate intermediary agreement must provide for payment for the services of the landlord providing intermediary services for the tenant.

Moreover, since utility companies expose their documents in the name of the property owner, the options for an intermediary agreement concluded between the landlord and the tenant can be either a commission agreement or an agency agreement, in which the agent acts on his own behalf, but in the interests of the principal.

In this case, the landlord will issue two invoices in the name of the tenant: one in his own name for rental services, the second in his own name for utilities. Moreover, the invoice issued to the tenant for utility services is issued by the lessor on the basis of the data of the invoice issued by the utility service provider in the name of the lessor himself. This invoice is not entered into the lessor's purchase book, but is filed in the journal of received invoices. It is precisely this procedure for issuing invoices by VAT taxpayers and participants in intermediary agreements that is provided for by the Rules for maintaining logs of received and issued invoices, purchase books and sales books for value added tax calculations, approved by Decree of the Government of the Russian Federation of December 2, 2000 No. 914 .

With such a scheme for reimbursement of utility costs, the amount received from the tenant in reimbursement of utility services is not the income of the landlord. The received amounts are taken into account in the lessor's accounting as separate business transactions.

In accordance with subparagraph 9 of paragraph 1 of Article 251 of the Tax Code of the Russian Federation, when determining the tax base for income tax, income in the form of property (including funds) received by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement is not taken into account. agency agreement or other similar agreement, as well as for reimbursement of costs incurred by the commission agent, agent and (or) other attorney for the principal, principal and (or) other principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) ) another attorney in accordance with the terms of the concluded agreements. This income does not include commission, agency or other similar remuneration, which becomes income from ordinary activities.

When re-presenting utilities, the lessor is relieved of the risks associated with income tax and VAT, as well as those associated with the possible recognition of the transaction as void in accordance with Articles 166–181 of the Civil Code of the Russian Federation, as well as the risks of criminal liability arising under Article 171 of the Criminal Code Russian Federation “Illegal entrepreneurship” (in terms of over-provision of communication services).

However, with this scheme, the lessor, in addition to the obligation to charge VAT on the amount of rent, has the obligation to charge tax on the amount of his intermediary remuneration.

This text is an introductory fragment. From the book All about the simplified taxation system (simplified taxation system) author Terekhin R.S.

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