Daily business. Encyclopedia of solutions. Fixed and variable parts of rent Housing rental for employees - foreign citizens

A room that you can rent for 500 rubles per hour costs 100,000 rubles per month. To justify permanent lease, you are required to work 200 hours per month at your premises. This is 7 hours every day without a single day off. It doesn't happen that way.

You need freedom of choice

Your course/seminar/training/presentation may have a lot of people - and then you will need a larger than average room. There may not be enough people - and then there is no need to overpay. The group may not be able to gather at all, then you need to refuse the rental. All this can be done using the SpeedRent rental service.

Your clients don't care under what roof you work today.

Customers have long been no longer loyal to locations. The area of the city is important for them - yes, the distance from the metro station is important. But for them it doesn’t matter at all where you meet them today - in business center X or in business center Y across the street. A permanent reception place has ceased to be part of the reputation. The website and telephone number must be permanent. The quality of service should be constant - but not the address of the hall!

Being tied to “your” real estate, you cannot concentrate on your clients

Bills for maintenance, electricity and water, thoughts about the next crazy payment to the landlord - all this drains your vital energy. Enough tolerating this! Exchange hourly rental premises frees your hands.

Searching for space on a website is free

We do not charge money for processing applications from event organizers. We do not sell information. SpeedRent receives its remuneration as a percentage of the rental price only from completed transactions, upon the fact of the event and provided that there are no claims from the tenant and the landlord.

Find a suitable hall

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

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

The variable part of the rent includes (consumption limits are set in Appendix No. 6 - the amount of expenses for consumed electricity, calculated at the tariffs established by the organizations providing the relevant services in accordance with meter readings (the amount of electricity provided, kW); - the amount of expenses for water consumption and sewerage, 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 the consumption rate agreed upon by the parties. - the amount of expenses for telephony and Internet traffic, the calculation of which is made on the basis of tariffs, established in Appendix No. 6. Fees for the use of Parking Spaces. Payments are 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). 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.

Low and constant rental rates, the possibility of purchasing real estate, preferential programs - these are just the key advantages of Moscow. The number of tenants in the city is growing every year: for example, compared to 2016, in 2017 they were able to obtain real estate for favorable conditions 10% more entrepreneurs. In total, almost 6,000 property and land auctions were held last year. In 2018, all programs will continue to operate for tenants that allow them to significantly save on rent and achieve the purchase of city real estate. Don't miss the chance to get a room with a rental rate significantly lower than the market rate! Our article with a step-by-step analysis of the rental process and expert comments will help you understand the peculiarities of bidding.

Step one: choosing a property

Objects that are available for rent from DGI can be viewed on the website: https://investmoscow.ru/tenders or https://www.mos.ru/tender/function/zem-imush-torg/edinyy_spisok_torgov/. There are convenient filters to find non-residential premises in the desired area, the required area, with a specific purpose.

Important: Evaluate not only the premises, but also the conditions of the auction: what are the deadlines for accepting applications for participation, what is the size of the deposit. Download the lot documentation and read the lease agreement. Note such important factors as the possibility of subletting real estate, assigning claims, early termination of the contract, etc.

Some entrepreneurs think that they are buying a “pig in a poke” by signing an agreement with DGI. As a lawyer who has worked in the real estate market for many years, I hasten to destroy this stereotype. On the contrary, all documentation on the object is presented in the public domain, starting from an extract from the Unified State Register of Real Estate and ending with a technical passport from the BTI. Objects are exhibited with big amount photographs. Moreover: auction participants can agree on a personal inspection of the premises: for this you need to submit an application on the website no less than two days before the start of the auction https://investmoscow.ru/tenders.

Step two: register on the bidding site and submit an application

Entrepreneurs who participate in bidding for the first time must go through the registration procedure on the site. To do this, you will need to undergo accreditation, install certificates and a cryptographic information protection system on your PC. Entrepreneurs will need an electronic signature. We recommend starting the registration procedure at least a week before the deadline for accepting applications for the auction you are interested in.

If the legal entity is already registered, then you only need to submit an application to participate in the auction. Moreover, you will additionally need:

Provide documents - an extract from the Unified State Register of Legal Entities or Unified State Register of Individual Entrepreneurs, copies of constituent documents and an extract from the authorized body that it approves the transaction. Documents confirming the authority of the person taking part in the auction are also required.
Make a deposit - its amount is indicated in the bidding documentation. A payment document with a note from the bank regarding the payment is attached to the application. The receipt must include the lot number, auction date, address and total area premises, deposit size.

Important: why can an application to participate in a tender be rejected?

There are very few reasons why entrepreneurs are not allowed to auction: failure to pay a deposit, an incomplete set of documents, or violation of the requirements for drawing up auction documentation. Companies that are at the stage of bankruptcy or liquidation will also be excluded from participating in the auction.

Step three: participation in the auction

At the appointed time, you must take part in the auction on the site’s website. The minimum price is the one indicated in the documentation for the lot. The auction step is also specified in the documents - as a rule, it is 0.2% of the lot amount. If there is no bid within an hour, then the winner of the auction is the participant who offered the last amount. Once the tender protocols are posted on the website, they are recognized as valid.

Important: What if you are the only bidder in the auction?

In this case, bidding simply does not take place: the city will offer to conclude a direct lease agreement on the terms published in the lot documentation.

Yakushev Anton, lawyer at RFI consult

Before participating in an auction, it is necessary to assess the risks. Thus, the deposit amount is not returned to the entrepreneur if he was the only participant admitted to the auction or made the maximum bid, but refused to sign the protocol or lease agreement.

Step four: conclusion of the contract

Between 10 and 20 days after the end of the auction, the entrepreneur must arrive at the Moscow City Property Department to sign a lease agreement for non-residential premises. At the same time, he must comply with all documentation and deposit requirements. The agreement cannot be changed unilaterally by either party. If the participant who takes first place avoids signing the contract, then instead of him DGI can offer rent to entrepreneurs who offered the second and third from the end amount.

Yakushev Anton, lawyer at RFI consult

Despite the simplicity of the rental procedure non-residential premises The Moscow Property Department has quite a lot of pitfalls that entrepreneurs are not aware of. For example, it is difficult to objectively assess the value of premises for a business and understand to what extent it makes sense to raise rates. Problems may arise when collecting documents, registering on the auction site, or participating in auctions. Finally, it is very important to have an attorney review the lease agreement and highlight all the pros and cons of the proposal.

Our clients are always satisfied with cooperation with RFI consult, since we provide turnkey services - from selecting premises according to the customer’s parameters and collecting documents for participation in preferential programs of the State Property Inspectorate, to signing an agreement with the Moscow Property Department. Customers receive real estate on terms long term rental with the best rate.

Publication

Property can be leased if it does not lose or change its natural properties during use. The lease agreement must contain data that makes it possible to definitely establish which property is to be transferred as the leased object. If under a lease agreement it is impossible to determine which property is being leased, then such an agreement is considered not concluded and the parties to such an agreement do not have any rights or obligations.

Only its owner has the right to rent out property. However, a person who is not the owner, but authorized by the owner to rent out property, can also act as a lessor.

The rental period of the property is determined by the contract. If the contract does not specify a period, then the contract is considered to be concluded for an indefinite period. In this case, each of the parties has the right to cancel the agreement at any time by warning the other party one month in advance, and when renting real estate - three months in advance. In this case, the agreement may establish a different period for warning of termination of the lease agreement for an indefinite period.

The lessor is responsible for all shortcomings of the leased property, even if he was not aware of them at the time of concluding the contract. If the tenant, after accepting the property, discovers certain shortcomings, then he has the right:

demand that the landlord eliminate them free of charge;

independently correct these shortcomings and demand reimbursement of your expenses for their elimination in a simultaneous payment;

eliminate the deficiencies on your own and deduct the amount of expenses incurred from the rent, notifying the lessor. The tenant also has the right to demand a proportionate reduction in the rent, and he can either eliminate or not eliminate the identified deficiencies;

not to eliminate the shortcomings, but to terminate the contract.

The lessor is not responsible for the defects of the leased property in the case where these defects were agreed upon when concluding the lease agreement or were known to the tenant in advance or should have been discovered by the tenant during an inspection of the property or checking its serviceability when concluding the agreement or transferring the property for rent .

Payment of utilities by the tenant

The lease agreement is a compensation agreement. The amount of rent and payment terms are determined by the contract. In addition, the tenant is required to pay public utilities for leased property. There are several possible ways for the tenant to reimburse utility costs:

fixed rent, which includes the cost of utilities. The tenant pays the landlord rent every month in the amount specified in the contract;

rent, consisting of a fixed and variable part, in particular, a constant rent is a payment for the area of the rented premises, a variable rent is a payment for utilities;

rent excluding the cost of utilities. The tenant independently enters into agreements with utility services, or an agency agreement can be used to reimburse utility costs.

Rent taking into account the cost of utilities

Rent including utility payments causes the least amount of controversy with the tax authorities, but is a less profitable option. The cost of some services directly depends on the size of their consumption, and it is not always possible to determine in advance how much, for example, electricity a tenant will consume. Therefore, a situation may arise when the utilities actually consumed by the tenant are not covered by the amount of utility payments included in the rent.

Lessor's account. Rent, including utility bills, is income from the sale of services for leasing premises. The object of taxation is the sale of services for the provision of property for rent.

In this case, the entire amount of the rent is payment for the services of the lessor in providing the property for rent. Therefore, the landlord must calculate VAT on the full amount of the rent and issue an invoice to the tenant for the full amount of the rent. At the same time, highlight on a separate line The amount of utility payments in the invoice and invoice for payment to the landlord is not necessary (letter of the Ministry of Finance of Russia dated September 19, 2006 No. 03-06-01-04/175).

As for the VAT amounts presented by utility service providers, the lessor can deduct them in full size in the generally established manner, since services are purchased for transactions subject to VAT (provision of property for rent) (resolutions of the Federal Antimonopoly Service of the North-Western District dated January 10, 2007 No. A05-7971/2006-13, Federal Antimonopoly Service of the North Caucasus District dated November 7, 2007 No. F08- 6607/07-2723A - left in force by the Determination of the Supreme Arbitration Court of the Russian Federation dated February 29, 2008 No. 2615/08).

Tenant's account. The tenant, by paying the rent, which includes utility bills, reimburses the landlord for the cost of utility expenses. Since the lessor has issued an invoice for the entire amount of the rent, the tenant has the right to deduct the entire amount of VAT related to the rent, including utilities (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 10, 2009 No. 6219/08, FAS Moscow District dated April 24, 2009 No. KA-A40/3091-09).

Thus, the tenant has the right to deduct VAT if the rent includes a fixed part and a variable part equivalent to the amount of utility bills.

Rent consisting of fixed and variable parts

This method of reimbursing the landlord’s utility expenses causes the most controversy regarding the issues of accepting VAT amounts for deduction by both the landlord and the tenant.

Lessor's account. On the question of whether the lessor has the right to deduct VAT amounts on services consumed by the tenant, there are two positions. According to the first position, the lessor can deduct only that portion of the VAT that relates to the cost of utilities consumed by him personally. The landlord does not sell utilities and does not receive revenue from this operation, so he does not have to issue an invoice to the tenant for the amount of utilities he consumes. Therefore, upon receiving Money, transferred by the tenant to the landlord in order to compensate the landlord's expenses for paying for these services, there is no subject to VAT taxation (letters of the Ministry of Finance of Russia dated December 31, 2008 No. 03-07-11/392, December 26, 2008 No. 03-07-05/51, Federal Tax Service of Russia in Moscow dated 05.21.08 No. 19-11/48675, resolution of the FAS Volga District dated 03.04.08 No. A65-8421/2007-SA1-37, FAS Central District dated 02.14.08 No. A48-1629/07-6, Determination of the Supreme Arbitration Court of the Russian Federation dated January 29, 2008 No. 18186/07).

In addition, the landlord does not have the right to reissue invoices to the tenant, since in this case he is not an intermediary between the tenant and the service provider and, therefore, the provisions of clauses 3 and 7 of the Rules for maintaining logs of received and issued invoices do not apply to him , purchase books and sales books when calculating value added tax.

Therefore, it follows that the lessor:

accepts for deduction only that part of the VAT that falls on the share of services consumed by him;

VAT, which accounts for the share of services consumed by the tenant, is included in the cost of these services;

presents the tenant with the cost of utilities including VAT (provided by the utility services).

However, there is another position: the lessor in such a situation has the right to apply a deduction (resolutions of the Federal Antimonopoly Service of the Ural District dated December 11, 2008 No. Ф09-9211/08-С2, Federal Antimonopoly Service of the Central District dated March 28, 2007 No. A48-4688/06-19). The arguments for this position are as follows. The lessor is obliged to provide the premises for rent in the condition established by the contract, i.e. in a condition suitable for use. The landlord enters into contracts with utility services, which present him with the VAT amount and issue an invoice for the cost of services provided. Thus, the purchase of utilities by the landlord is one of the necessary conditions for renting out the premises. Consequently, these services are purchased to carry out transactions subject to VAT, since services for leasing property are subject to VAT.

If the lessor fulfills all the conditions necessary for applying a tax deduction, then he has the right to accept the entire amount of VAT presented by utility service providers for deduction in full. In this case, for reimbursement to the tenant, he presents the cost of utilities without taking into account the VAT presented by the utility services.

Tenant's account. There are also two positions on the issue of the legality of the tenant’s use of VAT deductions.

According to the first position, the tenant cannot apply the deduction, since the landlord does not have the right to issue him an invoice. Thus, the tenant does not comply with one of the conditions for the emergence of the right to deduction, established by paragraph 1 of Art. 172 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated March 24, 2007 No. 03-07-15/39, Federal Tax Service of the Russian Federation for Moscow dated July 16, 2007 No. 19-11/067415, resolutions of the Federal Antimonopoly Service of the West Siberian District dated September 1, 2008 No. F04- 5318/2008(10782-A46-40), 03/24/08 No. F04-2074/2008(2736-A45-41).

If the lessor does not issue an invoice, then the amount of VAT attributable to the share of consumed utilities can be taken into account by the lessee as part of expenses. According to the second position, the tenant has the right to deduct the amount of VAT on the basis of re-issued invoices, subject to compliance with other requirements established by clause 2 of Art. 171, paragraph 1, art. 172 of the Tax Code of the Russian Federation (resolutions of the Federal Antimonopoly Service of the Moscow District dated March 17, 2009 No. KA-A40/1688-09, December 25, 2008 No. KA-A40/12036-08-p, the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2009 No. 12664/08). Arguing its decision, the court indicated that use of the rented premises is possible only if it is provided with heat, light, water, etc. Therefore, the provision of utilities is inextricably linked with the provision of rental services.

Rent excluding the cost of utilities

In this case, the tenant enters into a separate agreement to pay for utilities. At the same time, in order for his rights not to be violated, the landlord must approve the method of mutual settlements between the tenant and utility services.

Since the tenant works directly with utility services, invoices are issued to him and not to the landlord, so he has the right to deduct VAT on utility costs.

Agency agreement as one of the ways to pay for utilities between the landlord and the tenant

To process compensation for utility payments, many organizations enter into an agency agreement, according to which the landlord acts as an agent and the tenant as a principal. Acting as an intermediary between utilities and the tenant, the landlord can reissue the invoice received from the utility services to the tenant, and the tenant can deduct the VAT indicated in this invoice.

Since the lessor does not carry out transactions for the sale of utilities, he does not have obligations to calculate and pay VAT. However, he becomes obligated to pay VAT on the value of his remuneration. An intermediary agreement is paid, therefore, it is advisable for the parties to such an agreement to provide for the payment of remuneration for the lessor performing the functions of an intermediary.

On the issue of applying a VAT deduction by a tenant from the cost of utilities paid through an intermediary landlord, decisions of arbitration courts are ambiguous. For example, the resolution of the Federal Antimonopoly Service of the Moscow District dated September 25, 2008 No. KA-A40/8932-08 states that the tenant has the right to apply a deduction for utilities paid through an intermediary landlord. If the tenant has an invoice reissued by the landlord for payment of utility services received from specialized organizations, then he has the right to deduct the amount of VAT on utility costs, subject to compliance with other requirements established by clause 2 of Art. 171, paragraph 1, art. 172 of the Tax Code of the Russian Federation (see also the resolution of the Federal Antimonopoly Service of the North-Western District dated 09/08/08 No. A66-109/2008).

However, the resolution of the Federal Antimonopoly Service of the West Siberian District dated August 27, 2008 No. Ф04-5231/2008(10532-А03-25)) states that the mediation agreement actually determines the procedure for reimbursement of utility costs. Since the landlord does not sell utilities, therefore, this operation is not subject to VAT, and the tenant does not have the right to deduct the amount of VAT according to the re-issued invoices.

Leasehold improvements

During the lease term, the tenant may make repairs to the rental property. Improvements are divided into separable and inseparable.

Separable Improvements

Separable improvements include improvements that can be separated from the leased property without causing harm and subsequently used separately from it. Separable improvements to the leased property made by the tenant are his property, unless otherwise provided by the agreement (Article 623 of the Civil Code of the Russian Federation).

Income tax. The lessee's investments related to the production of separable improvements form the cost of a separate fixed asset item in his accounting. Depending on the cost and period of use of the improvements, the tenant's expenses for their implementation are recognized as costs for the acquisition of depreciable property or are included in its current expenses.

If the initial cost of improvements is more than 20,000 rubles, their period beneficial use exceeds 12 months, and the improved object is used to generate income, separable improvements are recognized as depreciable property. The tenant pays off the cost of these improvements by calculating depreciation.

The lessee begins to accrue depreciation on separable improvements taken into account as part of the depreciable property from the 1st day of the month following the month in which this improvement was put into operation.

For separable improvements, the lessee has the right to apply a depreciation bonus by simultaneously including in the expenses of the reporting or tax period the costs of capital investments in the amount of no more than 10% (for fixed assets belonging to the third to seventh depreciation groups - no more than 30%) of the initial cost of the separable improvements. The possibility of applying bonus depreciation must be provided for in the taxpayer's accounting policy.

VAT. The tenant has the right to deduct VAT presented as part of the cost of separable improvements if all the conditions provided for in Art. 171 and 172 of the Tax Code of the Russian Federation. Separable improvements must be used in activities subject to VAT, they must be taken into account and have an invoice with the allocated tax amount.

Property tax. In accounting, the tenant's expenses for the creation (purchase) of separable improvements form the initial cost of an item of fixed assets or inventories. The cost of separable improvements included in inventories is written off as an expense at the time of commissioning. To ensure the safety of these objects, it is advisable to organize proper control over their movement.

Separable improvements that the tenant records as fixed assets must be included in the property tax base. If separable improvements are accounted for as inventories, then they are not subject to property tax.

Inseparable improvements

Inseparable improvements that cannot be separated from the leased object itself are recognized as the property of the lessor and are transferred to him at the end of the lease term. Improvements to the leased property may be made with or without the consent of the lessor. In this case, the cost of inseparable improvements made without the consent of the lessor is not reimbursed. The cost of permanent improvements made at the tenant's own expense and with the consent of the landlord must be reimbursed by the landlord upon termination of the lease.

Income tax. Capital investments in leased fixed assets in the form of inseparable improvements made by the lessee with the consent of the lessor are recognized as depreciable property.

These capital investments are depreciated in the following order:

capital investments, the cost of which is reimbursed to the lessee by the lessor, are depreciated by the lessor in the manner established by Chapter. 25 Tax Code of the Russian Federation;

capital investments made by the lessee with the consent of the lessor, the cost of which is not reimbursed by the lessor, are depreciated by the lessee during the term of the lease agreement, based on depreciation amounts calculated taking into account the useful life of the leased fixed assets.

Lessor's account. In the tax accounting of the lessor, the cost of gratuitously received inseparable improvements that are not reimbursed to the lessee is not recognized as taxable income due to subclause. 32 clause 1 art. 251 Tax Code of the Russian Federation. At the same time, the lessor has no right to increase the initial cost of the leased item returned to him by the amount of inseparable improvements. In addition, the lessor cannot separately depreciate capital investments in the form of permanent improvements made without his consent and subsequently transferred to him free of charge. This right is granted to the landlord only on the condition that he reimburses the tenant for the cost of the improvements made.

In accordance with paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, capital investments, the cost of which is reimbursed by the lessor to the lessee, are depreciated by the lessor in the general manner. Depreciation begins on the 1st day of the month following the month in which the depreciable property in the form of inseparable improvements was put into operation.

The lessor must be guided by the general procedure for calculating depreciation after an increase in the original cost of the property, i.e. all conditions must be met, as if capital investments in the form of reconstruction (modernization) were carried out by the lessor himself. In addition, the lessor has the right to take advantage of the depreciation bonus and write off at a time up to 10% (30% for leased objects belonging to depreciation groups 3–7) of the costs of capital investments in the form of inseparable improvements.

Tenant's account. The lessee may depreciate the inseparable improvements made by him to the leased property if two conditions are met:

capital investments were made with the consent of the lessor;

the cost of capital investments made is not reimbursed by the lessor.

If these conditions are met, capital investments made by the lessee in the form of inseparable improvements to the leased property are amortized by the lessee during the term of the lease agreement.

Capital investments in the form of inseparable improvements made by the tenant are inextricably linked with the leased object itself, therefore, to calculate the depreciation rate for them, the useful life established by the Classification of fixed assets for the leased object is used (letter of the Ministry of Finance of Russia dated May 14, 2008 No. 03-03-06 /2/52).

Thus, when determining the useful life, the lessee must be guided by the terms established for the depreciation group into which the leased object falls. It is on the basis of this period that the amount of depreciation for the inseparable improvements made will be calculated (letter of the Ministry of Finance of Russia dated May 14, 2008 No. 03-03-06/2/52).

If an organization rents, for example, premises in a building belonging to the 10th depreciation group and makes inseparable improvements to these premises, then the useful life of the improvements made will have to be determined in accordance with the 10th depreciation group. The minimum possible useful life in this situation would be 361 months. (lower limit for the 10th depreciation group).

Depreciation is accrued by the tenant from the next month after the improvements he made were put into operation. After the lease term ends and the leased object is returned to the lessor, depreciation ceases. If the useful life of the leased property is longer than the term of the lease agreement, then part of the cost of capital investments in the form of inseparable improvements will not be depreciated, therefore, the lessee will not be able to recognize part of the costs of the inseparable improvements made.

As for the application of the depreciation bonus, for capital investments in leased fixed assets, a special procedure for calculating depreciation is established, provided for in paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, therefore, the rules for applying depreciation bonuses for inseparable improvements do not apply to the tenant (letters of the Ministry of Finance of Russia dated May 22, 2007 No. 03-03-06/2/82, May 24, 2007 No. 03-03-06/1/302).

Inseparable improvements made by the tenant without the consent of the landlord are not subject to depreciation. According to paragraph 1 of Art. 256 of the Tax Code of the Russian Federation, capital investments in the form of inseparable improvements in leased fixed assets are included in depreciable property only if these improvements have been agreed upon with the lessor.

If, under the terms of the agreement, the lessor, at the end of the lease period, reimburses the tenant for the residual value of the improvements made by him, the amount of compensation will be included by the tenant in income (as part of sales proceeds), and the residual value of the improvements will be taken into account as expenses on the basis of Art. 268 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 03/07/08 No. 03-03-06/1/159, 02/05/08 No. 03-03-06/2/12).

Methods for calculating depreciation. Since 2009, depreciation for all depreciable property items has been calculated in the manner specified in the organization’s accounting policies. However, in paragraph 3 of Art. 259 of the Tax Code of the Russian Federation lists types of property that are always depreciated only using the straight-line method: buildings, structures, transmission devices included in the eighth to tenth depreciation groups.

If the tenant will depreciate capital investments in leased property, which belongs to the eighth to tenth depreciation groups, then depreciation on them will have to be calculated using the straight-line method. The nonlinear method cannot be applied to such capital investments (letter of the Ministry of Finance of Russia dated May 10, 2006 No. 03-03-04/1/441).

With both the linear and non-linear methods, the lessee accrues depreciation on inseparable improvements from the 1st day of the month following the month in which the property was put into operation.

Depreciation period. For a tenant who has made inseparable improvements to the leased property, it is fundamental how the relations of the parties are formalized at the end of the lease agreement. If the contract is extended (renewed), then the original contract under which the improvements were made continues to be in effect. Consequently, the tenant, even after the extension, can continue to charge depreciation on the improvements he has made (letter of the Ministry of Finance of Russia dated March 20, 2007 No. 03-03-06/1/167).

If the parties renew the lease agreement, then the previous agreement terminates and a new agreement comes into force. In this case, the tenant loses the right to amortize the improvements made by him under the old lease agreement, which has ceased to be valid (letter of the Ministry of Finance of Russia dated October 8, 2008 No. 03-03-06/2/140).

VAT. The transfer to the lessor of inseparable improvements to the leased premises, made by the lessee on its own or with the involvement of contractors, is subject to VAT, and he is obliged to present for payment to the lessor the amount of VAT on the cost of inseparable improvements (letter of the Ministry of Finance of Russia dated August 29, 2008 No. 03-07-11/290) .

The tenant is obliged to charge VAT and draw up an invoice regardless of whether such transfer takes place on a paid (including against rent) or gratuitous basis and who carried out the work - the tenant or the contractor (FAS PO resolution No. A12 dated June 24, 2008 -18629/07, Far Eastern Education Department dated 10.20.08 No. F03-4340/2008).

At the same time, the FAS Moscow District, in its resolution dated September 30, 2008 No. KA-A40/9153-08 in case No. A40-5452/08-108-22, indicated that inseparable improvements to the leased premises are the property of the lessor, therefore their transfer cannot be recognized implementation, and the object of VAT taxation does not arise (see also the resolution of the Federal Antimonopoly Service of the North-Western District dated 04/21/06 in case No. A56-7638/2005).

Transfer of ownership of goods, work performed, services provided free of charge is recognized as the sale of goods (work, services). Thus, transactions involving the gratuitous transfer of inseparable improvements by the tenant are included in turnover subject to VAT (as transactions involving the transfer of work results).

VAT must be charged at the moment when the inseparable improvements are transferred to the lessor. As a rule, such transfer occurs at the end of the lease agreement, when the leased property (together with inseparable improvements) is returned to the lessor. When transferring permanent improvements to the lessor, the lessee is required to issue an invoice and register it in the sales book.

Since the gratuitous transfer of inseparable improvements is subject to VAT, the tenant has the right to deduct the VAT paid by him when making inseparable improvements. To do this, he must fulfill the conditions provided for in Art. 171 and 172 of the Tax Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Moscow District dated 02.13.07 and 02.19.07 No. KA-A40/450-07 in case No. A40-31107/06-116-180). In turn, the lessor will not be able to deduct VAT on inseparable improvements received free of charge. After all, with a gratuitous transfer, the tenant does not present the amount of VAT to the lessor for payment based on the invoice (letter of the Ministry of Finance of Russia dated March 21, 2006 No. 03-04-11/60).

Property tax. Capital investments made by the tenant in the form of inseparable improvements to leased objects, accounted for as part of the tenant's fixed assets, reimbursed (not reimbursed) by the lessor, are subject to property tax until their disposal under the lease agreement (letter of the Ministry of Finance of Russia dated October 24, 2008 No. 03- 05-04-01/37). It is advisable for the tenant not to wait for the end of the lease term and to transfer the improvements made to the landlord immediately after completion of the work. This will allow the tenant to avoid disagreements with the tax authorities.

In the lessor's accounting, inseparable improvements made by the lessee increase the initial cost of the leased item or are accounted for as a separate fixed asset item. With any of the accounting options, the lessor is required to pay property tax on the cost of improvements. It includes the cost of inseparable improvements in the property tax base, starting from the moment when the improvements are received from the tenant under the transfer and acceptance certificate or other similar documents.

Lessor – foreign organization

A foreign company that owns a property in Russia by right of ownership can act as a lessor of non-residential premises.

According to regulatory authorities, leasing property foreign organization may lead to the formation of a permanent representative office if it is carried out on a systematic basis (order of the Ministry of Taxes of Russia dated March 28, 2003 No. BG-3-23/150, letter of the Federal Tax Service of Russia for Moscow dated January 19, 2007 No. 20-12/05685).

Rent received by a foreign organization is subject to income tax at a rate of 20%.

Transactions involving the leasing of real estate located in Russia by a foreign company are subject to VAT in accordance with the generally established procedure.

When a foreign organization acquires ownership of real estate on the territory of Russia, it becomes a payer of property tax and is obliged to register with the tax authority. Consequently, when leasing such property, it must independently calculate and pay VAT on the rent to the budget.

Moreover, if the leasing of real estate by a foreign company is not regular, then this activity is not recognized as entrepreneurial. Consequently, the responsibilities for calculating and paying income tax and VAT to the budget are assigned to the Russian organization (tenant), recognized as a tax agent. In turn, if the activity of a foreign company in leasing real estate forms a permanent establishment, then the responsibilities for calculating and paying income tax and VAT to the budget are assigned to the representative office.

Renting housing for employees – foreign citizens

Companies employing the labor of foreign citizens can provide them with free housing or pay monetary compensation to pay apartment rent for the period of working activity. The question of whether in this case income subject to personal income tax arises for a foreign worker, and the object of UST taxation is controversial.

There are two positions. According to the first position, when an employer provides housing to a foreign citizen as provided for in an employment contract, income arises that is subject to personal income tax and unified social tax.

The second position is that taxable income does not arise for foreign citizens when an employer provides housing, since free provision of housing refers to compensation that is not included in the wage system and its purpose is to reimburse employees for costs associated with performing work duties. Payment for housing should be considered as a type of expense for settling into a new place of residence.

The employer is obliged to reimburse expenses when an employee moves to work in another area, including expenses for settling into a new place of residence. Reimbursement of these expenses is compensation to the employee related to the performance of his work duties. Accordingly, the object of UST taxation does not arise (Resolution dated 12.05.2008 N 09AP-3569/2008-AK).

Compensation payments related to the free provision of residential premises are also not subject to personal income tax. Since the obligation to provide housing is assigned to the employer, no taxable income arises when paying for housing to foreign employees (resolution of the Ninth Arbitration Court of Appeal dated May 12, 2008 No. 09AP-3569/2008-AK, FAS Central District dated December 11, 2007 No. A48-717/ 07-2, Determination of the Supreme Arbitration Court of the Russian Federation dated April 23, 2008 No. 4623/08).

Comments

09/21/2015 Lyudmila

The conclusion of an Agency Agreement is generally problematic, because contracts for utility services have already been concluded at the time the operation of the real estate begins, and tenants (aka Principals) appear and change later. Such an Agency Agreement (letter of the Ministry of Finance of Russia dated April 14, 2011 No. 03-11-06/2/55) can be challenged by the inspectorate

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