Gratuitous use of property: drawing up a contract, accounting, taxation. Free use from the lender How to account for property transferred for free use

From the beginning of this year, state (municipal) institutions in their work must apply the provisions of the Federal Accounting Standards, including the FSBU "Rent". We will talk about how to correctly reflect in accounting the objects that an institution has for lease or free, perpetual use in this article.

Operating and finance (non-operating) leases

Starting from 01/01/2018, transactions under lease and free use agreements are reflected in the accounting records of public sector organizations in accordance with the norms of the federal standard “Rent”, approved by order of the Ministry of Finance of Russia dated December 31, 2016 N 258n (hereinafter referred to as the “Rent” Standard) and federal standard "Fixed Assets", approved by order of the Ministry of Finance of Russia dated December 31, 2016 N 257n (hereinafter referred to as the "Fixed Assets" Standard). All accounting standards for public sector organizations are applied in conjunction. In addition, specialists of the financial department in Letter dated December 13, 2017 N 02-07-07/83464 “On the direction of the Guidelines for the application of the federal accounting standard for public sector organizations “Rent” (GHS “Rent”) brought to the attention of institutions methodological recommendations on its application.

In order to reflect the facts of economic life in accounting, a budgetary institution should apply Federal standards in conjunction with the provisions of the Instruction approved by Order of the Ministry of Finance of Russia dated December 1, 2010 N 157n (hereinafter referred to as Instruction N 157n), and the Instruction approved by Order of the Ministry of Finance of Russia dated December 16, 2010 N 174n (hereinafter - Instruction N 174n), Instructions approved by order of the Ministry of Finance of Russia dated December 6, 2010 N 162n (hereinafter - Instruction N 162n).

In 2018, accounting for gratuitously received and rented real estate is carried out on the balance sheet accounts of institutions.

Note that the lease agreement, by definition, is compensated, since it involves the provision of property for temporary possession and (or) use for a fee. If the terms of an agreement named as a lease agreement imply that it is gratuitous, it can be classified as an agreement for gratuitous use (loan agreement).

The Lease standard provides for two types of leases: operating and financial (non-operating). The procedure for recording financial and operating leases in the accounting accounts is different and depends on the qualifications of the concluded agreement.

The assignment of a specific agreement to a particular type of lease, as well as the assessment of the accounting object arising in accordance with it, is carried out on the earlier date of the following dates:

• the date of signing the lease agreement (property lease) or the agreement for gratuitous use;
• the date of acceptance by the accounting entity of obligations in relation to the basic conditions for the use and maintenance of property provided for in the agreement.

In an operating lease, the tenant institution receives property for temporary use. The right of operational management of this object does not pass to him . The institution uses the property and pays rent to the owner for this. This also includes the case when an institution uses property free of charge. The rights remain with the owner, but the rent is zero.

The full list of features is set out in paragraphs 12-16 of the Lease Standard. To classify a rental object, one or more characteristics are sufficient.

Important: if an object meets one or two characteristics of an operating lease and at the same time has at least one characteristic of a non-operating lease, such an object must be recognized as a non-operating (financial) lease.

In state (municipal) institutions, property transferred (received) for lease is generally recognized as the object of an operating lease. Finance leases are not currently common among public sector institutions, but theoretically they could be.

A non-operating (financial) lease assumes that the institution will purchase the property in installments. This may include treasury property that a government agency transferred for use to commercial or non-profit organizations, as well as property under a leasing agreement.

Thus, the classification of a lease agreement (free use) relates to the professional judgment of an accountant and is carried out on the basis of the criteria listed in paragraphs. 12 and 13 GHS "Rent".

In accordance with the recommendations of the Ministry of Finance of the Russian Federation, it is necessary to maintain separate records of objects for regular lease (operating lease), free use, and also for leasing (financial lease). The standard is mandatory when maintaining budget (accounting) records from January 1, 2018 and preparing reports starting from 2018 reporting.

How to determine the value of donated property?

The right to use the rental accounting object on preferential terms (including free of charge) is accepted for accounting at fair value, which means the amount of rental payments that could have been made without the benefit. It should be noted here that the difference between the total amount of the minimum lease payment under operating leases on preferential terms and the amount of the minimum lease payment calculated on market conditions (at the market (fair) value of lease payments) is reflected separately as part of deferred income from operating leases on preferential terms conditions.

Objects accepted onto the balance sheet on the basis of gratuitous use agreements newly concluded in 2018 are taken into account at their fair value, determined by the market price method.

When using the market price method, the fair value of an asset (liability) is determined based on current market prices or data on recent transactions with similar or similar assets (liabilities) made without deferred payment (clause 55 of the GHS "Conceptual Framework...", approved by order Ministry of Finance of Russia dated December 31, 2016 N 256n).

At the same time, if the institution has “transferring” gratuitous use agreements to 2018, lease agreements, under which in 2017 and earlier real estate objects should have been accounted for in off-balance sheet account 01 at the value specified by the transferring party or due to its absence at the conditional value of 1 object is 1 ruble, then during the inter-reporting period they are transferred to the balance sheet at the value specified in the contract in the first case and at fair value in the second. The transfer is carried out on the basis of the Accounting certificate (f. 0504833) using account 0 401 30 000 “Financial result of previous reporting periods”.

Real estate selected during the inventory financial lease objects, during the inter-reporting period, in accordance with clause 58 of the GHS "Fixed Assets", it should be reflected at the cadastral value on account 101 00. If the institution does not have the current cadastral value of the financial lease object, then it must be reflected on account 101 00 in a conditional valuation equal to 1 ruble (clause 59 of the GHS "Fixed Assets", guidelines for the application of the transitional provisions of the GHS "Fixed Assets" for the first application, communicated by letter of the Ministry of Finance of Russia dated November 30, 2017 N 02-07-07/79257).

Accounting for rental properties

For operating lease (free use)at the receiving party accounting objects will be:

• right to use property (account 0 111 00 000);
• obligations to pay lease payments (account 0 302 24 000);
• depreciation of the right to use property (account 0 104 40 450);
• expenses (liabilities) for conditional lease payments (accounts 0 302 00 000, 0 109 00 000, 0 401 20 000).

In accordance with paragraph 21 of the GHS "Lease", the object of accounting for an operating lease is the right to use an asset accepted for accounting. The object is depreciated during the period of use of the property established by the contract, using the method used for depreciation of fixed assets similar to the property received for use.

Depreciation of the right to use an asset (recognition of current expenses in the amount of accrued depreciation) is calculated monthly in the amount of lease payments due.

In accounting, transactions are reflected as follows:

V.L. Kiseleva,
expert of the Publishing House "Accountant's Advisor"

The procedure for reflecting lease accounting objects

When applying the “Rent” Standard for the first time (approved by order of the Ministry of Finance of Russia dated December 31, 2016 No. 258n), the question arises: How to classify a contract of gratuitous perpetual use? Property received for use under this agreement before January 1, 2018 is recorded in off-balance sheet account 01 “Property received for use.”
According to clause 26 of the Lease Standard, the transfer of property for free use is a special case of concluding a lease agreement on preferential terms. The classification of a lease, including whether an agreement is an operating or finance lease, is a matter of the accountant's professional judgment. According to the provisions of paragraph 37 of the Standard “Presentation of Accounting (Financial) Reports”, information about professional judgments developed in the process of applying accounting policies and having a significant impact on the indicators of the accounting (financial) statements (for example, professional judgments about whether contracts are lease agreements ), is subject to disclosure in the explanatory note to the financial statements. A unified professional judgment form is not approved by law, so it is necessary to develop such a document and approve it by local regulations.
An agreement of indefinite gratuitous use can also be qualified as an operating lease using the following reasoning.
As a rule, in accordance with the provisions of the agreement for the free use of non-residential premises, the borrower, for example, a budgetary educational institution, is provided with the object for use for educational purposes. Thus, the institution receives the right to use non-residential premises to extract its useful potential in order to fulfill the state task currently approved for 2018-2020.

Question: How and with the help of what documents to correctly display the following situation with fixed assets in accounting. We received equipment under a contract from a third party. It was accepted into the off-balance sheet account on 01.31. Under the same agreement, we transfer this equipment for use to another third party organization, i.e. must reflect this in another off-balance sheet account 26.31. At the same time, this equipment remains ours. What document needs to be used to carry out this operation so that the accepted fixed asset is displayed on both 01.31 and 26.31 accounts?

Reply from 05/21/2015:

Off-balance sheet account 01 “Property received for use”, in accordance with clause 333 of the Instructions, approved. by order of the Ministry of Finance of Russia dated December 1, 2010 No. 157n (hereinafter referred to as Instruction No. 157n), is intended for accounting for movable and immovable property received by an institution for free use.

Thus, off-balance sheet account 01 reflects the property that the institution uses on one legal basis or another, which should be preserved and checked during the inventory.

Question:

A municipal government agency has a car for free use (listed on an off-balance sheet account). How is this object accounted for in connection with the entry into force of the GHS “Rent”? Does it need to be transferred from the balance sheet to the institution’s balance sheet?

Answer:

From 01/01/2018, when reflecting transactions for the receipt (transfer) of property for free use, one should be guided by the GHS “Rent”, GHS “Fixed Assets” and GHS “Conceptual Fundamentals”.

According to clause 8 of the GHS “Rent”, accounting objects arising during the transfer of state (municipal) property for free use are classified as lease accounting objects. For accounting purposes, such objects are classified as either operating lease accounting objects or non-operating (financial) lease accounting objects - depending on the expected period of use of the property in relation to the remaining useful life of the transferred object, the amount of lease payments in relation to the fair value of the object accounting for leases and compliance with other conditions provided for in clauses 12 – 14 of the GHS “Lease”.

Please note: accounting objects that arise when state (municipal) property is assigned with the right of operational management to institutions in order to fulfill their assigned powers (functions) are not classified as lease accounting objects (clause 10 of the GHS “Rent”).

Note that the classification of lease accounting objects is carried out by assessing the contractual terms of use of the property and its maintenance.

For example, by virtue of the provisions of the GHS “Rent”, when concluding a gratuitous agreement unlimited use of a car, a non-operating (financial) lease relationship arises (see letters from the Ministry of Finance of the Russian Federation dated December 15, 2017 No. 02-07-07/84237 and dated November 30, 2017 No. 02-07-07/79257). A car received by an institution under a free use agreement concluded for a certain period , can be accounted for as an operating lease item.

That is, taking into account the provisions of the GHS “Lease”, it is important to correctly classify lease accounting objects, dividing them into operating and financial leases, since such objects are taken into account in budget accounting in different ways.

Note: In order to switch to the use of the GHS “Rent”, we recommend using the guidelines (recommendations) of the Ministry of Finance, communicated by letters dated December 13, 2017 No. 02-07-07/83463 and No. 02-07-07/83464.

Before the application of the GHS “Rent”, a car received by an institution for free use should have been accounted for on the off-balance sheet account “Property in Use” at the cost indicated (determined) by the transferring party (owner), or in a conditional valuation: one object - 1 rub. (if this is established by the accounting policy).

From 01/01/2018, a car, depending on whether it belongs to the object of an operating or financial lease, must be taken into account in the budget accounting accounts 1,111,45,000 “Rights to use vehicles”, 1,101,35,000 “Vehicles – other movable property of the institution”, respectively (clause 5, 41.1 Instructions No. 162n).

The specified object should be reflected on the balance sheet at its fair value, determined as of the date of its classification using the market price method, as if the right to use the property had been granted on commercial (market) terms (hereinafter referred to as the fair value of lease payments) (clause 26 of the GHS “Lease” , Letter of the Ministry of Finance of the Russian Federation dated 05/08/2018 No. 02-07-08/30805).

The difference between the amount of lease payments and the amount of fair value of lease payments is recognized as deferred income (deferred income) from the provision of the right to use the asset (clauses 27.1, 28.1 of the GHS “Lease”).

During the period of use of the property, deferred income from granting the right to use the asset, as well as for the recorded right to use the asset (for an operating lease) or fixed asset (for a finance lease) is recognized evenly (monthly) as part of the financial result of the current period (clauses 27.1, 28.2 GHS "Rent").

To switch to the use of the GHS “Rent” in the situation under consideration, we recommend:

conduct an inventory of property in order to identify the actual presence of a car received for free use under an agreement concluded before January 1, 2018;

• Accepted the right to use a car – the object of an operating lease

  1 111 45 350
  1 401 30 000

  1 401 30 000
  1 401 40 182

  Finance lease

  A car – an object of financial lease – has been registered

  1 101 35 310
  1 401 30 000

  1 401 30 000
  1 401 40 182

  2. Monthly during the remaining useful life of the vehicle:

  	Debit	Credit
  Revenues of the current financial year are recognized in the amount of the monthly lease payment, calculated based on the fair (market) value of the car
  Operating lease
  Depreciation has been calculated on the registered right to use the car	1 109 x 0 224 1 401 20 224
  Finance lease
  Depreciation has been accrued on a car – an object of financial lease	1 109 x 0 271 1 401 20 271

"Financial newspaper", 2005, N 17

The legal relations of the parties under a gratuitous use agreement are regulated by Chapter 36 “Gratuitous Use” of the Civil Code of the Russian Federation. Article 689 of the Civil Code of the Russian Federation determines that under an agreement for gratuitous use (loan agreement), one party (lender) undertakes to transfer property (thing) for gratuitous temporary use to the other party (borrower), and the latter undertakes to return the same thing in the condition in which it was it was received subject to normal wear and tear or in the condition stipulated by the contract. The relationship of the parties under such an agreement in some cases is regulated by the rules provided for by the relevant articles of the Civil Code of the Russian Federation for a property lease agreement (clause 2 of Article 689 of the Civil Code of the Russian Federation). Thus, the provided agreements have a dual nature: on the one hand, it is a loan agreement, and on the other hand, it is similar to a lease agreement.

It must be emphasized that the ownership of the received property does not pass to the borrower, but remains with the lender. In this case, the rights of third parties to this property are not subject to change or termination. According to Article 694 of the Civil Code of the Russian Federation, the lender is obliged, when concluding an agreement for gratuitous use, to warn the borrower about all the rights of third parties to this property (easement, right of pledge, etc.).

The lender can only be the owner of the property or another person authorized by law or the owner. But a commercial organization does not have the right to transfer property for free use to the founders, participants, managers and members of its management or control bodies (Article 690 of the Civil Code of the Russian Federation).

The accounting procedure for fixed assets (hereinafter referred to as OS) is determined by PBU 6/01, as well as the Guidelines for accounting of fixed assets developed on its basis, approved by Order of the Ministry of Finance of Russia dated October 13, 2003 N 91n (hereinafter referred to as the Guidelines). Fixed assets belonging to the lender, transferred by him for free use, are accounted for separately from other fixed assets in the subaccount “Fixed assets transferred for free use” of account 01.

The cost of fixed assets is repaid by calculating depreciation. Depreciation is charged until the cost is fully repaid or written off from accounting, regardless of the organization’s performance in the reporting period. During the useful life of an asset, depreciation can be suspended only if it is transferred by decision of the head of the organization to conservation for a period of more than three months, as well as for the period of restoration of the object, the duration of which exceeds 12 months. Therefore, depreciation deductions for fixed assets transferred for free use are made by the lender in the usual manner. In this case, the subaccount “Depreciation of fixed assets transferred for free use” of account 02 is used.

Based on clause 5 of PBU 10/99, the amount of depreciation accrued on fixed assets transferred for temporary use cannot be recognized as expenses for ordinary activities. Such expenses are recognized in accounting as other expenses (clause 4 of PBU 10/99) and are reflected in subaccount 91-2.

In addition, it must be borne in mind that in the accounting and tax accounting of the lender, depreciation is not calculated simultaneously. Consequently, there is a need to apply PBU 18/02. In our case, the amount of depreciation accrued by the lender is a deductible temporary difference, since it leads to the formation of deferred income tax. The portion of deferred income taxes that is expected to reduce income taxes in subsequent reporting periods is a deferred tax asset. Such assets are reflected in a separate synthetic account 09 “Deferred tax assets” in correspondence with account 68 “Calculations for taxes and fees”. When the fixed assets are returned to the lender at the end of the gratuitous use agreement, deferred tax assets are written off by an entry on the credit of account 09 in correspondence with account 68.

The cost of fixed assets received for use from the lender, who is its owner, is reflected by the borrower on off-balance sheet account 001 “Leased fixed assets” in the valuation specified in the agreement. Accordingly, the borrower does not accrue depreciation.

During operation, borrowers often make inseparable improvements to the fixed assets received under a free use agreement, and the funds spent on this, according to the agreement, are not subject to return or compensation. In such a case, based on the Guidelines (clauses 10 and 35), it is necessary to reflect this operation as a capital investment in the operating system. Further, the non-reimbursable cost of inseparable improvements made by the borrower (since they are not compensated by the lender) should be considered as gratuitously transferred values ​​(to the lender).

The organization's expenses associated with the gratuitous transfer are non-operating expenses (clause 12 of PBU 10/99).

The gratuitous transfer of the property in question is reflected in the organization’s accounting records as a debit to account 91 in correspondence with a credit to account 08 “Investments in non-current assets.”

Due to the fact that the received property does not become the property of the borrower, corporate property tax on the value of the fixed assets is accrued by the lender, and accordingly is not accrued by the borrower.

Currently, there are two opposing positions on the issue of including in the tax base for the borrower's income tax the cost of fixed assets received under a gratuitous use agreement.

First position. In accordance with Article 41 of the Tax Code of the Russian Federation, income is recognized as economic benefit in monetary or in-kind form, taken into account if it is possible to evaluate it and to the extent that such benefit can be assessed. The activity of transferring fixed assets for temporary use should be classified as the provision of services. Accordingly, it is not the value of the property that is taxed, but the cost of the service for its transfer. And income in the form of services received free of charge relates to non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation) and is subject to inclusion in the tax base for income tax in the amount determined taking into account the provisions of Article 40 of the Tax Code of the Russian Federation.

Second position. The concepts of “agreement for the provision of services” and “agreement for the use of property” in the Civil Code of the Russian Federation are separated and regulated by various chapters (Chapter 39 and Chapters 34 - 36). Chapter 25 of the Tax Code of the Russian Federation does not directly indicate that the provision of services also includes the transfer of property for temporary use. This means that in this matter it is necessary to be guided by the provisions of the Civil Code of the Russian Federation. In addition, clause 2 of Article 248 of the Tax Code of the Russian Federation stipulates that property (services) is considered received free of charge if the receipt of this property (services) is not associated with the obligation of the recipient to transfer the property to the transferor (to provide services to the transferor). Since, based on the terms of the agreement for the gratuitous use of OS, after the expiration of the contract, they must be returned to the lender, such OS cannot be recognized as received free of charge. And there is no reason to include their value in the income tax base.

None of the above positions won an unconditional victory in the arbitration court. Therefore, the taxpayer, understanding the financial consequences, needs to make an informed decision.

For the lender, all expenses associated with the transfer of fixed assets under a gratuitous use agreement (including their cost) are not taken into account when calculating the tax base for income tax in accordance with clause 16 of Article 270 of the Tax Code of the Russian Federation.

The borrower, as a rule, has expenses associated with the maintenance of the received fixed assets, and sometimes with their radical improvement. Article 695 of the Civil Code of the Russian Federation establishes the obligation of the borrower to maintain an item received for gratuitous use in good condition, including carrying out routine and major repairs, and to bear all expenses for its maintenance, unless otherwise provided by the agreement of gratuitous use.

According to paragraph 2 of paragraph 1 of Article 253 of the Tax Code of the Russian Federation, costs associated with production and sales include costs for maintenance and operation, repair and maintenance of OS and other property, as well as for maintaining them in good condition. The Tax Code of the Russian Federation does not contain any reservations about whether this property is one’s own or obtained in some other way. Thus, if under an agreement for gratuitous use the borrower is obligated to use the property for its intended purpose and this property is used exclusively for production purposes, all expenses for its maintenance can be attributed to expenses that reduce the tax base for income tax as part of other expenses (Article .264 Tax Code of the Russian Federation).

Subparagraphs 1, 2, paragraph 2 of Article 171 of the Tax Code of the Russian Federation establish that VAT amounts presented to and paid by an organization when purchasing goods (work, services) on the territory of the Russian Federation are subject to deductions in relation to goods (work, services) acquired for carrying out operations , recognized as objects of taxation in accordance with Chapter 21 of the Tax Code of the Russian Federation. Therefore, VAT on paid expenses for the maintenance of the received property is accepted for deduction in the generally established manner.

Transport and other expenses associated with the delivery and acceptance procedure for fixed assets, both for the borrower and the lender in tax accounting in accordance with clause 16 of Article 270 of the Tax Code of the Russian Federation, are considered expenses not taken into account for tax purposes. Accordingly, VAT paid on such expenses is not deductible.

If the borrower has made inseparable improvements to the property received under an agreement for gratuitous use, and the funds spent on this according to the agreement are not subject to return or compensation, then costs in the form of the cost of gratuitously transferred expenses from the borrower are not taken into account for profit tax purposes (clause 16 of article 270 Tax Code of the Russian Federation).

For the purpose of calculating VAT, the transfer of ownership rights free of charge is recognized as a sale (clause 1 of Article 146 of the Tax Code of the Russian Federation). Consequently, with a gratuitous transfer, the borrower becomes subject to VAT. When sold free of charge, the tax base for VAT is determined as the cost of the specified expenses (Article 154 of the Tax Code of the Russian Federation). The accrued amount of VAT is reflected in this case as the debit of account 91 in correspondence with the credit of account 68. But, since during the gratuitous transfer of property an operation is carried out that is recognized as subject to VAT, you can deduct the amount of VAT recorded on account 19 (if there is an invoice and documents confirming the payment of VAT) associated with the payment of inseparable improvements. The amount of VAT accepted for deduction in accounting is reflected in the debit of account 68 in correspondence with the credit of account 19.

The cost of inseparable improvements made by the borrower to the lender's fixed assets in tax accounting is non-operating income and is included in the tax base for income tax (clause 8 of Article 250 of the Tax Code of the Russian Federation). And VAT is not accepted for deduction from the lender (Article 171 of the Tax Code of the Russian Federation).

M. Nikishina