Reimbursement of utility costs under the lease agreement. Contract for reimbursement of utility costs. How to take into account VAT for utilities if the landlord is an individual entrepreneur

Utilities become more expensive every year. For families with average income, these are minor changes in the budget. Low-income citizens, in turn, find it difficult to cope with payments. However, the state provides subsidies for housing and communal services.

What is it?

According to the legislation of the Russian Federation, the maximum payment for housing and communal services should not exceed 22 percent of the family income. Tariffs increase annually, in accordance with the region's cost of living. If the family is low-income, the rent amount should be reduced in accordance with Government Decree No. 541.

A certain category of citizens whose income is equal to or below the established annual subsistence level has the right to receive subsidies. In 2017, this figure is 9,776 rubles per person.

Compensation is social financial support for low-income citizens. Involves the payment of funds to pay for the apartment and utilities. Compensation for expenses is provided in full and in part to those who do not have debts for housing and communal services. In order to receive monthly benefits, you must pay utility bills no later than the 25th of each month, and also submit meter readings to service providers. It is especially important to provide this information to disabled veterans, for whom compensation is paid in accordance with the consumption rate.

Subsidies imply a commensurate reduction in rent in accordance with the cost of living of the region. In order to receive benefits, you must provide a certificate of income to the Housing Office. You are also required to report any changes, such as:

• moving to a new place of residence;
• basis for receiving another type of benefit;
• appointment of a new house manager;
• change of utility service provider.

Heroes of the USSR are exempt from paying utility bills.

Who is eligible to receive?

The legislation of the Russian Federation provides subsidies for utility bills to the following categories of citizens:

• large families (with 3 or more minor children);
• participants of the Second World War;
• veterans, military and government employees;
• honorary donors;
• participants in the elimination of the Chernobyl accident;
• single mothers;
• children - orphans;
• disabled people - pensioners.

In addition, regardless of place of residence, benefits are provided to owners, tenants and users of public housing. However, the law prohibits the provision of subsidies to utility debtors, as well as to foreigners.

The main purpose of the benefit is to help low-income and socially vulnerable families. Citizens have the right to receive subsidies from the state if they do not work and are the owners of only one residential property. Basically, discounts are provided for gas supply. Support is provided by regional self-government bodies, and the amount of the benefit is assigned individually for each case. For pensioners, discounts are provided for the following housing and communal services:

• water supply, drainage, electricity;
• maintenance and repair of the apartment;
• rental of premises.

Disabled people of groups I and II A 50% discount is provided on electricity and telephone bills. Pensioners over 80 years of age, as well as families of disabled children, are exempt from paying for major repairs of an apartment building.

Compensation for housing and communal services is provided:

• large families whose income is below the subsistence level;
• families of fallen conscripts;
• single pensioners;
• disabled from birth;
• workers of medical institutions and teachers (in villages and villages).

Amount of compensation

State support for low-income families and socially vulnerable citizens of the Russian Federation is provided on the basis of confirmed status. This could be a certificate or a certificate, a military ID. Compensation rates are established by law and may vary depending on the individual case. The standard provides the following dimensions:

• 30 percent refund;
• compensation of half of the settlement amount;
• full coverage of utility costs.

Low-income large families receive a refund of 30 percent of the paid rent if there is no debt. The list of services includes water supply, gas, electricity and heating. 50 percent of the calculation is reimbursed to disabled pensioners or other vulnerable categories of citizens to pay for all utilities. Heroes of the Second World War, the USSR, as well as honorary donors of the Moscow Region can count on full compensation.

Benefits from the state are provided to veterans and disabled pensioners, taking into account the area of ​​the apartment, the number of registered residents, as well as the average monthly family income. 50 percent of subsidies are provided for heating, electricity, drainage and waste removal. In addition, the following is taken into account:

• renovation of living space and maintenance of the apartment;
• ownership or rental.

If living conditions are unsatisfactory, a 50 percent discount on all types of utilities is provided.

How to get it?

In order to receive compensation for housing and communal services, you must pay all debts and then provide a package of documents with an application for government financial support. Cash refunds are provided to citizens at their place of residence and registration. The settlement amounts on the receipt must not exceed the consumption standard.

Compensation for utilities is provided on the basis of an income certificate. You need to contact local authorities or the territorial MFC. The decision to assign or refuse compensation is approved by government agencies within 10 days. If the request is granted, the citizen receives a monthly written notification with the following information:

• amount of compensation;
• list of utilities for which subsidies are provided;
• recalculation;
• receipts for payment of housing and communal services.

The grounds for refusal may be an incomplete list of required documents, as well as:

• loss of the right to compensation;
• the amount of compensation exceeds the actual payment for consumed housing and communal services;
• lack of registration at the citizen’s place of residence.

Receiving benefits and subsidies provided to citizens on the basis statements on the same principle.

Required documents

To receive compensation for utility costs, you must provide the following documents:

• written statement;
• passport of a citizen of the Russian Federation;
• registration certificate;
• House Book;
• certificate of ownership of the apartment;
• receipts for payment of housing and communal services.

In addition, depending on the case, a certificate of income, a military ID, a medical commission’s conclusion on assignment of a disability group, a pension certificate, an extract from the registry office on the number of children, and more are provided. The list of additional documents for receiving compensation also includes:

• a certificate from the Housing Office about the number of registered residents, the size of the apartment, as well as the state of repairs;
• certificate of temporary right to receive compensation.

Statement

Submission procedure

Monthly cash compensation for utility bills credited until the 10th. The citizen receives a written notification. Subsidies are valid for 6 months from the date of application. In the future, if necessary, the procedure should be repeated.

Funds are credited to the personal account of the apartment owner. Compensation is not taxed and can be spent on paying for any type of utility service.

When does the provision of compensation for utility services stop?

Subsidy payments are terminated on the following grounds:

• loss of the right to compensation for utility bills;
• death of a citizen;
• moving to another area.

In addition, some subsidies are issued for six months, for example, compensation for heating. The transfer of money stops from the moment of the last payment of the receipt.

Companies that have entered into a lease agreement often have questions regarding the payment procedure, as well as accounting and tax accounting of payments for utility services.

If an organization leases part of its premises, it (and not the tenant) makes payments to suppliers of utilities and other services that are necessary to support its activities. In most cases, utility reimbursement will be discussed separately.

Compensation by the tenant for services can be arranged in several ways:

• establishing in the rental agreement, which includes a fixed and variable part in accordance with the requirements of Art. 614 Civil Code of the Russian Federation;
• specifying rent compensation in a separate agreement on top of the fixed rate.

In the first case, utility payments may be part of a fixed rent amount. In such cases, reimbursement of utility costs by the tenant is carried out on the basis of preliminary calculations of the average monthly costs of paying for these services. The monthly rent increases by the same amount.

The procedure for displaying these transactions in accounting is similar to the procedure for recording rent payments.

Reimbursement system

The algorithm for paying bills to utility companies may involve different systems:

• based on meter readings;
• in accordance with the occupied space;
• in accordance with the power of the equipment installed in the premises.

In this case, the payment for utility services is carried out by the lessor. The tenant, in turn, must reimburse expenses based on relevant receipts and invoices that confirm the actual cost of utilities. The procedure for recording business transactions for compensation of fees is established by the relevant accounting documents.

Reimbursement of expenses for utility bills by the tenant to the landlord is not a transaction for the sale of services, and therefore is not subject to taxation and the need to pay value added tax. This is due to the fact that the lessor himself is not a service provider. In addition, in accordance with regulations, the latter himself receives services as a subscriber from the same organizations.

Agreement on reimbursement of utility costs

If the contract for reimbursement of utility costs involves fixed and variable parts, the calculation procedure is completely different than in the first case. Thus, the variable part may include payments, the amount of which is based on the expenses incurred by the lessor in connection with the leased property.

Then the parties to the contract must agree on reimbursement by the tenant of not only utility bills, but also taxes:

• transport;
• on property;
• land and others.

The contract for reimbursement of utility costs must also contain compensation for hot and cold water supply, heating, electricity, Internet, telephone and others.

Since the rules of the energy saving agreement specify relations related to the supply of gas, water, heat and other goods through the connected network, even in such cases the lessor cannot be considered a supplying organization. Consequently, all transactions relating to the supply of services that are carried out under a contract are not considered the sale of goods or services. Therefore, they are not subject to tax.

Thus, the landlord is actually assigned the functions of collecting utility payments from the tenant and transferring them to organizations that provide utility services. That is, he acts as an intermediary. In this case, we are not talking about the fact of resale of utilities, but only about compensation for the costs of their payments.

Based on this, we can conclude that the landlord does not have the right to issue an invoice for the amount of consumed utilities. And the tenant, in turn, compensates them taking into account value added tax. In this case, only those amounts of value added tax that are attributable to actually consumed utilities are accepted for deduction.

Reimbursement of expenses based on a mediation agreement

There is a third option for processing compensation for utility bills. It involves the conclusion of an intermediary agreement, according to which the lessor is an intermediary for their acquisition. According to the terms of such an agreement, the landlord represents the interests of the tenant in legal relations with organizations that supply these services.

At the same time, regardless of the type of agreement, the tenant must pay the intermediary a fee for his services. And the intermediary, accordingly, is obliged to calculate value added tax on the amount of the concluded agreement.

Considering the category of the contract, it must fully comply with the requirements for intermediary agreements. They are indicated in Art. 51 and 52 of the Civil Code of the Russian Federation. Thus, it is necessary to indicate in it the obligation of the lessor (who is also a commission agent or agent) to pay for utilities on his own behalf, but at the expense of the tenant.

To correctly draw up such an agreement, taking into account all legal requirements, you will need the professional assistance of a lawyer. To obtain it, contact the Legal Decision Company. We will provide comprehensive advice and competent information support.

Relations between the parties when leasing property are regulated by Chapter 34 of the Civil Code. Under a lease (property lease) agreement, the lessor (lessor) undertakes to provide the lessee (tenant) with property for a fee for temporary possession and use or for temporary use. This definition is given in Article 606 of the Civil Code. At the same time, the tenant is obliged to maintain the property in good condition, as well as bear the costs of maintaining this property, unless otherwise provided by law or the lease agreement (clause 2 of Article 616 of the Civil Code of the Russian Federation). Such expenses, in particular, include utility costs, the amount of which varies from month to month.

At the same time, the amount of rent may be changed by agreement of the parties within the time limits specified in the contract, but, in accordance with paragraph 3 of Article 614 of the Civil Code, no more than once a year. For this reason, in practice, most often, under a lease agreement, the tenant compensates the landlord for a share of the cost of the utilities consumed by him separately from the rent. The landlord directly enters into contracts with organizations that provide utility services. They, in turn, provide the lessor with primary documents for their services on a monthly basis, and also issue invoices. The total cost of utilities is determined by their actual consumption based on bills issued by utility services.

The share of the tenant's expenses compensated by him under the lease agreement can be determined in different ways:

the amount of actually consumed utilities is calculated as a percentage of the occupied rental space of the premises;

the amount of electricity consumed is determined by the readings of individual meters;

energy consumption is determined based on the power of the partners’ equipment and its operating time.

In any case, the calculation method must be fixed in the lease agreement.

Tax accounting

Electricity costs

The question arises about the procedure for carrying out these services for both the landlord and the tenant in tax and accounting.

In this regard, the opinion of the Ministry of Finance of Russia, published in the recently published letter of the Federal Tax Service of Russia dated April 23, 2007 No. ШТ-6-03/340@, on the procedure for applying value added tax in relation to funds transferred by the tenant to the landlord in order to compensate for the landlord’s expenses is interesting. for payment of utilities, communication services, as well as security and cleaning services for rented premises under agreements according to which these expenses are not included in the cost of rental services.

Thus, the letter of the Ministry of Finance of Russia dated 03.03.2006 No. 03-04-15/52 sets out the position on the application of VAT in relation to the amounts transferred by the tenant to the landlord in order to compensate the landlord’s expenses for paying for electricity. It specifically states that the lessor has no reason to classify operations for the supply (supply) of electricity under these contracts as operations for the sale of goods for VAT tax purposes. That's why these transactions are not subject to VAT taxation, invoices for electricity consumed by the tenant are not issued by the landlord.

The Ministry of Finance of Russia bases this statement on subparagraph 1 of paragraph 1 of Article 146 of the Tax Code, from which it follows that the object of taxation with value added tax is transactions involving the sale of goods (work, services), as well as the transfer of property rights on the territory of the Russian Federation.

In addition, it is noted that according to paragraph 1 of Article 539 of the Civil Code, under an energy supply agreement, the energy supplying organization undertakes to supply energy to the subscriber (consumer) through the connected network, and the subscriber undertakes to pay for the received energy, as well as to comply with the regime of its consumption stipulated by the agreement, to ensure the safe operation of those in its management of energy networks and the serviceability of the devices and equipment used by it related to energy consumption. The subscriber in this case is the person on whose balance sheet the energy consuming object is listed.

The lessor is not an energy supplying organization for the tenant, since he himself receives electricity as a subscriber (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 6, 2000 No. 7349/99).

Based on the foregoing, it is noted that the tenant compensates the landlord’s expenses for paying for electricity and does not receive an invoice for the electricity he consumes, therefore he does not have the right to deduct the VAT amounts transferred by him to the landlord as part of the compensation amounts.

But the landlord also faces difficulties in accounting for VAT on utilities. The Ministry of Finance, referring to the provisions of Article 170 of the Tax Code, notes that VAT amounts charged to the buyer when purchasing goods (work, services) in the case of their use for transactions not subject to VAT are not deductible. Consequently, the lessor is not subject to deduction of VAT on electricity charged to him by the energy supply organization in relation to the electricity consumed by the tenant.

...and all other utility bills

In letter dated March 24, 2007 No. 03-07-15/39, the Ministry of Finance of Russia went even further in its reasoning, extending the above point of view on the application of VAT in relation to funds transferred by the tenant to the landlord in order to compensate the landlord’s expenses for payment not only for electricity, but also for all utilities, communication services, as well as security and cleaning services for leased premises under contracts , according to which these expenses are not included in the cost of rental services.

However, a completely different point of view on this issue is expressed by the Federal Tax Service of Russia for the Moscow Region in its letter dated 02/03/2005 No. 21-27/28632 (hereinafter referred to as the letter of the Federal Tax Service for the Moscow Region). It is based on the fact that when determining the tax base for VAT, revenue from the sale of goods (work, services) is determined based on all income of the taxpayer associated with payments for the specified goods (work, services)(clause 2 of article 153 of the Tax Code of the Russian Federation). According to subparagraph 2 of paragraph 1 of Article 162 of the Tax Code, the tax base is increased by amounts received for goods (work, services) sold in the form of financial assistance, to replenish special-purpose funds, to increase income, or otherwise related to payment for goods (work, services) sold ).

From this it is concluded that funds received by the landlord from the tenant in the form of compensation for the cost of utility bills (energy supply, heat supply, water supply, etc.), in the part consumed by tenants, are subject to VAT. Consequently, VAT amounts paid by landlords to utility service providers, including the part consumed by tenants, are deductible from the landlord on the basis of Articles 169, 171, 172 of the Tax Code. The tenant can also deduct VAT on specified expenses (compensated to the landlord) only on the basis of invoices.

However, a later letter from the Federal Tax Service of Russia dated December 29, 2005 No. 03-4-03/2299/28@ “On the procedure for applying the 0 percent VAT rate” states that In this situation, the landlord has no grounds for issuing appropriate invoices, and the tenant has the right to a refund of VAT amounts.

To date, tax authorities refuse to express and comment on their point of view on this issue.

What about expenses?

Also very interesting is the question of including in the expenses taken into account for the purpose of calculating profits the costs of paying the above expenses.

The Ministry of Finance of Russia, in letter dated August 4, 2005 No. 03-03-04/2/41 “On accounting for utility bills when subleasing property,” expressed the following point of view. Referring to subparagraph 10 of paragraph 1 of Article 254 of the Tax Code, he confirmed the tenant’s right to take into account as other expenses expenses associated with the payment of utility bills and (or) communication services related to premises leased. The sublessee may also take into account, as part of other expenses associated with production and sales, the costs of payment of utility and operating expenses incurred by him under the sublease agreement. In this case, the tenant, when receiving rental and utility payments from the subtenant, takes these amounts into account as part of other expenses (clause 4 of Article 250 of the Tax Code of the Russian Federation). Despite the fact that the letter speaks of sublease relations, the opinion reflected in it is also valid for relations arising between the tenant and the landlord.
The opinion of the tax authorities on the issue of calculating profit is set out in the above-mentioned letter from the Federal Tax Service for Moscow Region. It states that if the tenant reimburses the landlord for the costs of maintaining and operating the leased property (utility expenses) provided for in the lease agreement, then these payments are reflected by the lessor as part of non-operating income or income from sales, while for the tenant - as part of non-operating expenses.

If a separate agreement is concluded between the parties to reimburse the above expenses, these payments are taken into account by the lessor as part of the income from sales on the basis of paragraph 2 of Article 249 of the Tax Code. For the lessee, these payments are not recognized as expenses for profit tax purposes.

As for utility bills, these expenses, in accordance with subparagraph 5 of paragraph 1 of Article 254 of the Tax Code, are taken into account as part of the material expenses of the party that has entered into direct contracts with organizations that provide utility services. This is very important, since in this situation the tenant does not have direct contracts with utility services and will not be able to include in expenses the amount of utility bills reimbursed to the landlord.

But in later letters from the Federal Tax Service in Moscow dated July 6, 2005 No. 20-12/47837, as well as dated June 26, 2006 No. 20-12/56637 and dated June 28, 2006 No. 19-11/ 58877 expresses a point of view similar to that of the Ministry of Finance.

These letters indicate that if the lease agreement provides for obligations to pay actually consumed utility costs and expenses for communication services for the tenant, he includes these expenses as part of material and other expenses associated with production and (or) sales. In this case, the condition of validity and documentary confirmation of these expenses with primary documents must be met in accordance with paragraph 1 of Article 252 of the Tax Code. It also provides a list of these documents: the landlord's invoices, compiled on the basis of similar documents issued to the landlord by public utilities, in relation to the actual use of these services by the tenant.

The lessor, in turn, has the right to include as expenses amounts transferred to organizations providing utilities and communication services.

Accounting

All of the above concerns tax accounting. Now let's look at this situation within the framework of accounting using the following example.

How to solve the problem?

To avoid controversial issues in accounting with the tax office, some companies simplify contractual relations when leasing premises. The amount of the cost of rental payments under the contract includes the amount of compensation reimbursed to the lessor for utilities, communication services, as well as security and cleaning services. In this case, the specified amounts are reflected by the lessor as part of non-operating income or income from sales, subject to VAT. The tenant has the right to take them into account as non-operating expenses, and also to deduct VAT amounts on them based on the invoice issued by the lessor.

There is another way to solve this issue. It is also associated with the appropriate execution of contractual relations between the parties to the lease agreement. Its essence is as follows. It must be clear from the lease agreement concluded by the parties that the lessor, when paying for utilities, acts on his own behalf, but at the expense of the tenant. The content and form of the agreement must correspond to intermediary agreements. In particular, a commission agreement defined in Chapter 51 of the Civil Code of the Russian Federation, or an agency agreement in accordance with Chapter 52 of the Civil Code of the Russian Federation. In this case, the landlord re-issues invoices from utility organizations to the tenant, highlighting VAT amounts.

In order to accept the amounts of “input” VAT for deduction, the landlord, acting as an intermediary between the tenant and utilities, must issue invoices on his behalf for the amounts of utility payments. This explanation was given in the letter of the Ministry of Finance of Russia dated November 14, 2006 No. 03-04-09/20.

In addition, in accordance with the provisions of the Civil Code, the landlord is entitled to remuneration for intermediary services. To avoid additional costs on the part of the tenant, the parties can agree to reduce the rent by the amount of the remuneration.

Based on the documents received, the tenant has the right to deduct the VAT amounts paid to the landlord and also reflect them in the purchase book.

Let's look at this situation using an example.

Above the rent

Readers should pay attention to the latest letter of the Russian Ministry of Finance dated June 19, 2007 No. 03-11-04/2/166.

It addresses the situation when, in accordance with the terms of the lease agreement, the cost of communication services by the tenant is paid in addition to the rent. The Russian Ministry of Finance explains that the lessor must take into account the amount of compensation as income received when determining the object of taxation. And payment for telephone services is included in expenses.

Despite the fact that the letter was sent to landlords who are on a simplified taxation system, the conclusions of the Russian Ministry of Finance are based on the articles of Chapter 25 of the Tax Code “Organizational Income Tax.” Namely, Article 249, which affects the concept of income, and Article 259, which regulates expenses.

Therefore, a taxpayer under the general taxation regime must take it into account.

In conditions when an organization leases part of its premises, it (instead of the tenant) makes payments to suppliers of utilities and other services necessary to ensure the activities of the institution. As a rule, the procedure for reimbursement by tenants of part of utility bills is negotiated separately. Read on to learn how the landlord can properly register, take into account the amount of reimbursement for utility bills and what taxes to pay.

Compensation by the tenant for utility bills and fees for communication services can be arranged in one of the following ways:

1. Establish in the lease agreement a rent consisting of a fixed and variable part, which corresponds to the provisions of Art. 614 Civil Code of the Russian Federation. The variable portion of the rent may include payments, the amount of which is based on the expenses incurred by the lessor in connection with the property leased. In this form, the parties to the agreement agree on compensation by the tenant, for example, property tax, land, transport taxes, utility payments for the leased property. The terms of the lease may include compensation for services such as hot and cold water, heating, energy, telephone and Internet charges.

2. Provide for compensation in a separate agreement in excess of the fixed amount of rent established by the lease agreement.

Important to remember

Utility payments may be included in the fixed rent amount. In this case, the lessor makes preliminary calculations of the average monthly cost of utilities, by which monthly rental payments should be increased. The procedure for recording transactions in accounting is identical to the procedure for recording rent from the lessor.

The landlord determines the procedure for calculating utility bills payable by the tenant. Calculation can be carried out:

·based on the readings of separately installed meters;

· in proportion to the space occupied by the tenant;

· proportional to the power of devices installed in rented areas.

The landlord transfers utility fees to service providers, the tenant, in turn, reimburses the landlord for expenses after providing documents confirming the actual cost of utilities and their actual payment.

The procedure for reflecting business transactions for reimbursement of fees for utilities and communication services in the lessor's accounting records is given in the journal.

Operations involving the transfer of electricity, water, and gas from the lessor to the lessee do not relate to operations for the sale of services for VAT purposes, since the lessor himself does not provide (does not produce) services.

Based on paragraph 1 of Art. 539 of the Civil Code of the Russian Federation, the subscriber of the energy supply organization is the lessor with whom the energy supply agreement has been concluded. A similar conclusion is contained in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 8, 1998 No. 5905/98, which states that a subscriber is a person on whose balance sheet an object that consumes energy is listed. In addition, according to the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/06/2000 No. 7349/99, the tenant-provider cannot be the energy supplying organization for the tenant, since as a subscriber he himself receives electricity to supply the building from this organization .

Important to remember

Since the rules of the energy supply agreement apply to relations related to the supply of gas, heat, water and other goods through the connected network, unless otherwise established by law, other legal acts or follows from the essence of the obligation (Article 548 of the Civil Code RF), then in these cases the lessor is not the supplying organization. Therefore, operations for the supply (dispensing) of any utilities performed under a lease agreement are not operations for the sale of goods (works, services) and, as a consequence, are subject to VAT taxation.

Thus, the landlord actually carries out the functions of collecting utility payments from the tenant and transferring them to organizations that provide utility services, i.e., he is an intermediary. This is not about reselling utilities to tenants, but about compensating the landlord for the costs of paying them.

Consequently, the landlord should not issue invoices to the tenant for the amount of utility services consumed by him. The tenant compensates the cost of consumed services, including VAT. When receiving invoices from utility service providers, the lessor can deduct only the amount of VAT that will be attributable to services consumed directly by the lessor for VAT-taxable activities. Similar explanations are given in the letter of the Ministry of Finance of Russia dated March 3, 2006 No. 03-04-15/52.

The procedure for taxing with income tax compensation amounts for utility payments received by the lessor from the lessee is ambiguous.

According to the Russian Ministry of Finance, such amounts should be taken into account as part of non-operating income in accordance with the provisions of Art. 250 of the Tax Code of the Russian Federation (letters from the Ministry of Finance of Russia dated March 24, 2009

No. 03-03-05/47, dated December 27, 2007 No. 03-03-06/4/158). The institution's expenses for paying for utilities, subject to the conditions provided for in Art. 252 of the Tax Code of the Russian Federation are also taken into account for profit taxation purposes.

An analysis of arbitration practice allows us to conclude that the position of the Ministry of Finance of Russia is not indisputable (see Resolution of the FAS of the East Siberian District dated March 21, 2007 No. A74-3165/06-F02-1481/07) .

The Supreme Arbitration Court of the Russian Federation, in its Determination No. 18186/07 dated January 29, 2008, also indicated that the amount of compensation for payment of utility bills received from the tenant is not the income of the lessor. In this case, the costs of maintaining and using the leased premises are compensated, and the costs of paying for utilities associated with the operation of the leased premises are not the owner’s expenses - they do not lead to a decrease in his economic benefits , since they are compensated by the tenant.

According to the author, compensation for utility costs received from the tenant does not lead to an increase in the landlord’s income; accordingly, it is not taken into account when calculating income tax due to the absence of an object of taxation (Article 247 of the Tax Code of the Russian Federation). In this case, payments for utility services transferred by the institution from the personal account to supplying organizations are not taken into account for the purposes of calculating income tax, since they are actually expenses of the tenant.

However, if the institution decides not to include in non-sales income the amount of compensation for utility payments received from tenants, the possibility of disputes with the tax authority cannot be completely excluded.

Landlords, when providing premises for rent, as a rule, provide tenants with the opportunity to use the utilities necessary to ensure normal operating conditions of the premises transferred for temporary use. Such services include heating, water supply, energy supply, telephone services, etc.

In practice, utilities can be provided by the landlord to the tenant under the following conditions:

1. The lease agreement establishes a fixed rental rate, which includes all costs of maintaining the premises being leased. Expenses in the form of payments for heating, water supply, electricity, which the lessor incurs during the period of validity of the lease agreement, are included in the rent rate. The tenant is not provided with any documents confirming the utility costs incurred by the landlord;
2. The lease agreement establishes the rent, which consists of a fixed and variable part. The size of the variable part is determined based on the utilities consumed by the tenant for the corresponding reporting period on the basis of documents from utility providers (invoices, acts) provided to the landlord, in proportion to the area occupied by the tenant (or depending on the volume of services consumed by the tenant, confirmed by meter readings, and tariffs suppliers for utilities). Payment of the variable part of the rent is carried out by the tenant on the basis of the lessor's invoice with the attachment of supporting documents and calculation of the amount of the variable part of the rent;
3. The lease agreement establishes a fixed rent. Additionally, the tenant reimburses the landlord for the costs of maintaining the leased premises based on the landlord’s actual costs for consumed energy resources. In this case, the amounts of such compensation are not included in the rental rate, but are paid by the tenant to the landlord in excess of it. The tenant reimburses the landlord's expenses for utilities related to the leased premises periodically. The basis for reimbursement of expenses is the lessor's invoice with supporting documents attached and calculation of the cost of expenses to be reimbursed by the tenant, which is carried out on the basis of meter readings installed in the leased premises and the tariffs of supplier organizations.

The tax accounting procedure for reimbursable utility costs depends on the specific method of reimbursement established by the terms of the lease agreement.

In the first two options, the amount of compensation for the cost of utilities is an integral part of the rent.

In this case, the amount of rent, including utility costs reimbursed by the tenant, is taken into account for the purpose of calculating income tax as part of other non-operating income on the basis of clause 4 of Art. 250 of the Tax Code of the Russian Federation (if the provision of premises for rent is the main activity of the taxpayer - as part of income from sales on the basis of Article 249 of the Tax Code of the Russian Federation).

Regulatory authorities hold a similar point of view on this issue. Thus, in letter dated March 11, 2012 No. 03-11-11/72, the Ministry of Finance of Russia indicated that the amounts of payments for housing and communal services, which constitute the variable part of the rent, should be taken into account as part of the lessor’s income when determining the tax base for the tax, paid in connection with the application of the simplified taxation system.

Since, by virtue of paragraph 1 of Art. 346 of the Tax Code of the Russian Federation, for the purpose of applying the simplified taxation system, income is determined according to the rules of Art. 249 and 250 of the Tax Code of the Russian Federation, the above position of the financial department is also valid in relation to the general taxation system.

In this case, the lessor has the right to recognize as expenses taken into account for profit tax purposes the cost of utility services, including those consumed by the tenant and paid by him to utility organizations. The tax authorities also agree with this (see, for example, letter of the Federal Tax Service of Russia for Moscow dated June 26, 2006 No. 20-12/56637).

The provision of services for the provision of property for rent is subject to VAT in the generally established manner on the basis of sub-clause. 1 clause 1 art. 146 of the Tax Code of the Russian Federation. This means that amounts of reimbursed utility costs that are part of the rent are also subject to VAT.

Consequently, the lessor has the right to deduct the corresponding amounts of VAT charged to him for utilities consumed by the tenant.

The validity of this conclusion is confirmed by the official position of the Federal Tax Service of Russia, expressed in letter dated February 4, 2010 No. ШС-22-3/86@, according to which if, under the terms of the contract, the rent consists of two parts - constant and variable, which includes the cost of utilities, then the lessor has the right to apply a deduction for utilities consumed by the tenant.

In the third option, the amount of compensation for the cost of utilities is not included in the rent and, in essence, represents a transit payment, which is fully transferred by the lessor to the relevant utility organizations in payment for the services they provide.

Based on Art. 41 of the Tax Code of the Russian Federation, income is recognized as an economic benefit in monetary or in-kind form, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with Chapters 23 “Income Tax on Individuals” and 25 “Tax on Personal Income”. profit of organizations" Tax Code of the Russian Federation.

Clause 1 of Art. 248 of the Tax Code of the Russian Federation establishes that income for profit tax purposes includes:

• income from the sale of goods (works, services) and property rights, determined in accordance with Art. 249 Tax Code of the Russian Federation;
• non-operating income determined in accordance with Art. 250 Tax Code of the Russian Federation.

The lessor does not perform the functions of providing utility services, since it is not a specialized organization that has all the licenses, permits and equipment necessary to carry out such activities.

The amounts of reimbursable utility costs transferred by the tenant are, in fact, transit amounts, since they are received by the lessor only as compensation for the expenses incurred by him to pay for utilities actually consumed by the tenant, and accordingly do not lead to an increase in the economic benefits of the lessor himself.

Thus, for profit tax purposes, amounts of reimbursable utility costs cannot be recognized as sales income.

Reimbursable amounts of utility payments are not part of the rent taken into account as part of non-operating expenses, since under the terms of the lease agreement they are reimbursed to the lessor in excess of the rent. Consequently, on this basis they are also not subject to accounting for profit tax purposes as income of the lessor.

This was directly indicated by the Presidium of the Supreme Arbitration Court of the Russian Federation, noting in paragraph 12 of the Review of the practice of resolving disputes related to rent (approved by information letter dated January 11, 2002 No. 66; hereinafter referred to as the Review) that imposing the costs of paying utility bills on the tenant is not may be considered a form of rent.

In Resolution No. 4926/97 of March 17, 1998, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that costs, as a general rule, reduce revenue from the sale of products (works, services), and do not increase taxable profit. And in the case when such costs are reimbursed by the counterparty, no revenue arises in this part.

In Determination No. 18186/07 of January 29, 2008, the Supreme Arbitration Court of the Russian Federation also noted that the amount of reimbursement for utility bills received from the tenant is not the income of the landlord. In this case, the costs of maintaining and using the leased premises are compensated, and the costs of paying for utilities associated with the operation of the leased premises are not expenses of the owner - they do not lead to a decrease in its economic benefits, since they are compensated by the tenant.

The conclusion about the transit nature of the compensation payments under consideration is also confirmed by the arbitration courts of various federal districts.

In particular, the Federal Antimonopoly Service of the North-Western District in Resolutions dated October 19, 2006 No. A56-24646/2005, dated June 13, 2006 No. A66-7256/2005 noted that an individual entrepreneur who, at the expense of the funds of tenants, direct consumers heat, electricity, etc., paid for services provided by third-party organizations, and lawfully did not include in the tax base the funds he received as reimbursement of actual expenses.

The court indicated that, due to the provisions of Chapter 34 of the Civil Code of the Russian Federation, the imposition on the tenant of the costs of paying for utilities (and similar services) cannot be considered as a form of rent (clause 12 of the Review). Based on the foregoing, the court decided that reimbursement by tenants to the taxpayer of expenses for utility services transferred to utility organizations by the lessor is not the income of the taxpayer-lessor. According to the court, in this case we are talking specifically about payment by tenants for the services of the named organizations, and not about the resale of part of the services by the landlord to the tenant. In addition, as the court found, the taxpayer does not provide services for energy supply and sewerage wastewater collection. Thus, payments received from tenants as compensation are not taxation income, and therefore subject to a single tax.

A similar position is contained in Resolutions of the Federal Antimonopoly Service of the Ural District dated September 4, 2009 No. Ф09-4747/09-С2, FAS Volga-Vyatka District dated April 21, 2008 No. A39-362/2007, FAS North Caucasus District dated February 11, 2008 No. F08-8206/07-3204A, FAS of the East Siberian District dated March 21, 2007 No. A74-3165/06-F02-1481/07 and dated July 14, 2005 No. A33-23362/04-S3- F02-3274/05-S1.

At the same time, in law enforcement practice there is an opposite approach to the issue under consideration, according to which the amounts received by the landlord from tenants as compensation for the cost of utility services consumed by them are recognized as the landlord’s income taken into account for profit tax purposes (see, for example, letters from the Ministry of Finance of Russia from May 30, 2012 No. 03-03-06/4/55, dated September 23, 2009 No. 03-03-05/47 and dated September 5, 2007 No. 03-11-05-215, Resolutions of the Federal Antimonopoly Service of the Central District dated November 19, 2010 in case No. A14-16650/2009/583/24 and FAS Volga District dated October 4, 2007 in case No. A57-9388/06).

This position is based on the fact that compensation for expenses for the maintenance of leased property is not specified in Art. 251 of the Tax Code of the Russian Federation lists income not taken into account for profit tax purposes.

However, the question of the attribution (non-attribution) of certain types of payments received by the taxpayer-lessor to the income taken into account for the purposes of calculating income tax must be decided on the basis of checking such payments not only for their presence (absence) in the established Art. 251 of the Tax Code of the Russian Federation, but also for their compliance with the concept of “income” established by the Tax Code of the Russian Federation.

Moreover, in order to recognize payments received by a taxpayer as part of income taken into account for profit tax purposes, the compliance of such payments with the concept of “income” established by the Tax Code of the Russian Federation is primary. As stated earlier, reimbursed utility costs are transitory in nature and do not bring any economic benefit to the taxpayer-lessor, i.e. are not income within the meaning of the Tax Code of the Russian Federation.

In this regard, the approach under consideration, according to which reimbursement amounts for utility bills are recognized as the income of the lessor, in our opinion, does not comply with the requirements of the Tax Code of the Russian Federation.

The costs of paying for utilities actually consumed by the tenant are not expenses of the lessor, since they are compensated by the tenant and, accordingly, do not lead to a decrease in the economic benefits of the lessor. The specified utility payments relate to the premises leased and are the tenant's expenses. In this case, the landlord acts only as a person through whom utility payments pass in transit from the tenant to the utility services.

The validity of this conclusion is confirmed by the Determination of the Supreme Arbitration Court of the Russian Federation dated January 29, 2008 No. 18186/07, mentioned earlier.

The reasons why reimbursement amounts for utility costs are not recognized as income of the taxpayer-lessor also do not allow VAT to be charged on these amounts, since there is no fact on the part of the lessor that utility services were sold, i.e. there is no object of taxation (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation).

The regulatory authorities also agree with this statement. Thus, in the opinion of the Ministry of Finance of Russia, expressed in letter dated December 31, 2008 No. 03-07-11/392, upon receipt of funds transferred by a sub-subscriber in order to compensate for the subscriber’s expenses for payment of electricity transferred to the sub-subscriber, accepted by the subscriber from the energy supply organization, an object of VAT taxation does not arise, since the sale of electricity received from the energy supply organization is not carried out by the subscriber.

Similar conclusions are contained in letters of the Ministry of Finance of Russia dated December 26, 2008 No. 03-07-05/51, Federal Tax Service of Russia dated February 4, 2010 No. ShS-22-3/86 @, Federal Tax Service of Russia for Moscow dated June 8, 2009 No. 16-15/58069 and dated May 21, 2008 No. 19-11/48675.

Arbitration courts also adhere to this position. In particular, in Resolution No. A56-48203/2007 of July 21, 2009, the Federal Antimonopoly Service of the North-Western District established that the taxpayer-lessor is not and cannot be a provider of utility services, since he himself is a subscriber, and the provision of these services falls under the jurisdiction of specialized supply organizations. Based on the foregoing, the court came to the conclusion that reimbursement of utility bills arising from lease agreements is not implementation in accordance with Art. 39 of the Tax Code of the Russian Federation and is not subject to VAT.

In the Resolution of March 4, 2008 No. A65-8421/2007-SA1-37 of the FAS of the Volga Region with reference to the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 6, 2000 No. 7349/99, according to which the lessor is not an energy supply organization for the tenant, since himself, as a subscriber, receives electricity and gas to supply the building from energy supply organizations, also came to the conclusion that the taxpayer-landlord does not provide the tenant with services for the supply of electricity and gas, but only re-invoices the relevant organizations to the tenant, i.e. is not an energy supply organization and does not provide sales services to the tenant. Accordingly, in this case, the taxpayer-lessor does not have revenue from the sale of goods and does not have VAT taxable items.

Since there is no fact that the landlord has sold utilities to the tenant, the landlord should not issue invoices to the tenant for the amount of utilities consumed by him (see, for example, Determination of the Supreme Arbitration Court of the Russian Federation dated January 29, 2008 No. 18186/07, Resolution of the Federal Antimonopoly Service of the West Siberian District dated January 28, 2009 No. F04-7965/2008(20062-A46-25)).

If the landlord issues an invoice to the tenant for the utilities reimbursed by the latter, then he will nevertheless not have an object of taxation. As the Federal Antimonopoly Service of the North-Western District indicated in Resolution No. A56-30790/2004 of September 5, 2005, issuing invoices in the absence of an object of VAT taxation does not imply the sale of goods.

Thus, since the transfer of electrical and thermal energy, water and gas by the lessor to the tenant is not a sale and, accordingly, is not subject to VAT, the amount of “input” VAT attributable to utilities actually transferred to the tenant and consumed by him cannot be deducted by the lessor .

Based on sub. 1 item 2 art. 170 of the Tax Code of the Russian Federation, the specified amounts of VAT are subject to inclusion by the lessor in the cost of utilities transferred by him to the tenant.

Regulatory authorities also point to this. For example, in letter dated March 3, 2006 No. 03-04-15/52, the Ministry of Finance of Russia, guided by sub. 1 clause 1 art. 146 of the Tax Code of the Russian Federation and Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 7349/99, came to the conclusion that under contracts according to which the cost of renting premises does not include payment for electricity, the lessor is not subject to deduction of the amount of value added tax on electricity presented to him by the energy supply organization, in terms of electricity consumed by the tenant (see also letters of the Federal Tax Service of Russia for Moscow dated May 21, 2008 No. 19-11/48675 and dated July 16, 2007 No. 19-11/067415).

Some arbitration courts take a similar position. For example, the Federal Antimonopoly Service of the North-Western District, in Resolution No. A52-353/2006/2 dated September 12, 2006, recognized as unlawful the deduction of VAT amounts paid by the taxpayer-lessor for utilities actually consumed by tenants.

At the same time, some courts recognize it as legitimate for the taxpayer-lessor to deduct VAT amounts on utilities consumed by the tenant, since the lessor's expenses for utilities are associated with the use of his property for the purpose of making a profit, i.e. to carry out transactions subject to VAT, without making any distinction depending on whether utility costs are a variable part of the rent or are allocated as a separate payment (see, for example, Resolution of the Federal Antimonopoly Service of the Ural District dated March 26, 2012 No. F09-723 /12, Federal Antimonopoly Service of the Volga-Vyatka District dated November 23, 2009 No. A17-7511/2008).

However, in our opinion, this approach does not take into account the actual essence of the transactions performed by the taxpayer-lessor for the purchase of utilities from sales organizations and their subsequent transfer to tenants, which is not recognized as a sale that is subject to VAT. Moreover, in the considered option, unlike the first two, the amount of reimbursement for utilities is not an integral part of the rent subject to taxation.