Tax accounting when receiving property free of charge. Income in the form of gratuitously received property (work, services), property rights

The norms of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation) provides for the drawing up of both paid and gratuitous contracts. If, according to the contract, a party must receive payment or other consideration for the performance of its duties, then in accordance with paragraph 1 of Art. 423 of the Civil Code of the Russian Federation, the contract is compensated.

The contract is considered gratuitous whereby one party agrees to provide something to the other party without receiving payment or other consideration from her, which follows from paragraph 2 of Art. 423 Civil Code of the Russian Federation.

An agreement is assumed to be for compensation unless otherwise follows from the law, other legal acts, content or essence of the agreement.

Since clause 10 of the Accounting Regulations “Accounting for Fixed Assets” PBU 6/01”, approved by Order of the Ministry of Finance of Russia dated March 30, 2001 N 26n, provides, in particular, the possibility receipt by an organization of fixed assets under a gift agreement(free of charge), consider the main provisions of the gift agreement established by Chapter. 32 “Donation” of the Civil Code of the Russian Federation.

Under a gift agreement, one party (donor) in accordance with Art. 572 of the Civil Code of the Russian Federation gratuitously transfers or undertakes to transfer to another party (the donee) a thing in ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party. If there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation.

A donation accompanied by the transfer of a gift to the donee, on the basis of clause 1 of Art. 574 of the Civil Code of the Russian Federation can be committed orally. But if the donor is a legal entity and the value of the gift exceeds three thousand rubles, the agreement of donation of movable property on the basis of clause 2 of Art. 574 of the Civil Code of the Russian Federation must be made in writing. A real estate donation agreement is subject to state registration.

We should not forget that in accordance with paragraph 1 of Art. 575 of the Civil Code of the Russian Federation, donations are not allowed in relations between commercial organizations. The exception is ordinary gifts, the cost of which does not exceed three thousand rubles.

Accounting

Initial cost of the fixed asset received by an organization under a gift agreement (free of charge), on the basis of clause 10 of PBU 6/01 its current market value is recognized on the date of acceptance for accounting as investments in non-current assets.

Received under a donation agreement (free of charge) is determined in relation to the procedure given in clause 8 of PBU 6/01, that is, the initial cost will include the amounts paid for its delivery and bringing it into a condition suitable for use, as well as other amounts. This procedure is established by clause 12 of PBU 6/01.

As you know, accounting of income and expenses of organizations for the purpose of accounting carried out in accordance with the rules established by:

Accounting Regulations “Income of the Organization” PBU 9/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n (hereinafter referred to as PBU 9/99);

Accounting Regulations “Organization Expenses” PBU 10/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 33n.

Assets received by an organization free of charge, including under a gift agreement, on the basis of clause 7 of PBU 9/99 are other income. The market value of a fixed asset received free of charge is determined on the basis of prices for this type of fixed asset in effect on the date of acceptance for accounting. Data on prices valid on the date of acceptance of the fixed asset for accounting must be confirmed by documents or through an examination, which is established by clause 10.3 of PBU 9/99.

Market value of a fixed asset received free of charge, according to the Chart of Accounts for financial accounting economic activity organizations and Instructions for its application, approved by Order of the Ministry of Finance of Russia dated October 31, 2000 N 94n (hereinafter referred to as the Chart of Accounts), is reflected in the credit of account 98 “Deferred income”, subaccount 98-2 “Gratuitous receipts” and the debit of the account 08 “Investments in non-current assets”, subaccount 08-4 “Acquisition of individual fixed assets”.

The cost of fixed assets is repaid by calculating depreciation. As other income is recognized, in our case, as depreciation is calculated on a gratuitously received fixed asset, an entry must be made in the organization's accounting records to debit account 98 "Deferred income", subaccount 98-2 "Gratuitous receipts" and credit account 91 " Other income and expenses", subaccount 91-1 "Other income".

Methods for calculating depreciation that an organization can use in accounting are established in clause 18 of PBU 6/01. Of the four proposed methods, the organization chooses one and fixes its use in the order for accounting policy.

To summarize information about depreciation accumulated during the operation of fixed assets, the Chart of Accounts uses account 02 “Depreciation of fixed assets.” Depreciation amounts are reflected on the credit of account 02 in correspondence with the debit of the production cost (selling expenses) accounts.

Example . The organization, free of charge, under a gift agreement concluded with an individual, received an object of fixed assets, the market value of which is 62,000 rubles.

When an object is accepted for accounting, the useful life in accounting and tax accounting is set to the same and equal to 3 years. To calculate depreciation, the linear method is used, which is fixed by order on the accounting policy of the organization.

The operation of receiving a fixed asset free of charge in the organization’s accounting will be reflected as follows:

Debit 08-4 “Purchase of fixed assets” Credit 98-2 “Gratuitous receipts”

62,000 - taken into account as part of investments in non-current assets, an object of fixed assets received free of charge;

Debit 01 "Fixed assets" Credit 08-4 "Purchase of fixed assets"

62,000 - the fixed asset received free of charge was put into operation;

Debit 20 "Main production" Credit 02 "Depreciation of fixed assets"

1722.22 - depreciation was accrued on a fixed asset received free of charge (monthly until the cost is completely written off);

Debit 98-2 “Gratuitous receipts” Credit 91-1 “Other income”

1722.22 - part of the cost of the fixed asset is reflected in other income of the organization (monthly as depreciation is calculated).

Income tax

For profit tax purposes according to paragraph 2 of Art. 248 Tax Code Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation) property is considered received free of charge, if receipt of this property not related to the recipient's obligation to transfer property(property rights) to the transferor (perform work for the transferor, provide services to the transferor).

In accordance with paragraph 1 of Art. 257 Tax Code of the Russian Federation initial cost a fixed asset is defined as the amount of expenses for its acquisition(and if the fixed asset was received by the taxpayer free of charge - as the amount at which such property is valued in accordance with clause 8 of Article 250 of the Tax Code of the Russian Federation), construction, production, delivery and bringing it to a state in which it is suitable for use, for excluding value added tax and excise taxes, except for cases provided for by the Tax Code of the Russian Federation.

Income in the form of property received free of charge in accordance with paragraph 8 of Art. 250 Tax Code of the Russian Federation included by the receiving party in non-operating income. The exception is the cases specified in Art. 251 Tax Code of the Russian Federation.

When receiving property free of charge, income is assessed based on market prices, determined taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation, but not lower than that determined in accordance with Chapter. 25 Tax Code of the Russian Federation residual value- for depreciable property and not less than production (purchase) costs - for other property. Information on prices must be confirmed by the taxpayer - the recipient of the property, documented or through an independent assessment.

When determining and recognizing the market price of a product, official sources of information on market prices and stock exchange quotations are used, which follows from clause 11 of Art. 40 Tax Code of the Russian Federation.

Market valuation can be made in accordance with Federal law dated July 29, 1998 N 135-FZ “On valuation activities in the Russian Federation”. If there is no appraiser's conclusion on the value of the property received free of charge, the taxpayer must independently calculate the value of the property, confirm the correctness of determining this value and have documents confirming the prices he has calculated.

Sources of information about market prices can be:

Official information on stock exchange quotes;

Information government agencies statistics;

Information from pricing regulatory authorities;

Information about market prices published in the media.

To recognize income and expenses, organizations can use the cash method (if the necessary conditions are met) and the accrual method.

The date of receipt of non-operating income using the accrual method according to paragraphs. 1 clause 4 art. 271 of the Tax Code of the Russian Federation recognizes the date of signing by the parties of the acceptance certificate, which confirms the gratuitous receipt of the fixed asset. Thus, non-operating income for profit tax purposes will be recognized as a lump sum upon receipt of this income.

When an organization uses the cash method, the date of receipt of income is the day of receipt of funds into bank accounts and (or) cash desk, receipt of other property (work, services).

In other words, both under the accrual method and under the cash method, the date of recognition of income in the form of property received free of charge is determined almost identically.

There are often cases when organizations receive property free of charge from persons who are the owners of the organization, its founders, and the transferred property is not a contribution to the authorized capital and is not associated with its increase. The received property is used to replenish working capital and for other purposes related to the activities of the organization.

If an item of fixed assets was received by the organization from the founders, you should pay attention to Art. 251 of the Tax Code of the Russian Federation, which determines the composition of income not taken into account when determining the tax base for income tax.

According to paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, when determining the tax base, income in the form of property received by a Russian organization free of charge is not taken into account:

From an organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of the transferring organization;

From an organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50 percent of the contribution (share) of the receiving organization;

From an individual, if the authorized (share) capital (fund) of the receiving party consists of more than 50 percent of the contribution (share) of this individual.

Received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the specified property is not transferred to third parties.

Letter of the Ministry of Finance of Russia dated March 24, 2009 N 03-03-06/1/185 draws attention to the fact that there are no other provisions in relation to property received free of charge from an organization if the authorized capital of the receiving party is more than 50 percent from the contribution (share) of the transferring organization, in addition to paragraphs. 11 clause 1 art. 251 Tax Code of the Russian Federation, ch. 25 of the Tax Code of the Russian Federation is not provided for. According to the Russian Ministry of Finance, contained in Letter No. 03-03-06/1/283 dated April 28, 2009, fixed assets transferred by the founder of the organization are accepted for tax accounting as depreciable property at market value. Depreciation on such property is calculated in accordance with the provisions of the Tax Code of the Russian Federation.

Organizations often act as a party to gratuitous transactions, for example, they take for use property belonging to employees, or receive interest-free loans from the founder or general director. How do such transactions affect the calculation of income tax?

By general rule Giving in relations between commercial organizations is prohibited, with the exception of ordinary gifts, the value of which does not exceed 3,000 rubles. (Subclause 4, Clause 1, Article 575 of the Civil Code of the Russian Federation). However, tax legislation allows for the possibility of transferring assets or property rights between companies free of charge.

From a tax point of view, the gratuitous receipt by an organization of property, work, services or property rights means that it has received income subject to income tax. Its amount is included in non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). However, as practice shows, in some situations the recipient organization does not generate non-operating income.

Interest-free loan

Chapter 25 of the Tax Code of the Russian Federation does not provide for such an object of taxation as material benefits from savings on interest on borrowed funds. Consequently, if an organization receives an interest-free loan, it does not generate non-operating income in the form of material benefits from savings on interest. The Russian Ministry of Finance and the tax authorities share the same opinion (letters of the Russian Ministry of Finance dated 04/02/10 No. 03-03-06/1/224, dated 05/20/09 No. 03-03-06/1/334, dated 03/17/09 No. 03-03-06/1/153 and dated 02.04.08 No. 03-03-06/1/245, Federal Tax Service of Russia for Moscow dated 21.12.11 No. 16-15/123400@ and dated 27.09.11 No. 16- 15/093520@).

True, both the financial department and the tax authorities admit that the borrowing organization still receives material benefits from using an interest-free loan. But this benefit, in their opinion, does not increase the income tax base.

The courts also come to the conclusion that the borrower company, when receiving an interest-free loan, does not have non-operating income, since such a loan is not a service received free of charge (Resolution of the Federal Antimonopoly Service of Moscow dated April 30, 2009 No. KA-A40/3318-09 and North-Western dated 18.10 .07 No. A56-4688/2007 districts). In addition, the Presidium of the Supreme Arbitration Court of the Russian Federation noted that funds received by an organization under a loan agreement on the terms of repayment of the same amount cannot, in principle, be considered as received free of charge (Resolution dated August 3, 2004 No. 3009/04).

Donated property

Funds accepted under a gift agreement are property received free of charge and, therefore, are recognized as non-operating income of the donee organization (clause 8 of Article 250 of the Tax Code of the Russian Federation). The majority of courts come to similar conclusions (resolutions of the Federal Antimonopoly Service of the Northwestern District dated April 17, 2006 No. A66-2962/2005 and the East Siberian District dated September 7, 2005 No. A33-29714/04-S3-F02-4344/05-S1).

However, in some cases, funds received as a gift are exempt from income tax. The fact is that when determining the base for this tax, income in the form of property received free of charge by a Russian organization from the following persons is not taken into account (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation):

— an organization or an individual, if the authorized capital of the receiving party consists of more than 50% of the contribution of the transferring organization or this individual;
- organizations, if the authorized capital of the transferring party consists of more than 50% of the contribution of the receiving company.

In this case, property is understood as both cash and other property that has a material embodiment - means of production or tools of labor. However, if we are talking about transfer Money, and other assets, one more condition must be met. Within one year from the date of its gratuitous receipt, such property should not be transferred to third parties (paragraph 5, subparagraph 11, paragraph 1, article 251 of the Tax Code of the Russian Federation).

Thus, if the founder or participant Russian organization, whose contribution to its authorized capital is more than 50%, provided it with free monetary assistance; this money is not non-operating income of the company and is not taken into account when calculating income tax. The Russian Ministry of Finance explained that the recipient of funds has the right, until the expiration of one year from the date of receipt, to use such funds in business activities and not include them in the income tax base. After all, the requirement that in order to exempt property received free of charge from income tax, it must not be transferred to third parties within one year does not apply to funds (letter of the Ministry of Finance of Russia dated April 19, 2006 No. 03-03-04/1/360) .

In addition, the Tax Code of the Russian Federation does not contain a requirement that such funds, on the contrary, must be transferred to third parties within one year from the date of their receipt, for example, spent on the acquisition of any production assets or payment of current expenses. The Russian Ministry of Finance emphasized that funds received free of charge are not recognized as income of the receiving organization, regardless of whether they are transferred to third parties within one year from the date of their receipt or not (clause 2 of letter dated December 28, 2006 No. 03-03-04/4 /194). The courts also agree with this (resolution of the Federal Antimonopoly Service of the West Siberian District dated September 20, 2006 No. F04-4213/2006(24086-A27-35)).

These rules also apply in cases where the party giving the gift is not a resident of the Russian Federation. For example, funds transferred free of charge to a Russian organization by its sole shareholder - a foreign company that owns 100% of the shares in the authorized capital of the recipient (letter of the Federal Tax Service of Russia for Moscow dated March 22, 2006 No. 20-12/) are not included in the income tax base. 22187).

However, if it is proven that receiving money from a participant does not pursue a business purpose and represents only the implementation of a tax scheme, then the recipient will have to recognize it as taxable income (resolution of the Federal Antimonopoly Service of the West Siberian District dated December 20, 2006 No. F04-8430/2006(29443-A75 -35) and dated 08/21/06 No. F04-5186/2006(25476-A75-33)). This can be avoided if you formalize the transaction as a transfer of property in order to increase net assets.

Attention!
Starting from the end of 2010, income in the form of property, property or non-property rights in the amount of their monetary value, which was transferred to a business company or partnership by its shareholders or participants to increase net assets, is not taken into account for tax purposes (subclause 3.4, clause 1, art. 251 of the Tax Code of the Russian Federation). Thus, if the gratuitous receipt of money or property from a participant in a legal entity is formalized as a transfer in order to increase net assets, the recipient organization will definitely not have to pay income tax on the amounts received.

Moreover, the specified tax exemption does not depend on the size of the participant’s share or the number of shares owned by him (letters of the Ministry of Finance of Russia dated 04.20.11 No. 03-03-06/1/257 and dated 03.21.11 No. 03-03-06/1/160, Federal Tax Service of Russia dated May 23, 2011 No. AS-4-3/8157@). Even if the recipient of the asset subsequently sells it or transfers it to third parties, he will still not lose the right to the benefit (letter of the Ministry of Finance of Russia dated April 18, 2011 No. 03-03-06/1/243)

Illegally received dividends

According to the Russian Ministry of Finance, payments to shareholders or members of business companies made in violation of the requirements of the legislation of the Russian Federation cannot be considered dividends. For tax purposes, they should be considered as property received free of charge and, therefore, included in non-operating income on the basis of paragraph 8 of Article 250 of the Tax Code of the Russian Federation (letter dated October 14, 2005 No. 03-03-04/1/276).

The financial department also noted that in such circumstances, the provisions of Article 275 of the Tax Code of the Russian Federation, which provide for preferential taxation of income in the form of dividends, do not apply. It was not possible to find later clarifications from the Russian Ministry of Finance and arbitration practice on this issue.

Free use

Often the founder or CEO transfers to the company for free use premises, cars, computers or other property. The Russian Ministry of Finance has repeatedly indicated that gratuitous use should be considered as the gratuitous receipt of property rights. Indeed, in this case, the organization receives the right to use someone else’s property (letters dated 05.12.12 No. 03-03-06/1/243, dated 04.19.10 No. 03-03-06/4/43, dated 12.11.09 No. 03-03 -06/1/804 and dated 02/04/08 No. 03-03-06/1/77). Similar explanations are contained in letters from the Federal Tax Service of Russia for Moscow dated 01/09/08 No. 18-11/000184@ and dated 08/20/07 No. 20-05/078880.1.

Consequently, the company must somehow evaluate the income received from this and include its amount in non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). The problem is how to do it. The Ministry of Finance of Russia proposes that when assessing the amount of income, we should proceed from market prices for the rental of identical property (letters dated 05.12.12 No. 03-03-06/1/243, dated 04.19.10 No. 03-03-06/4/43, dated 11.12. 09 No. 03-03-06/1/804 and dated 10/16/09 No. 03-03-06/1/667). The Presidium of the Supreme Arbitration Court of the Russian Federation shares the same opinion (clause 2 of the appendix to the information letter dated December 22, 2005 No. 98).

Most courts also believe that when renting premises, a car or other property free of charge, the organization receives non-operating income (decrees of the Federal Antimonopoly Service of the Central Federal Antimonopoly Service dated 06/04/10 No. A23-4776/09A-14-173DSP, East Siberian Federal Antimonopoly Service dated 03/31/09 No. A33-4100/ 08-Ф02-1119/09, Volga-Vyatka district dated 06/05/07 No. A39-3251/2006 and Northwestern district dated 03/07/06 No. A56-42032/04).

At the same time, there are examples of court decisions in which the arbitrators considered that taxable income does not arise in such a situation (resolutions of the Federal Antimonopoly Service of the Volga Region dated March 6, 2007 No. A65-13556/2006 and dated February 17, 2005 No. A65-11335/2004-CA1- 32). After all, a company that has received property for free use is obliged to subsequently return it to the lender. This means that the transfer of property under such conditions cannot be considered as a gratuitous receipt of rental services and should not increase the income tax base.

However, previously the Russian Ministry of Finance agreed that property received for temporary use under a paid agreement, for example a work contract, is not considered received free of charge for profit tax purposes (letter dated January 14, 2008 No. 03-03-06/1/4).

Attention!
An organization does not generate tax income if its employees use their personal property for work.

Tax officials believe that the use by employees of personal mobile phones or other property for production purposes leads to the formation of taxable income for the organization (letter of the Federal Tax Service of Russia for Moscow dated June 30, 2008 No. 20-12/061156). In their opinion, the employer in this case rents the employee’s property free of charge (Clause 8 of Article 250 of the Tax Code of the Russian Federation). Therefore, based on market prices for the rental of similar assets, he needs to estimate the income from the gratuitous use of the employee’s property and take it into account when calculating income tax (letters of the Ministry of Finance of Russia dated May 12, 2012 No. 03-03-06/1/243 and dated April 19. 10 No. 03-03-06/4/43).

However, we cannot agree with this. After all, an agreement for gratuitous use assumes that during its execution the subject of the agreement is transferred from the lender to the borrower, and then it is transferred back (clause 1 of Article 689 of the Civil Code of the Russian Federation). But if employees use, for example, their Cell phones not only for personal conversations, but also for official negotiations, the transfer of the phone itself does not occur. The owner of the telephone continues to use it, not the organization.

Consequently, the company itself does not receive any property from the employee and cannot dispose of it. Therefore, the provisions of paragraph 8 of Article 250 of the Tax Code of the Russian Federation are not applicable in this situation. This means that the organization does not have non-operating income in the form of free receipt of the right to use the personal property of employees

Free transfer within the organization

Let’s say a company transferred a car, furniture or other property belonging to it free of charge to its separate division located in another region. Or such transfer occurs between separate divisions without the participation of the parent organization. In these cases, the receiving party does not have non-operating income, since there is no transfer of ownership of the transferred property.

For separate division who accepted this property, it is not received free of charge and therefore does not entail tax consequences. This conclusion confirmed by letter of the Ministry of Finance of Russia dated June 20, 2006 No. 03-03-04/1/528.

Bonus product at zero price

To increase sales volumes, many suppliers include in contracts a condition that for fulfilling certain requirements, for example, for achieving an agreed volume of purchases for a specific period, the buyer is additionally given a bonus in the form of a sum of money or goods at a zero price.

The Russian Ministry of Finance and tax authorities indicate that when such a bonus is transferred, the purchasing organization generates non-operating income. After all, in fact, she receives it free of charge, without charging her any fees (letters from the Ministry of Finance of Russia dated 05/07/10 No. 03-03-06/1/316 and dated 01/19/06 No. 03-03-04/1/44, Federal Tax Service Russia in Moscow dated April 29, 2008 No. 20-12/041762.1).

To generate non-operating income, the organization will have to evaluate the market price of the bonus product (Clause 8 of Article 250 of the Tax Code of the Russian Federation). However, if it subsequently decides to resell this product, then, in the opinion of the Russian Ministry of Finance, the company will not be able to include the cost at which it was recognized in non-operating income as expenses (letter dated January 19, 2006 No. 03-03-04/1/44) . At the same time, the financial department refers to the fact that a decrease in income from sales is provided only for purchased goods, and for the cost of their acquisition (subclause 3, clause 1, article 268 of the Tax Code of the Russian Federation). Since the bonus item was received at a zero price, there is no reason to include it market value in sales expenses.

The courts have a different opinion. The arbitrators note that regardless of how the parties determined the incentive system, the additional remuneration (bonus) provided by the seller to the buyer for fulfilling the terms of the transaction cannot be considered as remuneration for services rendered, that is, it is not income (resolution of the FAS Povolzhsky dated 04.23.10 No. A72-15093/2009 and West Siberian district No. A27-8497/2009 dated December 30, 2009).

Deposit remaining with the organization

In principle, property received in the form of a pledge or a deposit as security for the fulfillment of obligations is not taken into account for tax purposes (subclause 2, clause 1, article 251 of the Tax Code of the Russian Federation). The situation changes if the deposit remains with the organization that received it due to the failure of its counterparty to fulfill the agreed terms of the contract (Clause 2 of Article 381 of the Civil Code of the Russian Federation).

The Ministry of Finance of Russia equates leaving a deposit in accordance with the norms of the Civil Code to receiving property free of charge (letters dated January 18, 2008 No. 03-03-06/1/12 and dated September 8, 2005 No. 03-03-04/2/56). Therefore, it requires that its amount be included in non-operating income on the basis of paragraph 8 of Article 250 of the Tax Code of the Russian Federation.

Even if we consider the deposit as a penalty, the company that retains it must still take the amount of the deposit into account when calculating income taxes. True, with this interpretation, it will include it in non-operating income on the basis of another norm - paragraph 3 of Article 250 of the Tax Code of the Russian Federation. It turns out that no matter how you interpret the deposit remaining with the organization, its amount still increases the income tax base.

Unreturned remnants of customer-supplied raw materials

The Tax Code does not specify whether an organization engaged in the processing of customer-supplied raw materials will have taxable income if for some reason it did not return the remainder of such raw materials to the customer (supplier) or retained part of the processed products for itself, although under the terms of the contract it was obliged to transfer them to the customer. The Russian Ministry of Finance has also not yet spoken out on this issue.

IN judicial practice the prevailing point of view is that the processor in such a situation receives the property free of charge (resolutions of the Federal Antimonopoly Service of the Moscow District dated January 27, 2006 No. KA-A40/9756-05-D4 and dated November 11, 2005 No. KA-A40/9756-05). Consequently, the cost of the remaining raw materials or processed products that are not returned to the supplier is recognized as non-operating income of the processor.

The amount of such income is determined based on market prices, taking into account the provisions of Article 105.3 of the Tax Code of the Russian Federation. In relation to unreturned raw materials supplied by the supplier, the amount of income cannot be lower than the cost at which the processor received these raw materials from the supplier, and in relation to processed products - not lower than the actual costs of their production (Clause 8 of Article 250 of the Tax Code of the Russian Federation).

Increase in office space after reconstruction

The courts believe that the reconstruction of a premises, for example an office or a warehouse, as a result of which its total area has increased, should be regarded as the gratuitous receipt of property (Resolution of the Federal Antimonopoly Service of the North Caucasus District dated May 10, 2006 No. F08-1606/2006-726A). The company must include the cost of the added part of the premises in non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation).

Transfer of rights to land under the building

Organizations often own residential premises in apartment buildings. For example, a company purchased an apartment on secondary market and provides it for accommodation to a highly qualified foreign specialist or a valuable employee invited from another region.

When purchasing an apartment, the buyer does not pay separately for the land plot located under residential building. Nevertheless, an additional share in ownership of the common property, including the land for apartment building(Clause 2 and 5 of Article 16 of the Federal Law of December 29, 2004 No. 189-FZ).

It would seem that since the share in the ownership of a land plot is transferred to the organization free of charge, it receives non-operating income in the form of receiving property free of charge. However, the Russian Ministry of Finance explained that in this situation there is no gratuitous transfer. After all, a share in the ownership of common property is an integral part of the ownership of premises in a residential building. In fact, the person buying the apartment simultaneously acquires a share in the common ownership of the land. Therefore, land rights cannot be considered received free of charge (letter dated May 25, 2006 No. 03-03-04/1/476)

A. Kapkaev,
Head of the Tax Disputes and Tax Planning Department of Legal Service LLC

An organization transfers fixed assets free of charge to another organization. It is not interdependent with respect to the host organization. The cost of the transferred property is more than 100,000 rubles. The organization receiving the property applies common system taxation.
Can one legal entity transfer to another legal entity fixed assets free of charge? How should this be formatted? Is depreciation calculated and included in expenses when calculating income tax?

Having considered the issue, we came to the following conclusion:
The norms of civil legislation indicate the prohibition of donating property in relations between commercial organizations, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles.
For profit tax purposes, the organization will have to recognize non-operating income based on the market value of the property received. Other income will need to be recognized in accounting.
The initial cost of fixed assets received free of charge in both accounting and tax accounting is repaid through depreciation.

Rationale for the conclusion:
In accordance with the Civil Code of the Russian Federation, a gratuitous agreement is recognized as an agreement under which one party undertakes to provide something to the other party without receiving payment or other counter-provision from it.
In the situation under consideration, one organization plans to transfer fixed assets to another organization free of charge, which, in essence, is a donation.
Thus, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party .
If there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation (Civil Code of the Russian Federation).
The requirements for the form of the gift agreement are established by the Civil Code of the Russian Federation.
In accordance with the Civil Code of the Russian Federation, a donation agreement for movable property must be made in writing in the case where the donor is a legal entity and the value of the gift exceeds three thousand rubles.
The Civil Code of the Russian Federation does not establish any specific features for a real estate gift agreement. Moreover, since the donation of real estate involves the transfer of ownership of this property to the donee, which is subject to state registration, the real estate donation agreement is always concluded in writing (Civil Code of the Russian Federation, Part 6, Article 1, Clause 2, Part 4, Art. 18, part , Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate”).
Thus, a donation agreement for both movable and immovable property must be concluded in writing.
By virtue of the Civil Code of the Russian Federation, donations are not allowed, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles, in relations between commercial organizations. When resolving property disputes in court, an agreement concluded in violation of the Civil Code of the Russian Federation may be declared invalid (FAS of the Ural District dated November 9, 2012 N F09-11413/12, FAS Central District dated 10/15/2004 N).
At the same time, it is necessary to take into account that, according to the Tax Code of the Russian Federation, the Civil Code of the Russian Federation, civil legislation, as a general rule, does not apply to tax relations, and civil legal relations, in turn, are not regulated by tax legislation. Accordingly, the payment of certain taxes is determined by tax law, but within the framework of the relationship between the parties to the agreement (contract), civil law should be followed.
Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 24, 2016 No. 7 “On the application by courts of certain provisions of the Russian Federation on liability for violation of obligations” explains that in cases where a dispute resolved by the court arises from tax or other financial and administrative legal relations, civil law can be applied to the named legal relations, provided that this is provided for by law (Civil Code of the Russian Federation).
The courts firmly adhere to the position that violation of civil legislation affects taxation only in cases specifically provided for by law. If a tax rule does not stipulate the application of the rule contained in it for compliance with civil law, this rule should be applied regardless of whether the rules of civil law are complied with or not (see Fourth Arbitration Court of Appeal dated 05/06/2016 N 04AP-1842/16, dated 05/08. 2013 N, Fifth Arbitration Court of Appeal dated 09/08/2014 N, Tenth Arbitration Court of Appeal dated 21/11/2012 N 10AP-7889/12).

Income tax

According to the Tax Code of the Russian Federation, the obligation to pay a tax or fee arises, changes and terminates if there are grounds established by the Tax Code of the Russian Federation or another act of legislation on taxes and fees.
The Tax Code of the Russian Federation provides for norms for gratuitous transactions between legal entities.
In accordance with the Tax Code of the Russian Federation, for the purposes of taxing the profits of organizations, property (work, services) or property rights are considered to be received free of charge if the receipt of this property (work, services) or property rights is not associated with the occurrence of an obligation on the recipient to transfer the property (property rights) to the transferor (perform work for the transferor, provide services to the transferor).
and the Tax Code of the Russian Federation established that the cost of fixed assets received free of charge is taken into account in full as part of non-operating income at the time of actual receipt of the property on the date the parties sign the transfer and acceptance certificate.
The initial cost of such property for profit tax purposes is determined as the amount at which such property is valued in accordance with the Tax Code of the Russian Federation (TC RF). That is, an asset is accepted for tax accounting at market value, determined taking into account the provisions of the Tax Code of the Russian Federation (but not lower than the residual value according to the data tax accounting donor) taking into account the costs of delivery and bringing to a state in which the fixed asset object is suitable for use (Tax Code of the Russian Federation, Ministry of Finance of Russia dated November 19, 2012 N 03-01-18/9-173, dated September 21, 2012 N).
In accordance with the Tax Code of the Russian Federation, prices used in transactions in which parties are persons who are not recognized as interdependent, as well as income (profit, revenue) received by persons who are parties to such transactions are recognized as market prices. Information on prices is confirmed by the recipient of the property (work, services) documented or through an independent assessment (Tax Code of the Russian Federation).
For fixed assets received free of charge, the taxpayer has the right to charge depreciation provided that such objects meet the criteria established in the Tax Code of the Russian Federation (see also the Ministry of Finance of Russia dated July 27, 2012 N 03-07-11/197).
Let us recall that for tax purposes, depreciable property is property that is owned by the taxpayer, is used by him to generate income, and the cost of which is repaid by calculating depreciation. Depreciable property is property with a useful life of more than 12 months and an original cost of more than 100,000 rubles (Tax Code of the Russian Federation).
The calculation of depreciation for depreciable property objects, including fixed assets, the rights to which are subject to state registration in accordance with the legislation of the Russian Federation, begins on the 1st day of the month following the month in which this object was put into operation, regardless of the date its state registration (Tax Code of the Russian Federation).
The useful life of fixed assets received free of charge is determined by the taxpayer independently on the date of commissioning of this depreciable property in accordance with the provisions of the Tax Code of the Russian Federation and taking into account the Classification of fixed assets approved by the Government of the Russian Federation dated January 1, 2002 No. 1 (Tax Code of the Russian Federation).
It must be taken into account that when free receipt depreciable property, the donee does not have the right to include a depreciation premium in the expenses of the reporting (tax) period, which is directly established by the Tax Code of the Russian Federation.
An organization that acquires used OS objects for the purpose of using linear method depreciation charges for these objects have the right to determine the depreciation rate for this property, taking into account the useful life, reduced by the number of years (months) of operation of this property by the previous owners. In this case, the useful life of these fixed assets can be defined as their useful life established by the previous owner of these fixed assets, reduced by the number of years (months) of operation of this property by the previous owner (Tax Code of the Russian Federation).
Consequently, the norms of the Tax Code of the Russian Federation provide the taxpayer with the right to independently determine which procedure for determining the useful life of used property to apply:
1) based on the useful life established taking into account the Classification (Tax Code of the Russian Federation);
2) based on the useful life established taking into account the Classification, reduced by the number of years (months) of operation of this property by the previous owner (first sentence of the Tax Code of the Russian Federation);
3) based on the useful life established by the previous owner, reduced by the period of actual use by the previous owner (second sentence of the Tax Code of the Russian Federation).
The option used is fixed in the accounting policy for tax purposes.
If the period of actual use of this OS by the previous owners turns out to be equal to the period of its useful use, determined by the Classification, or exceeds this period, the taxpayer has the right to independently determine the useful life of this OS, taking into account safety requirements and other factors (Tax Code of the Russian Federation, Ministry of Finance of Russia dated 01.12 .2014 N 03-03-06/1/61194, dated 05/21/2013 N, dated 11/29/2012 N).
It is necessary to take into account that, by virtue of the Tax Code of the Russian Federation, used depreciable property objects acquired by an organization (in this case, received free of charge) are included in the depreciation group (subgroup) in which they were included from the previous owner (Ministry of Finance of Russia dated June 27, 2016 N 03-03-06/1/37148).
At the same time, the taxpayer does not have the right to choose any other depreciation group for a used fixed asset. Changing the depreciation group is contrary to the Tax Code of the Russian Federation (UFTS of Russia for Moscow dated April 26, 2010 N 16-15/043777@).
In a situation where the previous owner erroneously determined the depreciation group (subgroup), the taxpayer takes into account used fixed assets as part of the depreciation group (subgroup) in which they should have been included according to the Classification by the previous owner (determination of the RF Armed Forces dated 01.04. 2015 N 304-KG15-1793).
Thus, in the situation under consideration, the organization must include the received property in the depreciation group in which it was included by the previous owner. Moreover, this group must be defined correctly.
In order to exercise the right established by the Tax Code of the Russian Federation to reduce the useful life or to independently determine the useful life of a used asset, an organization must document the period of actual operation of the asset by the previous owner, as well as the depreciation group in which this object was included. included. Representatives tax authorities explain (UFTS of Russia for Moscow dated 07.07.2008 N 20-12/064109) that when purchasing a fixed asset, an organization can confirm its service life by the previous owner with an act of acceptance and transfer of a fixed asset item, drawn up in the prescribed manner.
Otherwise, the organization cannot take advantage of the provisions of the Tax Code of the Russian Federation (see, for example, the Ministry of Finance of Russia dated 03/20/2013 N 03-03-06/1/8587, dated 12/14/2012 N, dated 10/09/2012 N, resolution of the Moscow District AS dated 14.10 .2015 in case No. A40-191195/14). Then the useful life of the organization will need to be established independently, guided by the Classification as for a new fixed asset, that is, without taking into account previous operation (Ministry of Finance of Russia dated July 16, 2009 N 03-03-06/2/141).

The gratuitous transfer of property is subject to VAT (Tax Code of the Russian Federation). When carrying out such operations, the taxpayer (the organization transferring the fixed assets) is obliged to charge VAT, issue an invoice and reflect it in the sales book.
However, a tax deduction cannot be applied when receiving property free of charge. The recipient of the invoice (including adjustments, corrected ones) received during the gratuitous transfer of goods (performance of work, provision of services), including fixed assets and intangible assets, are not registered in the purchase book (clause 19 of the Rules for maintaining the purchase book used in calculations for value added tax, approved by the Government of the Russian Federation dated December 26, 2011 N 1137 “On the forms and rules for filling out (maintaining) documents used in calculations for value added tax”).

Accounting

The procedure for accounting for fixed assets on the balance sheet of organizations is regulated by PBU 6/01 “Accounting for fixed assets” (hereinafter referred to as PBU 6/01) and the Guidelines for the accounting of fixed assets approved by the Ministry of Finance of Russia dated October 13, 2003 N 91n (hereinafter referred to as the Guidelines).
Property received free of charge is accepted for accounting as an asset if it meets the conditions provided for in clause 4 of PBU 6/01.
Like others, fixed assets received free of charge are taken into account at their original cost (clause 7 of PBU 6/01).
The initial value of fixed assets received free of charge is recognized as their current market value on the date of acceptance for accounting as investments in non-current assets (clause 10 of PBU 6/01, clause 29 of the Methodological Instructions).
The initial cost of fixed assets received free of charge also includes the actual costs of the organization for their delivery and bringing them into a condition suitable for use (clause 32 of the Methodological Instructions).
In this case, as a result of the gratuitous receipt of an asset, the organization receives other income in the amount of the market value of this asset (, 10.3 "Income of the organization", hereinafter -).
Based on clause 11 and clause 29 of the Methodological Instructions, such other income on the date of receipt of property is taken into account as part of deferred income in account 98, sub-account “Gratuitous receipts” (Ministry of Finance of Russia dated September 17, 2012 N 07-02-06/223) .
The cost of fixed assets is repaid by calculating depreciation using one of the methods listed in clause 18 of PBU 6/01. There are no exceptions for operating systems received free of charge. During the reporting year, depreciation charges for fixed assets are accrued monthly, starting from the first day of the month following the month in which this object was accepted for accounting, regardless of the calculation method used in the amount of 1/12 of the annual amount (clauses 17, 18, 21 , paragraphs 2, 5 clause 19 PBU 6/01).
Thus, the gratuitous receipt of fixed assets and its acceptance for accounting as an object of fixed assets are reflected in the entries:
Debit 08 Credit 98
- the market value of the property received free of charge is reflected;
Debit 08 Credit 76 (60)
- the costs of delivering the property and bringing it to a state suitable for use are reflected;
Debit 01 Credit 08
- reflects the initial cost of the fixed asset object put into operation;
Debit 20 (26, 44) Credit 02
- depreciation accrued;
Debit 98 Credit 91, subaccount "Other income"
- monthly, as depreciation is calculated, part of the cost of the fixed assets received free of charge is reflected in other income (clause 29 of the Methodological Instructions).

Documenting

All forms of primary accounting documents are determined by the head of the economic entity, and are developed by the person entrusted with accounting (Federal Law of December 6, 2011 N 402-FZ “On Accounting”, hereinafter referred to as Law N 402-FZ).
N 402-FZ does not provide for the mandatory use of documents contained in albums of unified forms. However, when developing their own primary accounting documents, organizations can use unified forms approved by the State Statistics Committee of Russia as a model.
Primary accounting documents are accepted for accounting if they contain the mandatory details specified in Law No. 402-FZ.
In accordance with clause 38 of the Methodological Instructions, the acceptance of fixed assets for accounting is carried out on the basis of a certificate of acceptance and transfer of fixed assets approved by the head of the organization. The unified form of the act on the acceptance and transfer of fixed assets (except for buildings, structures) N OS-1 was approved by the State Statistics Committee of Russia dated January 21, 2003 N 7. Based on this form, an organization can develop its own form of the act.
Based on the act of acceptance and transfer of fixed assets and accompanying documents ( technical passports manufacturing plants, etc.) an inventory card for recording a fixed asset item is opened (the card can be developed on the basis of Form N OS-6).
Thus, in order to accept fixed assets received free of charge for accounting, an organization must have:
- an agreement on the gratuitous transfer of property, drawn up in writing;
- act of acceptance and transfer of property;
- documents confirming the market value of fixed assets accepted for accounting (for example, an appraiser’s report);
- technical documentation.

Prepared answer:
Expert of the Legal Consulting Service GARANT
Vakhromova Natalya

The answer has passed quality control

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

Transmitting side takes into account the cost of gratuitously transferred property (including money) in other expenses, along with the amount of VAT accrued upon transfer. The postings will be like this:

The host takes into account property at market value (clause 9 of PBU 5/01, clause

Free receipt of property, wiring

10 PBU 6/01).

The market value of such property can be confirmed by one of the following documents:

– a certificate compiled by the organization itself based on available information on prices for the same property (for example, from the media);

– report of an independent appraiser.

Which account the property accounts will correspond to (01 “Fixed assets”, 10 “Materials”, 41 “Goods”) for the loan depends on who transferred the property.

Account for property received free of charge from a member of your organization as additional capital. The wiring will be like this:

Fixed assets transferred free of charge by a person who is not a member of your organization should be taken into account in correspondence with account 98 “Deferred income” (Letter of the Ministry of Finance dated September 17, 2012 N 07-02-06/223). As depreciation is accrued on this asset, future income is written off to other income. The postings will be like this:

Inventory received from a person who is not a member of your organization is immediately taken into account in other income. The postings will be like this:

Tags: taxesVAT

The property was received free of charge

Commercial medical organizations receive property free of charge from owners (founders), other organizations or individuals.

Behind the apparent simplicity of such a transaction, great complexities are hidden. Moreover, questions arise both in accounting and tax accounting. We will talk more about this in our article.

From the point of view of civil law...

...the gratuitous transfer of property and property rights is considered as a gift agreement (Article 572 of the Civil Code of the Russian Federation). The hallmark of such an agreement is the fact that it is gratuitous, and not the name. Therefore, a gift includes an agreement on the gratuitous transfer of property or the gratuitous assignment of claims, debt forgiveness, etc.

But please note: in accordance with Art. 575 of the Civil Code of the Russian Federation, commercial organizations cannot give each other property, except for ordinary gifts worth no more than 5 minimum wages (500 rubles). If the value of the property transferred free of charge exceeds this limit, tax officials can re-qualify such a transaction in court: they will prove that the transfer of property is not a gift, but something else. As a result, the transaction may be considered void.

Note. If they give money

According to the Civil Code of the Russian Federation, money is also considered property. Therefore, if a company received money as a gift from an individual, no questions arise. It is more difficult if they are received from an organization. After all, such gifts (if their value is more than 5 minimum wages) are prohibited. Therefore, how should such an operation be interpreted? You can’t call it feigned – someone is actually transferring money to someone. You can’t call it imaginary either (v.

Accounting for property received free of charge

170 of the Civil Code of the Russian Federation). Then the transaction can be called differently - insignificant.

In practice, there are situations when it is not property that is transferred free of charge, but only the right to use it.

This most often occurs when the owner of an organization transfers his personal property (for example, a car) for use.

A gratuitous use agreement is essentially similar to a lease agreement. And unlike a gift agreement, it can be concluded with both an individual and a legal entity and applied to property of any value: the Civil Code of the Russian Federation does not contain any restrictions on this agreement.

Accounting for property received free of charge

In accordance with clause 8 of PBU 9/99 “Income of the organization” (approved by Order of the Ministry of Finance of Russia dated May 6, 1999 N 32n), assets received free of charge, including under a gift agreement, are non-operating income. They are accepted for accounting at market value.

Clause 10.3 of PBU 9/99 establishes that the market value of such assets is determined by the organization on the basis of the prices in force for this or a similar type of asset at the time of their acceptance for accounting.

Moreover, price data must be confirmed by documents or examination.

It is worth noting the fact that regulatory documents on accounting provide recommendations for accounting for assets received free of charge, and not for accounting for services received free of charge (mainly under agreements for the free use of property). As for the second, it is only indicated that the property itself, received under a free use agreement, is accounted for in account 001 “Leased fixed assets”.

Tax accounting of property received free of charge

The cost of property and property rights received free of charge is recognized by the recipient as non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). True, there are exceptions to this rule. For example when funds are received targeted financing(Clause 14, Clause 1, Article 251 of the Tax Code of the Russian Federation). Or when the property is received from an organization that owns more than 50 percent of the shares (stake) in the authorized capital of the receiving party - a medical company (clause 11, clause 1, article 251 of the Tax Code of the Russian Federation).

Please note that property received free of charge is valued at the market price, but not lower than:

• residual value (for depreciable property);
• costs of its production or acquisition from the transferring party (for other property, work performed, services provided).

In this case, information on prices must be confirmed by documents or an independent assessment.

Example. The dental clinic Ariadna LLC received free of charge from Vesta LLC (a third-party organization) materials for filling teeth worth 120,000 rubles. True, the market price of these materials is 141,600 rubles.

In the accounting of Ariadna LLC, the accountant will reflect the following:

Debit 10 Credit 98 subaccount "Gratuitous receipts"

• RUB 141,600 — reflects the cost of received material assets(at their market price);

Debit 20 Credit 10

• RUB 141,600 — material assets are written off for production;

Debit 98 subaccount "Gratuitous receipts" Credit 91 subaccount "Other income"

• RUB 141,600 — the market value of the received material assets is included in the non-operating income of the company.

This posting is made after the cost of materials is written off to production.

At the same time, for profit tax purposes, Ariadna LLC must include 141,600 rubles. included in non-operating income at the time of receipt of materials.

Base:

• pp. 1 clause 4 art. 271 of the Tax Code of the Russian Federation - if the clinic determines income and expenses using the accrual method;
• clause 2 art. 273 of the Tax Code of the Russian Federation - if the clinic operates on a cash basis.

In practice, situations quite often arise when founders who own more than 50 percent of shares (shares) in the authorized capital of a company transfer their property to it for free use.

The question arises: should the freely received right to use this property be included in non-operating income?

According to tax authorities, it should be included. Since in Art. 251 of the Tax Code of the Russian Federation (clause 11, clause 1), which lists transactions not subject to income tax; we are talking only about property received free of charge from the founders, but not about services.

The definition of property is given in paragraph 2 of Art. 38 of the Tax Code of the Russian Federation, which states that property refers to types of objects of civil rights (with the exception of property rights).

It turns out that the right of use (property right) is not property. And the provisions of Art. do not apply to him. 251 of the Tax Code of the Russian Federation.

Note. How to evaluate a property right received free of charge?

Property received free of charge (work and services) must be valued at market value. This follows from paragraph 8 of Art. 250 of the Tax Code of the Russian Federation.

Nothing is said here about property rights.

Whether the freely received right to use property (property right) is a service is a controversial issue.

Clause 5 of Art. 38 of the Tax Code of the Russian Federation defines that a service for tax purposes is an activity whose results do not have material expression and are sold and consumed in the process of carrying out this activity. The All-Russian Classifier of Types of Economic Activities OK 029-2001 (OKVED), put into effect by Decree of the State Standard of Russia of November 6, 2001 N 454-st, does not provide for the pure exercise of property rights.

Nevertheless, the value of the property right received free of charge must be taken into account when calculating income tax. In this case, it is also better to estimate income at the market price of the property right, but not lower than the cost of its acquisition from the transferor.

A.S.Petrov

An organization can receive property or property rights free of charge only in two cases provided for by the Civil Code of the Russian Federation.

In the first case, the organization receives property or property rights under a gift agreement.

Free sales: wiring

In accordance with Article 572 of the Civil Code of the Russian Federation, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to yourself or to a third party.

In accordance with Article 575 of the Civil Code of the Russian Federation, commercial organizations cannot give each other property whose value exceeds five times the minimum wage.

In the case where the donor is a legal entity and the value of the gift exceeds five established by law minimum wage, the gift agreement must be made in writing. This norm is established by paragraph 2 of Article 574 of the Tax Code of the Russian Federation.

Calculation of payments for civil obligations established depending on the minimum wage, in accordance with Article 5 of the Federal Law of the Russian Federation of June 19, 2000. No. 82-FZ “On minimum size remuneration” from January 1, 2001 is based on a base amount equal to 100 rubles.

Another case of receiving a fixed asset free of charge is a donation. Based on Article 582 of the Civil Code of the Russian Federation, a donation is the gift of a thing or right for generally beneficial purposes. Donations can be made to citizens, medical, educational institutions, social protection institutions, charitable, scientific and educational institutions, as well as other subjects of civil law.

One of the conditions for donating property to legal entities is the use of this property for a specific purpose. A legal entity that has accepted a donation for which a specific purpose has been established must keep separate records of all transactions involving the use of such property.

If for some reason it becomes impossible to use the property for its intended purpose, it can be used for another purpose only with the consent of the person who donated the property.

For accounting purposes, the assessment of property received free of charge, in accordance with paragraph 1 of Article 11 of the Federal Law of the Russian Federation of November 21, 1996. No. 129-FZ “On Accounting” is determined by market value as of the date of capitalization.

The market price of a product (work, service) in accordance with paragraph 4 of Article 40 of the Tax Code of the Russian Federation is recognized as the price established by the interaction of supply and demand on the market of identical (and in their absence, homogeneous) goods (work, services) in comparable economic (commercial) conditions .

The definitions of identical and homogeneous goods are given in paragraphs 6 and 7 of Article 40 of the Tax Code of the Russian Federation:

— goods are recognized as identical if they have the same basic characteristics characteristic of them. When determining the identity of goods, taking into account, in particular, their physical characteristics, quality and reputation in the market, country of origin and manufacturer. When determining the identity of goods, minor differences in their appearance may not be taken into account;

— homogeneous goods are those that, while not identical, have similar characteristics and consist of similar components, which allows them to perform the same functions and (or) be commercially interchangeable. When determining the homogeneity of goods, they take into account, in particular, their quality, availability trademark, market reputation, country of origin.

Assets received by an organization under a gift agreement (free of charge), in accordance with paragraph 8 of the Accounting Regulations “Income of the Organization” PBU 9/99, approved by Order of the Ministry of Finance of Russia dated May 6, 1999. N 32н, are non-operating income.

Publication date: 2014-11-18; Read: 276 | Page copyright infringement

Accounting for transactions during gratuitous transfer of property

PLAN

Accounting with the receiving party

Determining the value of property

Tax accounting of property

Property accounting

Accounting with the transferring party

Tax accounting

Accounting

Any, even gratuitous, transfer and receipt of property must be reflected in accounting and tax accounting. The abstract will tell you how accounting is structured for the transferring and receiving parties if they use a simplified taxation system.

Relations built on the principle of gratuitousness are regulated by the rules established in civil legislation. The parties enter into a gift agreement, under which one transfers property (work, services) or property rights to the other free of charge.

Note. See paragraph 1 of Art. 572 of the Civil Code of the Russian Federation.

If the transfer of property or property rights is of an investment nature (for example, an investment in the authorized capital, in a joint activity, etc.), it is no longer gratuitous. Transfer on the condition of return is also not free of charge - the provision of a loan or loan.

Gifts between commercial organizations are prohibited, except in cases where the gift is not more than 5 minimum wages (clause 4 of Article 575 of the Civil Code of the Russian Federation). But if at least one of the parties is a non-profit organization or an individual, you can already act completely freely.

Now let's move on to accounting. Let's start with the recipient, since his accounting mainly requires comment.

Accounting with the receiving party

So, we are faced with two main questions: how to determine the value at which property should be capitalized if they have not paid for it, and what income and expenses will be included in tax and accounting?

Determining the value of property

If the property was paid for, the value is known from the receipt documents, but if it was received free of charge, you will have to determine it yourself.

Let's turn to regulatory documents. We will need the Accounting Regulations and financial statements in the Russian Federation and PBU 9/99 “Income of the organization”.

Note. Approved by Orders of the Ministry of Finance of Russia dated July 29, 1998 N 34n and dated May 6, 1999 N 32n.

According to clause 10.3 of PBU 9/99, assets received free of charge are accounted for at market value. It is determined by the organization based on current prices for this or a similar type of asset.

Market prices are also used in tax accounting, but there is one peculiarity. The market price is taken into account only if it is not lower than the residual value of the depreciable property. For other property (work performed, services provided), the market price should not be lower than the production or acquisition costs incurred by the transferring party. This setting is contained in clause 8 of Art. 250 of the Tax Code of the Russian Federation, although it concerns non-operating income under income tax. But at the station 250 there is a link in Art. 346.15 of the Tax Code of the Russian Federation on the income of “simplified people”, so we are also obliged to follow this guideline.

The recipient must confirm the correct price of the received property with the documents on which he based his determination independently, or with the conclusion of an independent appraiser.

Note. Independent examination is regulated by Federal Law No. 135-FZ of July 29, 1998 “On Valuation Activities in the Russian Federation.”

An organization that turns to an independent appraiser will no longer directly deal with the issue of value. If you decide to do it yourself, for example, the following sources of information may be useful (Article 40 of the Tax Code of the Russian Federation):

— stock exchange reports;

— documents of state statistical bodies and bodies regulating pricing;

— printed publications and media.

Let us give two examples - on the acceptance of property for accounting and on the determination of the market price.

Example 1. Klen LLC, which uses the simplified system, received a machine free of charge from a non-profit organization. An independent appraiser valued it at 20,000 rubles. According to the certificate provided by the transferring party, the residual value of the machine is 24,000 rubles. At what cost should the receipt of the machine be reflected in accounting and tax accounting?

In accounting, the machine must be capitalized for 20,000 rubles. - at the value assigned by the appraiser, and in the tax office indicate 24,000 rubles in income, since the market value turned out to be lower than the residual value (20,000 rubles.< 24 000 руб.).

Example 2. Forum LLC, which uses the simplified system, received a car made in 1992 free of charge. Its residual value is 97,000 rubles. How to determine market value? At what cost should a car be registered?

Let’s assume that the company’s accountant found in the newspaper “Sdelka” four advertisements for the sale of a car of the same year of manufacture (95,000, 97,000, 100,000 and 102,000 rubles) and two advertisements for the purchase (94,000 rubles and 98,000 rubles) .

The market price is equal to the arithmetic average of the prices indicated in the advertisements. We got 97,667 rubles. .

In accounting and tax accounting, receipt of the car will be reflected in the same amount - 97,667 rubles. (97,667 rubles > 97,000 rubles). To confirm the correctness of the calculation, you need to attach a newspaper to the accounting documents.

Position. Transfer without transfer of ownership

Organizations can transfer or receive property free of charge for a certain period of time.

Postings for the gratuitous transfer of goods between legal entities

For example, a manufacturer temporarily provides a refrigerator to a company that sells its ice cream. In these cases, a free use agreement (loan agreement) is drawn up.

A paradoxical situation has arisen with the taxation of property received under such an agreement. On the one hand, such receipts are not income from sales, since ownership does not transfer (Letter of the Ministry of Finance of Russia dated January 11, 2005 N 03-03-02-04/1/1). On the other hand, the taxpayer who received the property must include its market value in non-operating income (Letters of the Ministry of Finance of Russia dated February 17, 2006 N 03-03-04/1/125 and dated April 19, 2006 N 03-03-04/1/359 ).

The contradiction was resolved by the Presidium of the Supreme Arbitration Court of the Russian Federation, supporting the latest position of the Ministry of Finance (clause 2 of Information Letter dated December 22, 2005 N 98). Thus, the “simplified” people are still forced to take into account income. But the costs of the transmitting party, which reduce tax base, unfortunately, it still won’t appear...

Tax accounting of property

Income. When determining the object of taxation, firms using the simplified tax system take into account income from sales and non-operating income in accordance with Art. Art. 249 and 250 of the Tax Code of the Russian Federation. Income given in Art. 251 of the Tax Code of the Russian Federation are not included in their tax base.

Note. This is stated in paragraph 1 of Art. 346.15 Tax Code of the Russian Federation.

Following the general rule, the recipient attributes the cost of gratuitous property (work, services) and property rights to non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). Based on paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, property cannot be considered non-operating income if:

— the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring party, which is a legal entity;

— the authorized (share) capital (fund) of the transferring party consists of more than 50% of the contribution (share) of the receiving party, which is a legal entity;

— the authorized (share) capital (fund) of the receiving party consists of at least 50% of the contribution (share) of the transferring party, which is an individual.

Please note: restrictions apply exclusively to property, without affecting rights, works, or services. One more thing. If during the year such property (other than cash) is sold or transferred to third parties, its value should be included in income.

Let's find out at what time to reflect income from the receipt of property. Since the simplified tax system uses the cash method (clause 1 of Article 346.17 of the Tax Code of the Russian Federation), this will be the moment of signing the transfer and acceptance certificate.

Example 3. CJSC "Pegasus" applies the simplified tax system with the object of taxation being income. On March 11, 2006, the company received goods free of charge from the founding organization, whose share in the authorized capital is 60%. The market value of the goods is determined to be 17,000 rubles. Does it need to be reflected in tax accounting?

Since the authorized capital of Pegas LLC consists of more than 50% (60%) of the share of the transferring party, the cost of the goods received free of charge will not be included in the tax base, but will only be reflected in column 4 of the Book of Income and Expenses “Income - total” .

Now let’s look at how accounting will be done when selling property received free of charge.

Example 4. Let's use the conditions of example 3, adding the following to them. On June 19, 2006, Pegasus CJSC sold the goods for 15,000 rubles, immediately receiving payment. How to reflect the sale in tax accounting?

Upon receipt of the goods, the company had no taxable income. However, having sold the goods before the end of the year, she is obliged to include its market value (17,000 rubles) in income on the date of sale. In addition, income from sales (15,000 rubles) should be reflected on the date of receipt of funds. Let's fill out the Income and Expense Accounting Book (Table 1 on p. 48).

Table 1. Fragment of the Book of Income and Expenses

CJSC "Pegasus" for the second quarter of 2006

Expenses. Of course, there are no expenses when receiving the property. Will it be possible to include its cost in expenses in the future, for example, when selling or writing off for production? Unfortunately, it's not possible. The fact is that under the simplified tax system, only paid-for property can be classified as expenses (clause 2 of article 346.17 of the Tax Code of the Russian Federation). It follows from this that in any transactions with property received free of charge (for example, during a sale, as in example 4), only income appears.

Gratuitous receipt (transfer) - receipt (transfer) of property (work, services) or property rights, if it is not related to the recipient’s obligation to transfer property (property rights) to the transferor (perform work for the transferor, provide services to the transferor).

Definitions from regulations

Tax Code of the Russian Federation (clause 2 of Article 248 of the Tax Code of the Russian Federation):

“For the purposes of this chapter*, property (work, services) or property rights are considered received free of charge if the receipt of this property (work, services) or property rights is not associated with the occurrence of an obligation on the recipient to transfer the property (property rights) to the transferor (perform for the transferor persons of work, provide services to the transferring person)".

* Chapter 25 "Corporation income tax"

A comment

Gratuitous transactions exist in commercial circulation. Within the framework of entrepreneurial activity, such transactions are not frequent, but are possible.

Basically, gratuitous transactions are used within groups of companies with a single composition of shareholders (owners). In such a situation, the transfer of goods (work, services) free of charge does not entail transfers to another real owner.

Recipient

In general, the gratuitous receipt of goods (work, services) results in the receipt of taxable income for the recipient.

Thus, for income tax, clause 8 of Art. 250 of the Tax Code of the Russian Federation provides that the recipient receives non-operating income in the form of property (work, services) or property rights received free of charge. In this case the rule is established:

Income is assessed based on market prices determined taking into account the provisions of Article 105.3 of the Tax Code of the Russian Federation, but not lower than the residual value determined in accordance with Chapter 25 - for depreciable property and not lower than production (acquisition) costs - for other property (work performed, services provided). services). Information on prices must be confirmed by the taxpayer - the recipient of the property (work, services) documented or by conducting an independent assessment;

In the case of transfer of property within interdependent entities, there are benefits that are specified in Art. 251 of the Tax Code of the Russian Federation (for example, clauses 11, 14, 3.4 clause 1 of Article 251 of the Tax Code).

Transmitting side

The party transferring free of charge does not have the right to accept the cost of what is transferred as an expense. This is expressly stated in paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, which prohibits recognizing as income tax expenses the cost of gratuitously transferred property (work, services, property rights), as well as expenses associated with such transfer.

In the case of the transfer of goods (work, services), the transferring party is obliged to calculate and pay VAT to the budget, since a gratuitous transfer is recognized as a sale (Article 146 of the Tax Code of the Russian Federation). Some VAT benefits in case of gratuitous transfer are provided for in the same article. 146 of the Tax Code of the Russian Federation.

The civil code provides gift agreement, which is regulated by Chapter 31 of the Civil Code of the Russian Federation.

Article 572. Donation agreement 1.

Under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release her from a property obligation to himself or to a third party (p 1, Article 572 of the Civil Code of the Russian Federation).

If there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation.

Prohibition of gifts in commercial relations

Article 575 of the Civil Code of the Russian Federation does not allow donations, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles in relations between commercial organizations.

Based on this prohibition, the question arises: how legal are gratuitous transactions?

As I already mentioned, in groups of companies with a homogeneous composition of shareholders (owners), gratuitous transactions are used to redistribute property in the group.

The Supreme Arbitration Court of the Russian Federation in the Resolution of the Presidium of 04.12.2012 N 8989/12 in case N A28-5775/2011-223/12 considered the dispute between the taxpayer and the registration authority. The concern, through gratuitous transactions, seized property from one organization and transferred it to another. Authority registering rights to real estate refused to register the rights, considering that the provisions of the Civil Code of the Russian Federation on the prohibition of donations between commercial organizations were violated. The Supreme Arbitration Court of the Russian Federation concluded in favor of taxpayers:

"In accordance with paragraph 1 of Article 572 of the Civil Code, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) a thing in ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from property obligation to oneself or to a third party.

From the content of the above norm it follows that the gratuitous transfer of property is a sign of a gift agreement, but not the only one. A mandatory qualifying feature of a gift agreement is the obvious intention of the donor to transfer property as a gift arising from the agreement of the parties (this is indicated in the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 25, 2006 N 13952/05).

Thus, the gift of property presupposes the presence of the will of the donor, who intends to transfer the property belonging to him to another person free of charge precisely as a gift (with the intention of benefiting the recipient), and not on any other basis arising from the economic relations of the parties to the transaction.

The transfer of property completed between the concern and the company is not a gift transaction, which is prohibited in accordance with subparagraph 4 of paragraph 1 of Article 575 of the Civil Code.

Economic relations between the main and subsidiary companies may involve not only investments of the main company in the property of the subsidiary at the stage of its establishment, but also at any stage of its activity. In addition, economic feasibility in relations between a subsidiary and the main company may necessitate the reverse transfer of property. At the same time, the absence of direct reciprocity is a feature of the relationship between the main and subsidiary companies, which from an economic point of view represent a single economic entity.

Considering the control of the company by the concern and the general goals of their economic activities, for the implementation of which there may be a need for redistribution of property (resources) between the main and subsidiary companies, the qualification of any transactions made between such persons to transfer property without direct reciprocity as a gift is erroneous.

The principle of freedom of contract (Article 421 of the Civil Code) expands the possibilities for optimizing the activities of interrelated legal entities. At the same time, the rights and interests of third parties - creditors of the subsidiary and main companies - are not violated, since their interests are protected by the provisions of bankruptcy legislation (on challenging transactions made on the eve of bankruptcy), as well as by the rules on the liability of persons who have the right to give mandatory instructions to a legal entity and so on.

While recognizing the management's refusal as legitimate in terms of qualifying the controversial transaction as a gift, the courts did not take into account the fact that the provisions of the Civil Code prohibiting gifts between commercial organizations are aimed at protecting the interests of the participants of the legal entity - the donor in the alienation of property belonging to this legal entity, was carried out for equivalent consideration. However, when transferring property from a subsidiary to the main one (and vice versa), the interests of minority participants in companies, which may be infringed by such transactions, are protected by special provisions of the legislation on business companies (for example, on the right to demand the redemption of shares or the acquisition by the company of a share or part of a share in the authorized capital, on approval of transactions in which there is an interest of participants in a business company).

In connection with the above, the courts had no grounds for applying the provisions of subparagraph 4 of paragraph 1 of Article 575 of the Code in the present case.

Additionally

Durable labor equipment (over 12 months). Fixed assets include buildings, machinery and equipment, structures and transmission devices, and vehicles.

The property right that an institution or state-owned enterprise has to the property assigned to them. An institution or a state-owned enterprise owns and uses this property within the limits established by law, in accordance with the goals of its activities and the purpose of this property. An institution or a state-owned enterprise disposes of this property with the consent of the owner of this property.

The right to own, use and dispose of property.