Is property received free of charge considered income? Income tax on gratuitous transfer and receipt of property not from the founders

"Housing and communal services: accounting and taxation", 2007, N 5

According to paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, property (work, services) or property rights received free of charge are recognized as non-operating income. An exception to this rule is the cases referred to in Art. 251 Tax Code of the Russian Federation. We’ll talk about the nuances of using these articles today.

Everyone knows that according to paragraphs. 3 p. 1 art. 251 of the Tax Code of the Russian Federation, property, property or non-property rights with a monetary value, received in the form of a contribution to the authorized capital, are not taken into account as part of the organization’s income. However, the accounting of assets that are received free of charge in addition to contributions to the management company must be approached very carefully.

In paragraphs 11 clause 1 art. 251 of the Tax Code of the Russian Federation states that property transferred free of charge is not taken into account as part of the income of legal entities if it was received by a Russian organization:

• from the founder (legal or individual), whose participation share in the recipient organization exceeds 50%;
• from a subsidiary, if the share of participation of the receiving party in it is more than 50%.

Received property is not recognized as income for tax purposes only if within one year from the date of receipt it, with the exception of cash (Letters of the Ministry of Finance of Russia dated March 13, 2007 N 03-11-04/2/63, dated April 19, 2006 N 03-03-04/1/360), is not transferred to third parties.

Please note: the size of the share in the authorized capital does not matter if there is a gratuitous transfer of property rights (free provision of property for use). In this case, non-operating income is inevitably generated, since according to paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, only property received free of charge, and not property rights, is exempt from taxation. For the purposes of applying the Tax Code of the Russian Federation, this difference is fundamental, since under property in accordance with clause 2 of Art. 38 of the Tax Code of the Russian Federation refers to the types of objects of civil rights (with the exception of property rights) related to property in accordance with the Civil Code of the Russian Federation.

Let us recall that in Information Letter No. 98 dated December 22, 2005, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that the application of clause 8 of Art. 250 of the Tax Code of the Russian Federation is not limited only to property rights that represent claims against third parties. This provision is also valid when obtaining the right to use a thing free of charge. Moreover, according to the arbitrators, the principle of determining income when receiving property free of charge, established by Art. 40 of the Tax Code of the Russian Federation, is also subject to use when assessing income arising from the gratuitous receipt of property rights, including the right to use a thing. Only unitary enterprises that receive property for use from the owner free of charge (clause 26, clause 1, article 251 of the Tax Code of the Russian Federation) found themselves in a preferential position. This issue was discussed in more detail in the third issue of 2006 (E.V. Ermolaeva, “Review of Arbitration Practice,” p. 78).

As practice shows, it is sometimes very difficult to determine what was received free of charge - property or the right to use it. Sometimes it may be neither one nor the other.

Free transfer of funds

If an enterprise of any organizational and legal form (OJSC, CJSC, LLC, etc.) needs funds to carry out its activities, and the founder or subsidiary organization that meets the criteria defined in paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, can provide them free of charge and irrevocably, then tax consequences at the time of transferring money and its use there is no need to be afraid (Letter of the Ministry of Finance of Russia dated November 9, 2006 N 03-03-04/1/736). However, the following difficulties may arise later. According to the Ministry of Finance, expenses incurred using funds received free of charge are not taken into account for tax purposes.

In Letter No. 03-03-04/1/751 dated November 10, 2006, officials considered this situation. The organization received funds free of charge from its founder, who owns 90% of its capital. They were used to purchase debt securities and claims from third parties (according to the Chart of Accounts, they are subject to accounting in account 58). These assets were then sold. So, officials prohibited reducing the income received from the sale of securities and rights of claim by the amount of the costs of their acquisition. In support of their position, they referred to paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, which states that when determining tax base expenses in the form of the cost of gratuitously transferred property (work, services, property rights) and expenses associated with such transfer are not taken into account. In our opinion, this clause is not applicable in this situation, since it is obvious that it is addressed to organizations transferring, and not receiving, assets. Apparently, the Ministry of Finance later recognized this fact, but did not abandon its previous position. Therefore, in Letter dated March 27, 2007 N 03-03-06/1/173, he also spoke in favor of excluding from the income tax base expenses incurred using “free” money, but without specifying specific norms.

Please note: it may be simply impossible to control what kind of funds (received free of charge or your own) were used to pay for the assets.

Loans turn... into windfalls

In 2006, the Ministry of Finance repeatedly said that if an organization first received a loan from the founder (subsidiary organization) with a corresponding share in the management company, and then this debt was forgiven, then it can legally take advantage of clauses. 11 clause 1 art. 251 Tax Code of the Russian Federation.

Firstly, property (other similar funds, including securities) received under a loan agreement, in accordance with paragraphs. 10 p. 1 art. 251 of the Tax Code of the Russian Federation is not taken into account as part of income. Secondly, funds previously received under a loan agreement and remaining at the disposal of the organization as a result of an agreement with the lender on debt forgiveness should be considered as received free of charge. That is, property (including money) that was received under a loan agreement by a subsidiary from the parent (or vice versa), if the obligation is subsequently terminated by forgiveness of the debt, is not taken into account for tax purposes (Letter of the Ministry of Finance of Russia dated 04/07/2006 N 03- 03-02/79).

However, in this case, it is important whether the lender, at the time of lending money, was the founder (subsidiary organization) of the borrower with the corresponding share in the capital company. If he showed up, then there will be no problems, but if “family” relationships (“mother-daughter”) between enterprises arose in the period after the conclusion of the loan agreement, but before the debt was forgiven, then, in the opinion of the Ministry of Finance, use the benefit established by paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, no grounds (Letter dated 03.10.2006 N 03-03-04/1/680).

There are several other situations where officials are against reducing the tax burden. One of them was considered in the Letter of the Ministry of Finance of Russia dated March 30, 2007 N 03-03-06/1/201. So, if a related company pays for the organization of raw materials, fixed assets and other valuables, and then novations the resulting debt into a loan with its subsequent forgiveness, then the happy owner of the listed valuables will have to charge income tax, since in the situation under consideration there is no there is a transfer of any property, and there is a write-off accounts payable, the amount of which is subject to inclusion in non-operating income on the basis of clause 18 of Art. 250 Tax Code of the Russian Federation<1>. Let us note that, having explained the taxation procedure, the financial department did not notice (or perhaps deliberately overlooked) that the parent company planned to forgive the subsidiary’s debt not only under the new loan, but also under the compensated transaction concluded between them for the supply of goods. In our opinion, the subsidiary has the right to apply paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation to that part of the forgiven debt that falls on the transaction for the supply of goods, since the fact free receipt property is available.

<1>A similar position was expressed in Letters of the Ministry of Finance of Russia dated March 17, 2006 N 03-03-04/1/257, dated March 28, 2006 N 03-03-04/1/295.

From the gratuitous transfer of property to the provision of services, one... clause of the contract

The taxation procedure for individual transactions may directly depend on the terms of the agreement. Thus, in Letter of the Ministry of Finance of Russia dated March 2, 2006 N 03-03-04/1/177, the situation was considered when the 100% founder of an organization pays rent for a month on the basis of a tripartite agreement between the lessor, the organization and the founder. Officials regard it as follows:

• if the rent paid by the founder, under the terms of the agreement, can be qualified as specified in paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation, then it is not taxable income of the organization;
• if from the essential terms of the agreement it follows that the organization receives from the lessor a free service for renting premises, then income in the form of this service is taken into account when determining the tax base for corporate income tax in the manner prescribed by clause 8 of Art. 250 Tax Code of the Russian Federation<2>.

In addition, financiers, as before, point out: in both the first and second cases, the organization does not have expenses for paying the accrued rent, which means that it is not taken into account when determining the tax base for income tax.

How should a contract be drawn up to take advantage of the benefit? If the agreement stipulates that the obligation to pay for the services of the lessor is assigned to the organization, and the founder acts as a guarantor of its timely payment, then, in our opinion, the application of the norm of paragraphs. 11 clause 1 art. 251 of the Tax Code of the Russian Federation is lawful. It is possible that the fact that the founder transferred funds to pay off the rent first to the organization’s current account will be a key argument in classifying the income received. If the obligation to pay rent is assigned to the founder, that is, in fact, an agreement is concluded between the founder and the lessor in favor of third parties (Article 430 of the Civil Code of the Russian Federation), then the organization will not be able to take advantage of the provisions of paragraphs. 11 clause 1 art. 251 Tax Code of the Russian Federation.

You can also get rich by collateralizing your property

If a company decides to take out a loan from a bank, then it is likely that it will need to secure its obligations with collateral. Her own property may not be enough, then she will be forced to turn to partners. If a “disinterested friend” is found and pledges his own property to the bank free of charge, then the organization can be congratulated on a taxable profitable transaction. In any case, this is what the Ministry of Finance thinks (Letter dated 03.10.2006 N 03-03-04/1/679).

It would seem that the collateral property is not transferred to the borrower, that is, it is impossible to talk about a gratuitous transfer of property. In addition, this property is not transferred to the borrower even for free use, since it remains with the mortgagor (according to the taxpayer’s request, it is leased to third parties). It turns out that the gratuitous provision of one’s own property as collateral to secure the obligations of a third party should be considered as a service rendered free of charge. Consequently, the recipient of this service generates income that is taken into account for profit tax purposes on the basis of clause 8 of Art. 250 Tax Code of the Russian Federation.

M.O. Denisova

Editor in Chief

"Department of Housing and Utilities:

accounting and taxation"

The definition of property received free of charge can be found in the Civil Code of the Russian Federation. In most cases, a transfer of property that does not have a commercial basis is considered a donation. In addition, the party transferring the property has the right to completely release the person receiving the property from various obligations to him or other persons.

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In addition to various things, the object of donation can also be the right to property. In accordance with the Tax Code of the Russian Federation, property or rights to it are considered to be received free of charge if the person to whom it was transferred does not have various obligations to the transferring party. This list may also include various works and services.

However, current legislation has introduced a number of restrictions on the act of gratuitous transfer of property.

For example, a ban on donations between organizations engaged in commercial activities has been introduced. However, gifts not exceeding 5 minimum wages are permitted. There are much fewer prohibitions in this regard in the tax code. The amount of tax assessment depends largely on the circumstances.

Law

Legislatively, the possibility of gratuitous transfer of property is enshrined in the tax and civil codes of the Russian Federation. They also regulate various subtleties on this issue.

The issue of paying property tax is regulated.

Income tax on property received free of charge

A detailed list of income on which tax is levied is given in Art. 346 Tax Code of the Russian Federation. All profits can be divided into:

• income received by a citizen through the sale of various goods and services;
• income received by other means.

The last point also includes property and rights to it received free of charge. Exceptions to this rule are given in.

According to current legislation, income from such transactions will be taxed if the property is received:

• from various organizations, provided that the recipient's deposit is more than 50% of the transferring party's contribution;
• from an individual under the same conditions.

The received property will not be subject to income tax if it is not transferred to third parties within the period established by law. If a citizen received property free of charge, but one of them is not depreciable, he is obliged to assess the income associated with it based on market price indicators. The valuation cannot be lower than the funds incurred for the acquisition.

If a citizen has acquired depreciable property of this kind, the amount of income must be assessed based on market price indicators, which are determined taking into account Art. 40 Tax Code of the Russian Federation. However, their size cannot be lower than the standards established in Chapter 25 of the Tax Code of the Russian Federation.

Price indicators for receiving property free of charge are confirmed by documents or an independent assessment. When transferring an object or rights to it, carried out on a gratuitous basis, it is considered that a donation has been made.

The transfer will not be considered gratuitous if the citizen is obliged to return the previously received item. There are often cases when the transfer of property is carried out for a specified period, and it is necessary to conclude an agreement for gratuitous use. In this case, the income is also taxed.

There are often cases when a citizen or company receives an interest-free loan. In this case, there is no income as such. Accordingly, there is no need to pay tax.

This is confirmed by numerous statements by tax inspectors, as well as legislative acts.

However, in some cases, according to experts, the taxpayer has a certain material benefit. In this case, an interest-free loan is classified as a gratuitous service. The citizen is considered to receive income. It represents the benefit of saving on interest payments.

This issue is still controversial. On the one hand, an interest-free loan cannot in any way be considered a gratuitous service. On the other hand, the citizen still receives a certain material benefit.

All the details of an interest-free loan are regulated by Chapter 42. Civil Code of the Russian Federation.

In accordance with it, an interest-free loan is a transfer of money or other things into the possession of the borrower with the obligation of the latter to return the property within a specified period. In this case, its quantity must be equal to that received.

Individuals

They pay a type of contribution to the budget provided that the amount of the contribution of the transferring party is exceeded established by law normal

Organizations

When a company is just starting out, it often needs financial assistance from its founders. The latter, in turn, are often forced to provide support to the subsidiary in the form of various contributions and loans.

There are often cases when an act of gratuitous transfer of property into ownership is performed. However, when committing such acts, you should carefully consider the essence of the transaction, because in some cases taxpayers will be required to remit property taxes on property received free of charge.

According to income taxes include funds received by an organization through the sale of goods and services, as well as income received in other ways.

Property or rights to it fall under the act of donation, subject to the receipt of these assets with the emergence of obligations from the recipient to the transferor. Property received free of charge is classified by tax legislation as non-operating income.

Sum

Income tax expenses depend on, which in most cases is 20%, as well as the type of property involved in the transaction.

Some regions, as well as federal cities, may have their own tax rates.

In most cases, 18% is transferred to the regional budget, and 2% to the federal budget.

Detailed information about the current tax rate in the territory of a constituent entity of the Russian Federation can be found on the website of the Federal Tax Service.

Payment procedure and terms

The authorities of the constituent entities of the Russian Federation often pass various laws that slightly adjust the procedure and timing of tax collection.

Direct payment of tax by a citizen is carried out at a bank branch or using electronic resources.

Legislation undergoes periodic changes, therefore, when calculating the amount of tax, as well as when paying it, a citizen must be aware of the latest changes. To do this, you need to clarify the information on the website of the tax service or other government portals, as well as by personally contacting the tax office.

Gratuitousness in the generally accepted understanding is the transfer of property by one person to another person without payment, that is, free of charge. The gratuitous provision of valuables can be temporary or permanent with the transfer of ownership.

From this article, readers will be able to learn how transactions involving the gratuitous transfer and receipt of property from persons other than the founders are reflected for tax purposes on the profits of organizations.

First of all, we note that the civil law basis for the provision of property for free use is established by Chapter. 36 “Free use” of the Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation).

Under an agreement of gratuitous use, otherwise such an agreement is called a loan agreement, one party to the agreement (the lender) undertakes to transfer or transfers an item for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same item in the condition in which it received it, taking into account normal wear and tear or in the condition stipulated by the contract (Article 689 of the Civil Code of the Russian Federation).

The owner of the thing, as well as other persons endowed with such right by law or by the owner, have the right to transfer a thing for free use, as defined in paragraph 1 of Art. 690 Civil Code of the Russian Federation.

Please note that a commercial organization does not have the right to transfer property for free use to a person who is its founder, participant, manager, or member of management and control bodies. Such a restriction on the transfer of things for free use is established by clause 2 of the same article. 690 Civil Code of the Russian Federation.

The thing must be provided for free use with all its accessories and related documents - technical passport, instructions for use and other documents - unless otherwise provided by the contract.

Since the topic of our article is the taxation of profits from transactions of gratuitous transfer and receipt of property, we will not consider in more detail the legal basis of gratuitous use agreements. If necessary, readers will be able to familiarize themselves with them.

Let's turn to Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation).

Let us recall that in accordance with paragraph 2 of Art. 248 of the Tax Code of the Russian Federation, for the purposes of taxing the profits of organizations, 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 of work, to provide services to the transferor).

Income tax for an organization transferring property for free use

To recognize expenses for corporate profit tax purposes, the criteria established by Art. 252 of the Tax Code of the Russian Federation.

According to the provisions of this article of the Tax Code of the Russian Federation, for profit tax purposes, all economically justified and documented expenses of the taxpayer that are incurred by him in connection with the implementation of activities aimed at generating income are accepted.

Expenses that do not meet the specified criteria are not taken into account when determining the tax base for corporate income tax (clause 49 of Article 270 of the Tax Code of the Russian Federation).

From the Letter of the Federal Tax Service of Russia for Moscow dated January 15, 2009 N 19-12/001819 it follows that with the gratuitous transfer of property belonging to an organization, the organization is not expected to receive any income, the organization does not receive economic benefits, and therefore it does not generate income that is taken into account for income tax purposes. Thus, if an organization does not receive income during the gratuitous transfer of property, then expenses cannot be recognized for profit tax purposes.

According to paragraph 16 of Art. 270 of the Tax Code of the Russian Federation, when determining the tax base for income tax, expenses in the form of the cost of gratuitously transferred property (work, services, property rights) and expenses associated with such transfer are not taken into account.

What other points should you pay attention to when transferring property for free use?

If the property transferred free of charge is depreciable and is taken into account by the transferring party as part of fixed assets, the following provisions of the Tax Code of the Russian Federation must be taken into account.

For profit tax purposes in accordance with clause 3 of Art. 256 of the Tax Code of the Russian Federation, fixed assets transferred (received) under contracts for free use are excluded from depreciable property.

In accordance with paragraph 2 of Art. 322 of the Tax Code of the Russian Federation for fixed assets transferred by the taxpayer for free use, starting from the 1st day of the month following the month in which the specified transfer occurred, depreciation is not calculated.

When a contract of gratuitous use is terminated and objects of depreciable property are returned to the taxpayer, depreciation on them is calculated using the linear depreciation method from the 1st day of the month following the month in which the objects were returned to the taxpayer (clause 7 of Article 259.1 of the Tax Code of the Russian Federation).

If an organization does not use linear method accrual of depreciation, then upon termination of the contract for gratuitous use and the return of objects of depreciable property, depreciation on such objects is accrued in the same manner as with the linear method (clause 9 of Article 259.2 of the Tax Code of the Russian Federation).

Despite the fact that property transferred (received) under an agreement for gratuitous use is excluded from depreciable property, capital investments in fixed assets provided under an agreement for gratuitous use in the form of inseparable improvements made by the borrower with the consent of the lender are recognized as depreciable property. This norm is established by Art. 256 Tax Code of the Russian Federation.

Capital investments in fixed assets received under a gratuitous use agreement, the cost of which the lender reimburses to the borrower, in accordance with clause 1 of Art. 258 of the Tax Code of the Russian Federation, are amortized by the lender in the manner established by Ch. 25 Tax Code of the Russian Federation.

Features of management tax accounting operations with depreciable property are established by Art. 323 Tax Code of the Russian Federation. This article determines that analytical accounting should, in particular, contain information:

– on the date of transfer of property into operation;

– on the date of exclusion from depreciable property when transferred under a contract of gratuitous use;

– on the expiration date of the free use agreement.

The Letter of the Ministry of Finance of Russia dated March 25, 2010 N 03-03-06/1/174 discusses the following situation. The organization transfers equipment for temporary use, and the transfer is carried out within the framework of a contract for the supply of goods, according to the terms of which the payment for the rental of equipment is included in the cost of the goods supplied. The price of the goods is the same both for buyers using equipment owned by the organization and for buyers to whom the equipment was not transferred. Is such a transfer gratuitous and does the organization have the right to take into account depreciation on the transferred equipment for the purposes of calculating income tax?

Since the equipment provided for temporary use under a contract for the supply of goods does not increase the price of the supply contract, then, in the opinion of the Ministry of Finance, set out in the Letter in question, the provision of equipment for temporary use is free of charge due to the fact that such provision does not give rise to counter-property obligations for the recipient. The Letter also states that fixed assets transferred (received) under agreements for free use are excluded from depreciable property, thus, equipment provided by the taxpayer for temporary use under a supply agreement that does not cause counter-property obligations for the recipient is not for the purpose of taxation of profits on depreciable property.

Income tax for an organization that has received property for free use

To income for the purpose of taxing the profits of organizations in accordance with paragraph 1 of Art. 248 of the Tax Code of the Russian Federation includes income from the sale of goods (work, services) and property rights and non-operating income.

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 recipient having an obligation to transfer the property (property rights) to the transferor (performing work or providing services for him) , which we have already discussed in the article.

Clause 8 of Art. 250 of the Tax Code of the Russian Federation provides that income in the form of gratuitously received property (work, services) or property rights (including the right to use property), except for the cases specified in Art. 251 of the Tax Code of the Russian Federation are recognized as non-operating income of the taxpayer and, therefore, are taken into account when forming the tax base for corporate income tax in accordance with the provisions of Art. Art. 247 and 248 of the Tax Code of the Russian Federation.

The Ministry of Finance of Russia in Letter dated October 1, 2012 N 03-03-06/4/100 drew the attention of taxpayers to the fact that for profit tax purposes, receiving property for free use should be considered as free receipt of property rights.

When receiving property (work, services) free of charge, income is assessed based on market prices determined taking into account the provisions of Art. 105.3 of the Tax Code of the Russian Federation, but not lower than that determined in accordance with Chapter. 25 of the Tax Code of the Russian Federation, residual value - for depreciable property and not less than the cost of production (purchase) - for other property (work performed, services rendered). Information on prices must be confirmed by the taxpayer - the recipient of the property (work, services) documented or by conducting an independent assessment.

A taxpayer who receives property for gratuitous use under an agreement includes in non-operating income income in the form of the gratuitously received right to use the property, determined on the basis of market prices for the rental of identical property.

Article 695 of the Civil Code of the Russian Federation imposes obligations on the borrower to maintain the thing received for free use in good condition, including the implementation of current and overhaul, as well as bearing all expenses for its maintenance, unless otherwise provided by the agreement for free use.

The receiving party, in the case of carrying out activities aimed at generating income in connection with the use of property received free of charge, takes into account for profit tax purposes the expenses associated with the use and maintenance of such property, provided that such expenses meet the criteria established by Art. 252 of the Tax Code of the Russian Federation. This opinion was expressed in Letter of the Ministry of Finance of Russia dated July 24, 2008 N 03-03-06/2/91.

In the previous section of the article, we noted that, according to paragraph 3 of Art. 256 of the Tax Code of the Russian Federation, fixed assets transferred (received) under agreements for gratuitous use are excluded from depreciable property. Neither the lender nor the borrower accrues depreciation on such property.

But it was also noted that capital investments in fixed assets provided under a free use agreement in the form of inseparable improvements made by the borrower with the consent of the lender are recognized as depreciable property.

The lender may or may not compensate for expenses incurred by the user of the property. So, capital investments, the cost of which is not reimbursed by the lender, are depreciated by the borrower during the term of the gratuitous use agreement, determined for the received fixed assets in accordance with the Classification of fixed assets included in depreciation groups, approved by the Decree of the Government of the Russian Federation of January 1, 2002 .N 1.

Income tax on gratuitous transfer (receipt) of property with transfer of ownership

Above, we examined issues related to the transfer and receipt of property under a contract for gratuitous use, when the ownership of the property does not pass from the transferring party to the party receiving the property for use.

But in some cases, when transferring (receiving) property free of charge, ownership of it is transferred. One such case is the gift of property. Let us recall that under the gift agreement in accordance with Art. 572 of the Civil Code of the Russian Federation, one party (the donor) transfers the property into ownership to the other party (the donee) free of charge. If the donor is a legal entity and the value of the gift exceeds 3,000 rubles, the agreement for the donation of movable property must be made in writing, as established by clause 2 of Art. 574 Civil Code of the Russian Federation. Please note that donations are not allowed in relations between commercial organizations, with the exception of ordinary gifts whose value does not exceed 3,000 rubles. (Clause 4, Clause 1, Article 575 of the Civil Code of the Russian Federation).

For profit tax purposes, the value of gratuitously transferred property and expenses associated with such transfer are not taken into account when determining the tax base for income tax on the basis of clause 16 of Art. 270 Tax Code of the Russian Federation.

For example, acquisition costs are not taken into account for profit tax purposes. gift certificates which are given to clients as gifts. As noted in Letter of the Ministry of Finance of Russia dated April 4, 2011 N 03-03-06/1/207, when purchasing a gift certificate, an organization does not acquire a product, but the seller’s obligation to provide the product (work, service) chosen by the certificate owner for a certain amount. Cash, paid by the organization - buyer of company certificates - agent of sellers of goods (works, services), are actually advances paid for goods (works, services). Expenses associated with the acquisition and transfer of gift certificates are not taken into account for profit tax purposes, since property rights certified by these certificates are transferred to participants in shared construction free of charge.

The organization's income in the form of property received free of charge is recognized in accordance with clause 8 of Art. 250 of the Tax Code of the Russian Federation with non-operating income. Income assessment is carried out in a manner similar to that discussed in the previous section of this article.

During the development of economic and commercial activities between companies, it is possible to transfer assets free of charge, under a gift agreement. This means that the recipient of the assets does not fulfill the reciprocal obligations of the donor. If the donor is a legal entity and the amount of transferred property is more than 5 minimum wages, then the gift agreement is drawn up in writing.

Accounting for gratuitously transferred assets

The gratuitous transfer of fixed assets is the income of the enterprise. Acceptance for accounting is carried out on the date of provision and at market prices of assets, taking them into account as other income parts (clause 7 of PBU 9/99). The estimated value at market prices cannot be lower than the amount of the residual value of the object according to information from the transferring party.

The market value of the asset that is transferred by the donor is determined according to the statistical indicators of this asset, according to information from the manufacturer, and according to expert opinions.

Its initial amount includes all costs associated with additional costs for transportation, restoration, repairs and more.

In accounting, the definition of gratuitously received property among other income is distributed gradually, in relation to the period of time of its use, simultaneously with the calculation of depreciation charges. The initial cost of fixed assets relates to the income portion of future periods (account 98.01). An asset is included in the income group after both parties sign a document on acceptance and transfer of fixed assets.

You need to know: organizations that have received fixed assets free of charge may not be charged income tax if the founder of the organization has 50% or more of the authorized capital of the contribution of the receiving organization. The amount of the asset received is not considered income for the purpose of calculating income tax if one year is not sent to third parties.

Examples of accounting for gratuitously acquired property

Example No. 1: accounting for the gratuitous transfer of fixed assets from the parent company.

The director, represented by the founder of Vesna LLC, decided to transfer Beloshveyka LLC on the basis of free use of the OS at a market value of 450,000 rubles. The basis for the transfer of fixed assets is the decision of the founder and the act of acceptance and transfer of the asset.

The accountant of Beloshveyka LLC prepares accounting records:

• Dt08 Kt98.01 – 450,000 rub. – shows the value of an asset acquired from the founder for free use;
• Dt01 Kt08 – 450,000 rub. – put the OS into operating mode.

The founder's share in the authorized capital of Vesna LLC is 100%, therefore the amount of property transferred free of charge is not subject to income tax. The period of time for the useful use of the object is 5 years.

Depreciation charge for fixed assets: 450,000:60 (months) = 7,500 rubles.

Depreciation accounting begins from the month the object is entered into the workflow with the following entries:

• Dt23,25,26,44 Kt02 – 7500 – depreciation charges for the accepted asset;
• Dt98.01 Kt91.01 – 7500 – the amount of the income portion when using operating systems purchased free of charge;
• Dt68 “Calculations for income tax” Kt99 “Profits and losses” - 1500 rubles. (7500x20%) – the amount of a permanent tax asset is accrued from the amount of property income, without increasing the income tax.

Advice to managers: when transferring fixed assets from a parent company to a subsidiary for free use, income tax does not increase, provided that:

• The founder's share in the authorized capital is over 50%;
• The OS will not be given to third parties for one year.

If such an operation does not fit these conditions, managers should clearly state in the protocol general meeting all participants that the purpose of transferring fixed assets to a subsidiary is to increase net assets.

Example No. 2: accounting of fixed assets transferred free of charge from one of the founders.

Vesna LLC acquired the OS from the founder free of charge. The founder's share in the authorized capital is more than 50%. An independent appraisal commission assessed the transferred fixed asset at market prices in the amount of RUB 598,000.

OS delivered to the destination transport company under the contract for the provision of transport services, the amount of work performed amounted to 6,750 rubles. (including VAT 1030 RUR). Restoration work was carried out by contractors, the amount of services amounted to 31,500 rubles. (including VAT RUB 4,805).

Upon receipt of accompanying documents, an OS acceptance and transfer certificate is drawn up and accounting entries are made:

• Dt08 Kt98.02 – 598,000 rub. – the market value of the OS on a free basis, which is included in the OS;
• Dt08 Kt60 – (6750-1030)+(31500-4805)=32415 rub. – additional costs for fixed assets are reflected (transportation and installation excluding VAT);
• Dt19 Kt60 - 1030+4805=5835 rub. – VAT reflected;
• Dt01 KT08 – 598,000+32415=630,415 rub. – acceptance for accounting and commissioning;
• Dt68 “VAT” Kt19 – 5835 rub. – deduction of VAT on additional costs;

For depreciation charges, the amount is 630,415 rubles. The useful life of the asset is 96 months. Let's calculate depreciation:

• Dt23,25,26,44 Kt02 – 630,415/96 (months) = 6566.83 rub.;
• Dt98.1 Kt91.01 – 6566.83 rub. – the income amounts of the asset received free of charge are taken into account;

In our case, income does not arise during tax accounting, which means that when maintaining accounting, every month the accountant, as depreciation charges are calculated, makes a new entry in the accounting register:

• Dt68 “Calculations for income tax” Kt99 “Permanent tax assets” - 6566.83x20% = 1313.37 rubles. – reflects the amount of OS income accepted from the founder, without charging income tax.

It is important to take into account that the company does not have the right to transfer fixed assets on the basis of free use if the transferor and receiver legal entities there is the same founder, manager, etc. It is not prohibited to carry out such a transaction between different founders of companies.

Example No. 3: accounting for the gratuitous transfer of fixed assets with charitable assistance.

The company Master LLC decided to provide charitable assistance to a medical institution by donating equipment with an initial cost of 80,000 rubles. at the time of transfer of equipment, the depreciation amount was 11,000 rubles.

The following entries are entered into accounting:

• Dt01 “Retirement of fixed assets” Kt01 “Fixed assets” - 80000 - written-off amount of equipment;
• Dt02 Kt01 “Disposal of fixed assets” - 11000 - depreciation of equipment;
• Dt91 Kt01 – 69000 – the balance amount for the equipment is written off;
• Dt99 Kt91 – 69000 – reflection of loss from the transfer of equipment.

Free transfer of assets to assist charitable purposes can be carried out for the following cases:

• Social assistance and protection of the population;
• Help for victims after a natural disaster;
• Help to protect children, mothers and fathers;
• Assistance for educational, cultural, scientific institutions;
• Help for preventive work to improve people's health;
• Assistance in the field of sports physical education;
• Help for the conservation of nature and wildlife.

It is important to know: charitable donations are exempt from VAT. The basis for this requires a package of documents:

1. Agreement for charitable purposes, transferred assets free of charge;
2. Documents that confirm the result of the transfer and acceptance of assets by the recipient organization;
3. Documents confirming the intended intended use of the transferred asset.

If an organization is the recipient of fixed assets free of charge, then this is considered a receipt of assets and an increase in the income side of the enterprise. If an enterprise transfers assets, then this is considered a disposal of fixed assets and a loss for the organization.

Vadim SHUSTOV
Auditor LLC "Elkod-audit"

The gratuitous transfer of property in civil law is regulated by the rules on donation. Under a gift agreement, one party transfers or undertakes to transfer ownership of property to the other party free of charge (Article 572 of the Civil Code of the Russian Federation). Commercial organizations can give each other property worth no more than 5 minimum wages (clause 4 of Article 575 of the Civil Code of the Russian Federation), i.e. 500 rubles. If at least one of the parties to the gift agreement is a non-profit organization or an individual, then the value of the gift is not limited in any way.
If a commercial organization nevertheless received property over 5 minimum wages free of charge from another similar company, then this transaction may be declared invalid if one of the interested parties files a claim in court. This can be done by interested parties (owners of the organization, shareholders, etc.) within 10 years from the date of gratuitous transfer of property (clause 1 of Article 181 of the Civil Code of the Russian Federation).
If the transaction is declared invalid, the organization will be obliged to return to the donor all property received from him. It happens that by this time such property is no longer listed in the organization. Then the company will have to reimburse the cost of the transferred property in money (Clause 2 of Article 167 of the Civil Code of the Russian Federation).

Determining the value of property
When determining the value of property received free of charge for the purposes of accounting should be guided by the rules of the Accounting Regulations and financial statements in the Russian Federation and PBU 9/99 “Income of the organization” (approved accordingly by orders of the Ministry of Finance of Russia dated 07.29.98 No. 34n and dated 05.06.99 No. 32n). Assets received free of charge are accepted for accounting at market value. It is determined on the basis of prices in force on the date of their acceptance for accounting for this or a similar type of asset (clause 10.3 of PBU 9/99).
In most cases, the value of property received free of charge when calculating income tax is recognized as non-operating income (clause 8 of Article 250 of the Tax Code of the Russian Federation). In this case, income is assessed based on market prices determined taking into account the provisions of Article 40 of the Tax Code of the Russian Federation. In this case, the market price must be confirmed documented or through an examination.
Sources of information on market prices can be considered:

• official information on stock exchange quotations (completed transactions) on the exchange closest to the location (place of residence) of the seller (buyer), and in the absence of transactions on the specified exchange or upon sale (purchase) on another exchange - information on exchange quotations (completed transactions) on this another exchange or information on international exchange quotations, as well as the quotation of the Russian Ministry of Finance for government securities and obligations;
• information government agencies according to statistics, bodies regulating pricing and other authorized bodies;
• information published in printed publications or brought to the attention of the public by the media.

The cost of property (including fixed assets) received free of charge by an organization, with the exception of those named in Article 251 of the Tax Code of the Russian Federation, for tax purposes is recognized as non-operating income at the time the parties sign the acceptance certificate (subclause 1, clause 4, article 271 of the Tax Code of the Russian Federation ).
The received property is included in the depreciable property if it meets the requirements of paragraph 1 of Article 256 of the Tax Code of the Russian Federation, namely, it belongs to the organization as a property and is used to generate income. In addition, it should not be on the list of property that cannot be depreciated (clause 2 of Article 256 of the Tax Code of the Russian Federation).
Tax accounting does not accrue depreciation on fixed assets received free of charge from organizations if the authorized capital of the receiving (transferring) party consists of at least 50% of the contribution of the transferring (receiving) organization. Fixed assets received free of charge from an individual are also not subject to depreciation, provided that the authorized capital of the receiving party consists of at least the same 50% of the contribution of this individual. Hence, property received free of charge is not subject to depreciation, the cost of which is not taken into account when determining the tax base for calculating income tax (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation).
For tax accounting purposes, depreciation can be calculated using two methods - linear or non-linear (Article 259 of the Tax Code of the Russian Federation). The linear method is necessarily applied to buildings, structures, transmission devices included in the eighth - tenth depreciation groups, regardless of the timing of commissioning of these objects. For other fixed assets, the taxpayer has the right to apply one of two methods. The selected depreciation calculation method cannot be changed during the entire period of depreciation calculation for this object.
Depreciation amounts in accounting and tax accounting may differ even with the same initial cost. To avoid this, it is necessary to use the linear depreciation method in both accounts, while establishing the same useful life of the object.
Example 3 Let's use the conditions of example 1. In tax accounting, at the time of commissioning of a donated computer, a linear depreciation method and its useful life of 5 years are established (the computer according to the Classification of fixed assets included in depreciation groups, approved by Decree of the Government of the Russian Federation dated January 1, 2002 No. 1, is included in the third depreciation group with a service life of 3 to 5 years).
The certificate received from the non-profit organization indicates the period of its operation before transfer - 1 year. The Tax Code of the Russian Federation allows, when purchasing used fixed assets, to reduce their useful life by the number of years (months) of operation of this property by the previous owners (Clause 12, Article 259 of the Tax Code of the Russian Federation). A reduction in the established service life by this amount for objects received free of charge may be met with hostility by employees tax authorities. Therefore, in order to avoid disputes with them, it is advisable not to do this.
The monthly depreciation amount in tax accounting will be 800 rubles/month. (RUB 48,000: 60 months). Starting from December 2002, this amount will reduce the taxable profit of the organization every month. End of example 3.

As mentioned above, in tax accounting the date of signing the act of acceptance and transfer of property transferred free of charge is recognized as the date of receipt of non-operating income. And this applies to both possible methods used in calculating income tax: both accrual and cash.
Example 4 Under the donation agreement, on November 4, 2002, the construction organization ZAO Ornament received from the founder the material - construction sand in the amount of 20 tons, the market value of which was 75,000 rubles. In the same month, 10 tons of sand were written off for production. The remaining 5 tons of sand were used in production in December 2002 and January 2003.
The transfer of material is documented in a transfer and acceptance certificate. When sand arrives at the warehouse, a receipt order is issued. In this case, the following entry is made in accounting:
Debit 10 Credit 98 - 2
- 75,000 rub. - sand transferred free of charge was capitalized at market value.
As sand is used in production, its cost is recognized as non-operating income:
Debit 20 Credit 10
- 37,500 rub. (RUB 75,000: 20 t x 10 t) - sand was written off for production;
Debit 98 - 2 Credit 91-1
- 37,500 rub. - the cost of sand written off for production and received free of charge is taken into account in non-operating income.
Similar entries are made in December and January 2003 in the amount of 18,750 rubles. (RUB 75,000: 20 t x 5 t).
In tax accounting, the total cost of sand donated free of charge is 75,000 rubles. - taken into account in non-operating income in November 2002. End of example 4.

Thus, in the case of gratuitous receipt of raw materials and materials to be used in production, organizations that use the accrual method of determining income at the end of the reporting period may have discrepancies between the accounting and tax accounting data under the article “Non-operating income” in the amount of unused production of property.
In the income tax return, the value of property received free of charge is reflected on line 030 of sheet 02 as part of non-operating income. In addition, based on the results tax period this amount must be entered on line 070 of Appendix 6 to sheet 02 “Non-operating income”.

Tax obligations
The gratuitous transfer (receipt) of property in most cases leads to additional tax obligations of both parties.
The recipient organization's corporate property tax may increase. As is known, this tax is imposed on fixed assets, intangible assets, inventories and costs on the organization’s balance sheet. Moreover, fixed assets and intangible assets are accounted for at their residual value (Article 2 of the Law of the Russian Federation of December 13, 1991 No. 2030-1 “On Enterprise Property Tax”).
When calculating property tax, the residual value of gratuitously transferred fixed assets and intangible assets is taken into account according to accounting data (clause 4 of the instruction of the State Tax Service of Russia dated 06/08/95 No. 33 “On the procedure for calculating and paying enterprise property tax to the budget”). The cost of donated goods and materials will be taken into account in tax calculations only if they were not sold or used before the end of the reporting (tax) period.
The donor also has to deal with the budget. In cases provided for by the Tax Code of the Russian Federation, the gratuitous transfer of property is recognized as a sale (Clause 1, Article 39 of the Tax Code of the Russian Federation). For the purposes of Chapter 21 “Value Added Tax” of the Tax Code of the Russian Federation, the transfer of ownership of goods, results of work performed, and the provision of services free of charge are recognized as the sale of goods (work, services) (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Therefore, the transferring party must pay VAT to the budget on the value of the property transferred free of charge. In this case, the tax base for VAT is its market value (clause 2 of Article 154 of the Tax Code of the Russian Federation).
Example 5 The construction organization OJSC Stroyservice donates materials to the non-profit organization, the book value of which is 40,000 rubles. The amount of VAT paid to the supplier of materials is presented for deduction when they are accepted for accounting - 8,000 rubles. The market price of the transferred materials is 48,000 rubles, including VAT - 8,000 rubles.
The founders of the organization provide for the use of retained earnings from previous years for expenses associated with the gratuitous transfer of property to a non-profit organization.
In the accounting records of the transaction, the transfer of materials free of charge will be reflected as follows:
Debit 84 Credit 10
- 40,000 rub. - donated materials;
Debit 84 Credit 68 subaccount "VAT calculations"
- 8000 rub. - VAT is charged for the free transfer of materials.
Debit 68 subaccount "VAT calculations" Credit 19
- 8000 rub. - VAT on materials previously accepted for deduction is reversed;
Debit 84 Credit 19
- 8000 rub. - VAT paid to the supplier of materials is included in profit. End of example 5.

An invoice is issued by the donor for the market value of the property in two copies. The organization will have to register its copy in the sales book. The recipient does not register this invoice in the purchase book (Clause 11 of the Government of the Russian Federation of December 2, 2000 No. 914). The recipient organization does not have the right to reimburse this amount of tax, since it does not pay for the property received. One of the mandatory conditions for deducting the amount of VAT is its payment to the supplier (Article 171 of the Tax Code of the Russian Federation).
There are also exceptions. Thus, the following are not recognized as subject to VAT:

• transfer, free of charge, of fixed assets to state authorities and management bodies and local self-government bodies, as well as budgetary institutions, state and municipal unitary enterprises;
• transfer of fixed assets, intangible assets and (or) other property to non-profit organizations for the implementation of the main statutory activities not related to business activities.