Donated property not included in income. Free transfer of property. What taxes are subject to the transfer of property? What is more profitable: transfer or donation? Free, but not free

Who will not be pleased with the opportunity to use someone else's property for their own purposes for free, or moreover, to receive it as their own! However, as in any "honey barrel", there is a "fly in the ointment" here. In this case, this is the problem of calculating income tax.

First of all, it should be noted that for the purposes of taxation, it is necessary to distinguish between such concepts as “free receipt of property” and “free receipt of property for use”. In the first case, the property is permanently transferred to the property of the receiving party free of charge. But in the second case, the transfer of ownership of the transferred object does not occur, and the transfer is carried out only for a certain period. That is, after a certain period of time, the receiving party will have to return the property to its owner.

"Own" income

If an organization receives property free of charge, then when calculating income tax, it must reflect its value as part of non-operating income (clause 8, article 250 of the Tax Code). True, like any rule, this statement also turned out to be not without exception, but we will talk about it a little later.

So, the property was received free of charge, that is, free of charge. Then the question arises: how to determine its value, which the company must take into account when taxing profits?

In the already mentioned paragraph of Article 250 of the Tax Code, it is established that the value of such a gift should be assessed on the basis of market prices, determined taking into account the provisions of Article 40 of the Code.

Moreover, if we are talking about depreciable property, then the amount of such an assessment cannot be lower than its residual value. And the cost of works, services or non-depreciable property received free of charge is less than the sum of the costs of their performance, provision, production or acquisition.

In addition, it should be remembered that information on the value of the property received will still have to be documented or by an independent assessment.

Free, but not free

As mentioned above, the provisions of paragraph 8 of Article 250 of the Tax Code apply to property received in ownership. But what if the property is also received free of charge, but not for ownership, but for use?

In the Information Letter of the Presidium of the Supreme Arbitration Court dated December 22, 2005 No. 98, the receipt of property for gratuitous use is equated to the receipt of a property right, which means that the norms of the above paragraph of Article 250 of the Code also apply to the transfer of property for gratuitous use.

Moreover, it should be noted that not only members of the Presidium of the Supreme Arbitration Court came to a similar conclusion, a similar position was also stated in the letter of the Ministry of Finance dated April 4, 2007 No. 03-03-06/4/37.

The Ministry of Finance believes that when taxing profits, a company that uses other people's property free of charge should take into account the income received. However, according to financiers, when determining the tax base for the “profitable” tax, firms can take into account not only the income associated with such property, but also the costs of maintaining it. Of course, subject to the availability of their documentary evidence and economic feasibility (clause 1 of article 252 of the Tax Code).

Now let's try to figure out how, in this case, to evaluate the amount of income received by the company? The procedure for calculating income for this situation is not established in the tax legislation. Therefore, representatives of the Ministry of Finance believe in a letter dated December 11, 2006 No. 03-11-04 / 2/260, organizations have the right to independently determine the procedure for assessing income received from the gratuitous use of other people's property. As an option, financiers suggest using income assessment by analogy with the procedure for determining market prices for goods. However, the final decision still remains with the company itself.

At the same time, in their earlier letter - dated April 19, 2006 No. 03-03-04 / 1/359 - representatives of the Ministry of Finance were much more categorical. They considered that it is imperative to apply the procedure for assessing income, similar to that prescribed in Article 40 of the Tax Code, that is, taking into account market prices. No other options for calculating the amount of income received were discussed in the said letter.

Exception to the rule

As mentioned above, when property is received free of charge, taxable income does not always arise. The exception is the situation described in subparagraph 11 of paragraph 1 of Article 251 of the Tax Code. We are talking about the gratuitous receipt of property from the founder, whose share in the authorized capital of the receiving company is more than 50 percent. Similar rules apply in the opposite situation, when the receiving party owns more than 50 percent of the shares of the transferring party. In this case, there is also no income.

True, the provisions of the mentioned norm of tax legislation apply to property received free of charge only if it is not transferred to third parties within one year. The only exception is money received free of charge. They can be spent by the taxpayer at any time (letter of the Ministry of Finance dated April 19, 2006 No. 03-03-04/1/360).

However, these provisions are applicable when it comes to the gratuitous transfer of property into ownership. If only the right to use the object is transferred, then, despite the existence of the circumstances mentioned in subparagraph 11 of paragraph 1 of Article 251 of the Code, the recipient company will still have to pay. In other words, no matter what share the founder who made such a gift to the company owns, the economic benefit from the gratuitous use of property will need to be calculated and included in non-operating income.

Moreover, even those organizations that do not pay this tax as such due to the implementation of activities subject to UTII will be required to transfer the corresponding amounts of “profitable” tax to the budget in such a situation. This thesis was recently confirmed by specialists from the Ministry of Finance in a letter dated October 22, 2008 No. 03-11-04/3/468. After all, paragraph 7 of Article 346.26 of the Tax Code stipulates that taxpayers engaged in other types of activities along with "imputed" activities are required to keep separate records of property, liabilities and business transactions. So there are no obstacles for the calculation of income tax from the “sane person”.

At the beginning of its activity, each organization needs a kind of financial assistance from the founders. The latter often help their “brainchild” stay afloat by providing all kinds of contributions and interest-free loans. Very often, property is transferred to the society free of charge for ownership or use.

Periodically, there are operations for the gratuitous transfer and receipt of property and property rights from many organizations in the course of their activities. However, when receiving such “gifts”, organizations need to be very careful. Doesn't the obligation to pay tax to the budget arise at the same time? The tax authorities always pay attention to the assistance received free of charge and will not miss the opportunity to replenish the budget.

Donated property as income

The list of income that taxpayers on the simplified tax system must take into account is given in paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation. Structurally, all incomes in it are divided into two large groups:

- income from the sale of goods (works, services), the sale of property and property rights. These incomes must be determined in accordance with Art. 249 of the Tax Code of the Russian Federation;

- non-operating income. They are determined according to Art. 250 Tax Code of the Russian Federation.

This does not take into account income, the list of which is given in Art. 251 Tax Code of the Russian Federation, and dividends, if taxes on them are withheld by tax agents.

AT paragraph 1, paragraph 8 of Art. 250 Tax Code of the Russian Federation it was established that non-operating income includes income in the form of property (works, services) received free of charge or property rights received free of charge, with the exception of income specified in Art. 251 Tax Code of the Russian Federation. According to pp. 11 p. 1 of this article, 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 the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;

- from the organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50% 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% of the contribution (share) of this individual.

note: the received property is not recognized as income for tax purposes, if within a year from the date of its receipt (with the exception of cash) it is not transferred to third parties.

A taxpayer who has received non-depreciable property, works or services free of charge, must assess the income associated with them in the course of taxation based on market prices determined subject to the provisions of the Art. 40 Tax Code of the Russian Federation. The estimate should not be lower than the cost of production (acquisition). This is stated in par. 2 p. 8 Art. 250 Tax Code of the Russian Federation. If depreciable property is acquired free of charge, then the assessment of income must be carried out on the basis of market prices determined taking into account the provisions Art. 40 Tax Code of the Russian Federation, but not lower than those established in accordance with the standards ch. 25 Tax Code of the Russian Federation. It is possible to confirm information on the prices of property (works, services) received free of charge either documented or by conducting an independent assessment.

We note that if the transfer of property or property rights is of an investment nature (a founder's contribution to the authorized capital, a participant's contribution under a simple partnership agreement, etc.), then in this case there is no need to talk about a gratuitous transfer. It is impossible to recognize as gratuitous and the transfer of property on the condition of return (providing a loan or a loan).

The Civil Code establishes some restrictions on the conclusion of a gift agreement. So, donation is prohibited between commercial organizations. An exception is when the value of the gift does not exceed 5 minimum wages. This is stated in paragraph 4 of Art. 575 of the Civil Code of the Russian Federation. But if one of the parties is a non-profit organization or an individual, then the donation agreement can be concluded completely freely.

loan agreement

Often gratuitous transfer of property is carried out without transfer of ownership, but for a certain period. In this case, a contract for gratuitous use (loans) is concluded. Does the receiving party need to account for income? Yes need. This position was expressed by the Ministry of Finance in lettersfrom17.02.200 6 № 03-03-04/1/125 and from19.04.200 6 № 03-03-04/1/359 . The Presidium of the Supreme Arbitration Court of the Russian Federation also agrees with it, which in paragraph 2 of the Information letter dated 22.12.2005 No. 98 expressed a similar approach.

Question: The company is on USNO and has entered into an agreement for the free use of non-residential premises. Does the LLC have an object of taxation in this case for the purpose of applying ch. 26.2 of the Tax Code of the Russian Federation? If so, to what extent?

In accordance with paragraph 1 of Art. 346.15 "Procedure for determining income" of the Tax Code of the Russian Federation taxpayers when determining the object of taxation, along with income from sales, determined in accordance with Art. 249 of the Tax Code of the Russian Federation, take into account non-operating income, determined in accordance with Art. 250 Tax Code of the Russian Federation. This does not include income from Art. 251 Tax Code of the Russian Federation.

In this situation, the organization uses the property on the basis of a loan agreement. Paragraph 1 of Art. 689 of the Civil Code of the Russian Federation it is stipulated that under a gratuitous use agreement (loan agreement), one party (the lender) undertakes to transfer or transfers a thing for gratuitous temporary use to the other party (borrower), and the latter undertakes to return the same thing in the condition in which it received it, taking into account normal wear and tear or in the condition stipulated by the contract. In accordance with item 2 of this article, the rules on the lease agreement are applied to the contract for gratuitous use, respectively.

Upon receipt of property under a contract for gratuitous use, the organization receives the right to use this property free of charge. Taking into account the above, for the purposes of taxation of profit, the receipt of property for gratuitous use should be considered as a gratuitous receipt of property rights. Income in the form of gratuitously received property rights is subject to inclusion in the non-operating income of the borrower on the basis of paragraph 8 of Art. 250 Tax Code of the Russian Federation.

Upon receipt of property (works, services) free of charge, the assessment of income is carried out on the basis of market prices determined taking into account Art. 40 Tax Code of the Russian Federation, but not lower than determined in accordance with ch. 25 Tax Code of the Russian Federation residual value - for depreciable property and not less than the cost of production (acquisition) - for other property (work performed, services rendered). Information on prices must be confirmed by the taxpayer - the recipient of property (works, services) documented or by an independent assessment.

Installed paragraph 8 of Art. 250 Tax Code of the Russian Federation the principle of determining income in case of gratuitous receipt of property, which consists in its assessment based on market prices determined taking into account Art. 40 Tax Code of the Russian Federation, is also applied in the assessment of property rights, including the right to use a thing. Thus, a taxpayer who has received property for gratuitous use under an agreement includes in non-operating income income in the form of a gratuitously received right to use property, determined on the basis of market rental prices for identical property.

This conclusion is confirmed in paragraph 2 of the Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Ch. 25 of the Tax Code of the Russian Federation ( Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 No. 98).

Interest free loan

Sometimes organizations receive interest-free loans. For accountants in this situation, the question very often arises: is it necessary to tax the material benefit received from savings on interest? Let's try to figure it out.

Subparagraph 8 of paragraph 1 of Art. 250 Tax Code of the Russian Federation refers to non-operating income income in the form of property (works, services) received free of charge or property rights, except for the cases specified in Article 251 of this Code. If the taxpayer received an interest-free loan, does he have an economic benefit from the free use of the funds received? If so, should he include it in the taxable base?

The concept of gratuitously received property (works, services) for the purposes of calculating income tax is given in paragraph 2 of Art. 248 Tax Code of the Russian Federation: property (works, services) or property rights are considered received free of charge, if the receipt of this property (works, services) or property rights is not associated with the recipient's obligation to transfer property (property rights) to the transferor (perform work for the transferor, provide the transferor service person).

Therefore, the important factors of a gratuitous transfer are the transfer of ownership to the donee and the absence of a counter obligation on the donee. According to the opinion of the tax authorities, expressed in the letters, the taxpayer receives no income when receiving an interest-free loan. For example, from Letters of the Federal Tax Service for Moscow dated 03.11.2004 No. 26-12 / 71407 It follows that the temporary use of borrowed funds under an interest-free loan agreement is not considered as the basis for the day the non-operating income of the organization arises in the form of material benefits from savings on interest. A similar point of view is expressed in Letter No. 04-23/3244/G557 dated February 27, 2004 from the UMNS for Moscow “On income tax”.

But often tax inspectors recognize the appearance of a material benefit for the borrower and demand that it be taxed, which is confirmed by arbitration practice. In their opinion, an interest-free loan is a gratuitous service, and the taxpayer receives non-operating income in the form of material benefits from savings on interest. The amount of benefit must be determined by the amount of interest accrued on the basis of the refinancing rate established by the Central Bank of the Russian Federation during the period of use of borrowed funds.

You can argue with fiscals. In order to show the shortcomings of their position, let us focus on two points. First, let's ask ourselves a question: can an interest-free loan be considered a gratuitous service? Services are provided under a contract for the provision of services for a fee ( ch. 39 of the Civil Code of the Russian Federation). In accordance with paragraph 1 of Art. 779 of the Civil Code of the Russian Federation under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

The concept of service is given in paragraph 5 of Art. 38 Tax Code of the Russian Federation: it is recognized as an activity, the results of which do not have a material expression, are realized and consumed in the process of implementing this activity.

Relations under an interest-free loan agreement are regulated ch. 42 "Loan and Credit" of the Civil Code of the Russian Federation. According to paragraph 1 of Art. 807 of the Civil Code of the Russian Federation under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other things received by him of the same kind and quality .

According to paragraph 1 of Art. 809 of the Civil Code of the Russian Federation the lender has the right to receive interest from the borrower on the loan amount, but not necessarily. Other (free of charge) may be provided by law or contract.

Based on the foregoing, we can conclude that the relationship under the loan agreement does not contain signs of a service. It should be noted that the need for a clear distinction between these two contractual types comes from the highest judicial instance. The Presidium of the Supreme Arbitration Court of the Russian Federation announced its approach to this problem Decree of 03.08.2004 No. 3009/04. A similar point of view was expressed by the tax authorities. So, UMNS for the city of Moscow Letter dated27.02.200 4 No. 04-23/3244/G557 pointed out: civil law does not consider the payment of interest under a loan agreement as a payment for services rendered, distinguishing between an agreement on the provision of a service and an agreement on the transfer of funds under a loan agreement.

Now let's ask one more question: can the material benefit from saving on interest for using an interest-free loan be recognized as income for tax purposes? The Tax Code recognizes as income an economic benefit in cash or in kind, taken into account if it is possible to assess it, to the extent that such benefit can be assessed and determined in accordance with the chapters “Income tax on individuals”, “tax on profit (income) of organizations …” ( paragraph 1 of Art. 41 Tax Code of the Russian Federation). However ch. 25 The Code does not consider the material benefit from savings on interest for the use of borrowed funds as income subject to taxation and, accordingly, does not contain rules for its recognition and accounting. Therefore, the material benefit in question cannot be recognized as income for tax purposes.

In addition to the above, we note that according to pp. 10 p. 1 art. 251 Tax Code of the Russian Federation the taxable base does not include income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of borrowing, including debt securities), as well as funds or other property received in repayment of such loans.

Despite the fact that some fiscal officials are trying to impose economic benefits from interest-free loans, arbitration practice unambiguously resolves the issue in favor of taxpayers. Thus, the Federal Antimonopoly Service of the Volga District in Decree No. А57-3029/05-7 dated January 18, 2006 pointed out that Chapter 25 of the Tax Code of the Russian Federation "Tax on profit (income) of organizations" does not provide for such a form of economic benefit as savings on interest, and does not establish the procedure for its determination.

Thus, an interest-free loan as an obligation obliging the borrower to return the funds received under the loan agreement is not considered an object of income taxation.

Similar conclusions have been reached by other courts. Thus, taxpayers, in the event of disagreements with the tax authorities regarding the taxation of loans, have real chances to prove their case in court and win the dispute.

When the article was published, the finance department issued a letter in favor of the taxpayer. Letter dated 02.04.2007 No. 03-11-04/2/78: due to the fact that Art. 250 of the Code does not provide for the inclusion in the non-operating income of taxpayers of amounts of material benefit under interest-free loan agreements, organizations applying the simplified taxation system should not determine the amount of material benefit under such agreements.

Accounting and taxation of property received free of charge

With the introduction of Chapter 25 of the Tax Code of the Russian Federation from January 1, 2002, the procedure for recording transactions for the gratuitous receipt of property in accounting and tax accounting is different.

For the first time in tax legislation, Article 248 of the Tax Code of the Russian Federation defines property received free of charge. According to paragraph 2 of the article, property (works, services) or property rights are considered received free of charge, if its receipt is not associated with the recipient's obligation to transfer other property, perform work, or provide services to the transferor.

Such a clarification of the concept of gratuitously received property allows the taxpayer to write off accounts payable with an expired limitation period, and not consider it gratuitously received property.

Recall that the gratuitous transfer of any thing to the ownership of the organization must be formalized by a donation agreement (clause 1 of article 572 of the Civil Code of the Russian Federation). When making a transaction, it should be borne in mind that donations between commercial organizations cannot exceed five minimum wages established by law, with the exception of ordinary gifts. In this case, the donation agreement may be declared invalid by the court (Article 166 of the Civil Code of the Russian Federation).

Initial cost

The initial cost of property received free of charge in accounting is understood as the current market value as of the date the object was accepted for accounting (clause 9 PBU 5/01 "Accounting for inventories", clause 10 PBU 6/01 "Accounting for fixed assets" and PBU 14/2000 "Accounting for intangible assets"). Moreover, RAS 5/01 defines the current market value for accounting purposes as the amount of money that can be received as a result of the sale of these assets.

It should be noted that the costs of delivery and bringing it into a usable condition increase the book value of the property received free of charge (clause 12 PBU 6/01, clause 8 PBU 14/2000, clause 11 PBU 5/01).

In tax accounting, the assessment of property received free of charge for an organization is carried out on the basis of market prices determined taking into account the provisions of Article 40 of the Tax Code of the Russian Federation, but not lower than the residual value if it is depreciable property (previously clause 2.7 of the Instruction of the Ministry of Taxes of Russia dated 15.06.2000 N 62), and production costs (acquisition) - for goods (works, services).

In addition, information on prices must be confirmed by the taxpayer - the recipient of property (works, services) documented or by an independent assessment (clause 8, article 250 of the Tax Code of the Russian Federation).

As you can see, the requirements for accounting and tax accounting are generally similar. Moreover, accountants used to confirm the market price using official sources of information, including those obtained from the statistical authorities for the region, stock quotes, and an independent assessment. In accounting, these requirements are established by clause 23 of the Regulation on Accounting and Accounting in the Russian Federation (Order of the Ministry of Finance of the Russian Federation of July 29, 1998 N 34n).

However, unlike tax accounting, price limits are not established by accounting regulations.

In accounting, in accordance with paragraph 8 of PBU 9/99 "Income of the organization", property received by the organization free of charge is recognized as its non-operating income. The value of assets received free of charge until they are used for the needs of the organization is reflected in deferred income. Recognition of non-operating income is made as these assets are released for the purpose of the organization's activities.

In tax accounting, property transferred to the taxpayer free of charge also refers to non-operating income of the organization (Article 250). But, in addition, its value is immediately taken into account when calculating the tax base (on an accrual basis).

The exceptions are targeted revenues, as well as property received by budgetary institutions by decision of executive authorities at all levels;

received by state (non-state) and municipal educational institutions, equipment used exclusively for educational purposes (before January 1, 2002, this norm was not established, but was partially applied); funds received in the form of gratuitous assistance (assistance) in the manner prescribed by the Federal Law on gratuitous assistance (assistance), and other special cases. Article 4 of this law establishes that in case of misuse of gratuitous aid, its recipient is obliged to accrue and pay to the budgets of all levels, as well as transfer the amount of penalties for late payment of income tax.

Paragraph 11 of Article 251 of the Tax Code of the Russian Federation states that property received by a Russian legal entity - a taxpayer from:

An organization that owns at least 50 percent of the authorized capital of the receiving party;

Organizations that are at least 50 percent owned by the receiving party;

An individual who owns at least 50 percent of the authorized capital of the receiving organization. This paragraph changes the previously existing procedure when funds received from individuals were not included in the tax base.

At the same time, the received property is not recognized as income for tax purposes only if, within one year from the date of its receipt, the said property (except for cash) is not transferred to third parties.

If these conditions are met, no income tax base arises.

Example 1

In March 2002, under a donation agreement, a commercial organization received a computer from an individual valued at 12,000 rubles. organization consists of 60% of the contribution of this individual. At the time of commissioning, its useful life is 36 months. The straight-line method of depreciation is used in accounting and tax accounting.

The following entries will be made in the accounting records:

Debit 08 Credit 98-2

- 12,000 rubles. - a computer received free of charge is accepted for accounting,

Debit 01 Credit 08

- 12,000 rubles. - the computer is put into operation,

Debit 20 Credit 02

- 333.33 rubles. (12,000 rubles x 1: 36 months) - depreciation has been accrued (the data in the tax registers will match),

Debit 98-2 Credit 91-1

- 333.33 rubles. - part of deferred income is reflected in non-operating income as depreciation is accrued.

In tax accounting, the conditions specified in paragraph 11 of Article 251 of the Tax Code of the Russian Federation are met. Therefore, the amount of 12,000 rubles is not subject to income tax if the computer is not transferred to third parties within a year.

Example 2

The computer was received from the founder - an individual, whose contribution to the authorized capital is 49 percent.

The amount of 12,000 rubles is included in non-operating income on an accrual basis. According to Article 271 of the Tax Code of the Russian Federation, the date of receipt of income is the date of signing by the parties of the act of acceptance and transfer of property (works, services) received free of charge.

Example 3

The computer is retired before the expiration of 1 year from the date of its receipt.

The tax base in this case arises not at the time of disposal of the computer, but at the time of its receipt (Article 271 of the Tax Code of the Russian Federation). Therefore, the tax must be paid at the time of signing the act of its receipt.

Depreciation

Depreciation of fixed assets and intangible assets received free of charge in accounting is charged in one of the ways specified in PBU 6/01 or 14/2000, and enshrined in the accounting policy of the organization.

Is property received free of charge depreciated in tax accounting? On the one hand, yes, since depreciable property for tax purposes includes property that is owned by the taxpayer and used by him to generate income (clause 1, article 256 of the Tax Code of the Russian Federation). But on the other hand, there is nothing to depreciate on property received free of charge. Why? Because a situation may arise when the initial cost of property received free of charge will be equal to zero. Let's explain.

The initial cost of depreciable property is formed in accordance with Article 257 of the Tax Code of the Russian Federation. It states that the cost of a depreciable fixed asset is defined as the sum of the costs of acquiring it, constructing it, manufacturing it, and bringing it to a condition in which it is fit for use. The cost excludes the amount of taxes included in expenses. Thus, if an organization does not have the costs of bringing a donated fixed asset to a condition in which it is suitable for use, the initial cost of such a fixed asset for depreciation purposes will be zero.

It turns out that we define the amount of income when receiving a fixed asset free of charge as the market value of such a fixed asset, but for the purpose of depreciation, the initial cost of the object is zero.

The definition of property received free of charge can be found in the Civil Code of the Russian Federation. In most cases, the transfer of property without commercial overtones is considered as a gift. 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.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and FOR FREE!

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, the current legislation introduced a number of restrictions on the commission of an 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 allowed. There are much fewer prohibitions in this regard in the tax code. The amount of taxes to be levied largely depends 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 donated property

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

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

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

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

• from various organizations, subject to the composition of the beneficiary's deposit of more than 50% of the deposit of the transferring party;
• 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 has received property free of charge, but one 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 should be estimated based on market price indicators, which are determined taking into account Art. 40 of the Tax Code of the Russian Federation. However, their size cannot be lower than the norms established in Chapter 25 of the Tax Code of the Russian Federation.

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

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

It is not uncommon for a citizen or a company to receive an interest-free loan. At the same time, as such, it does not arise from income. Accordingly, there is no need to pay tax.

This is confirmed by numerous statements of 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 referred to as a gratuitous service. It is believed that the citizen receives income. It represents the benefit of savings on depositing interest.

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

All the subtleties 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. Moreover, its quantity should be equal to that received.

Individuals

They pay a kind of deduction to the budget, provided that the size of the contribution of the transferring party exceeds the norms established by law.

Organizations

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

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

Income taxes include funds received by an organization through the sale of goods and services, as well as income received in another way.

Property or rights to it fall under the act of donation to me, provided that these assets are received with the recipient's obligations to the transferor. Property received on a gratuitous basis is treated by tax legislation as non-operating income.

Sum

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

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

In most cases, 18% of the funds are transferred to the regional budget, and 2% to the federal budget.

Detailed information on the tax rate applicable in the territory of the subject of the Russian Federation can be clarified on the website of the Federal Tax Service.

Procedure and terms of payment

The authorities of the constituent entities of the Russian Federation often adopt various laws that somewhat adjust the procedure and terms for tax collection.

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

The legislation undergoes changes from time to time, 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 state portals, as well as personally contacting the tax office.

At the beginning of its activity, each organization needs a kind of financial assistance from the founders. The latter often help their “brainchild” stay afloat by providing all kinds of contributions and interest-free loans. Very often, property is transferred to the society free of charge for ownership or use. Periodically, there are operations for the gratuitous transfer and receipt of property and property rights from many organizations in the course of their activities. However, when receiving such “gifts”, organizations need to be very careful. Doesn't the obligation to pay tax to the budget arise at the same time? The tax authorities always pay attention to the assistance received free of charge and will not miss the opportunity to replenish the budget.

Donated property as income

The list of income that taxpayers who are on the simplified taxation system must take into account is given in paragraph 1 of Art. 346.15 of the Tax Code of the Russian Federation. Structurally, all incomes in it are divided into two large groups:

- income from the sale of goods (works, services), the sale of property and property rights. These incomes must be determined in accordance with Art. 249 of the Tax Code of the Russian Federation;

- non-operating income. They are determined in accordance with Art. 250 of the Tax Code of the Russian Federation.

This does not take into account income, the list of which is given in Art. 251 of the Tax Code of the Russian Federation, and dividends, if taxes from them are withheld by tax agents.

In paragraph 1, paragraph 8, Art. 250 of the Tax Code of the Russian Federation, it is established that non-operating income includes income in the form of property (works, services) received free of charge or property rights received free of charge, with the exception of income specified in Art. 251 of the Tax Code of the Russian Federation. According to paragraphs. 11, paragraph 1 of this article, 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 the organization, if the authorized (share) capital (fund) of the receiving party consists of more than 50% of the contribution (share) of the transferring organization;

- from the organization, if the authorized (share) capital (fund) of the transferring party consists of more than 50% 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% of the contribution (share) of this individual.

note: the received property is not recognized as income for tax purposes, if within a year from the date of its receipt (with the exception of cash) it is not transferred to third parties.

A taxpayer who has received free of charge property that is not depreciable, work or services, when taxing, must assess the income associated with them based on market prices determined taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation. The estimate should not be lower than the cost of production (acquisition). This is stated in par. 2 p. 8 Art. 250 of the Tax Code of the Russian Federation. If depreciable property is acquired free of charge, then the assessment of income must be carried out on the basis of market prices determined taking into account the provisions of Art. 40 of the Tax Code of the Russian Federation, but not lower than those established in accordance with the norms of Ch. 25 of the Tax Code of the Russian Federation. It is possible to confirm information on the prices of property (works, services) received free of charge either documented or by conducting an independent assessment.

We note that if the transfer of property or property rights is of an investment nature (a founder's contribution to the authorized capital, a participant's contribution under a simple partnership agreement, etc.), then in this case there is no need to talk about a gratuitous transfer. It is impossible to recognize as gratuitous and the transfer of property on the condition of return (providing a loan or a loan).

The Civil Code establishes some restrictions on the conclusion of a gift agreement. So, donation is prohibited between commercial organizations. An exception is when the value of the gift does not exceed 5 minimum wages. This is stated in paragraph 4 of Art. 575 of the Civil Code of the Russian Federation. But if one of the parties is a non-profit organization or an individual, then the donation agreement can be concluded completely freely.

loan agreement

Often gratuitous transfer of property is carried out without transfer of ownership, but for a certain period. In this case, a contract for gratuitous use (loans) is concluded. Does the receiving party need to account for income? Yes need. This position was expressed by the Ministry of Finance in letters dated February 17, 2006 No. 03-03-04/1/125 and dated April 19, 2006 No. 03-03-04/1/359. The Presidium of the Supreme Arbitration Court of the Russian Federation also agrees with it, which, in paragraph 2 of the Information Letter dated December 22, 2005 No. 98, expressed a similar approach.

Question: The company is on USNO and has entered into an agreement for the free use of non-residential premises. Does the LLC have an object of taxation in this case for the purpose of applying Ch. 26.2 of the Tax Code of the Russian Federation? If so, to what extent?

In accordance with paragraph 1 of Art. 346.15 "Procedure for determining income" of the Tax Code of the Russian Federation, taxpayers, when determining the object of taxation, along with income from sales, determined in accordance with Art. 249 of the Tax Code of the Russian Federation, take into account non-operating income, determined in accordance with Art. 250 of the Tax Code of the Russian Federation. This does not take into account the income provided for in Art. 251 of the Tax Code of the Russian Federation.

In this situation, the organization uses the property on the basis of a loan agreement. Paragraph 1 of Art. 689 of the Civil Code of the Russian Federation provides that under a gratuitous use agreement (loan agreement), one party (the lender) undertakes to transfer or transfers a thing for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same thing in the condition in which it received it , subject to normal wear and tear or in the condition stipulated by the contract. In accordance with paragraph 2 of this article, the rules on the lease agreement are applied to the gratuitous use agreement, respectively.

Upon receipt of property under a contract for gratuitous use, the organization receives the right to use this property free of charge. Taking into account the above, for the purposes of taxation of profit, the receipt of property for gratuitous use should be considered as a gratuitous receipt of property rights. Income in the form of property rights received free of charge is subject to inclusion in the non-operating income of the borrower on the basis of clause 8 of Art. 250 of the Tax Code of the Russian Federation.

Upon receipt of property (works, services) free of charge, the assessment of income is carried out on the basis of market prices determined taking into account Art. 40 of the Tax Code of the Russian Federation, but not lower than determined in accordance with Ch. 25 of the Tax Code of the Russian Federation of the residual value - for depreciable property and not less than the cost of production (acquisition) - for other property (work performed, services rendered). Information on prices must be confirmed by the taxpayer - the recipient of property (works, services) documented or by an independent assessment.

Established by paragraph 8 of Art. 250 of the Tax Code of the Russian Federation, the principle of determining income when receiving property free of charge, which consists in its assessment based on market prices determined taking into account Art. 40 of the Tax Code of the Russian Federation, is also applied in the assessment of property rights, including the right to use a thing. Thus, a taxpayer who has received property for gratuitous use under an agreement includes in non-operating income income in the form of a gratuitously received right to use property, determined on the basis of market rental prices for identical property.

This conclusion is confirmed in paragraph 2 of the Review of the practice of resolving cases by arbitration courts related to the application of certain provisions of Ch. 25 of the Tax Code of the Russian Federation (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 22, 2005 No. 98).

Interest free loan

Sometimes organizations receive interest-free loans. For accountants in this situation, the question very often arises: is it necessary to tax the material benefit received from savings on interest? Let's try to figure it out.

Subparagraph 8 of paragraph 1 of Art. 250 of the Tax Code of the Russian Federation refers to non-operating income income in the form of property (works, services) received free of charge or property rights, except for the cases specified in Article 251 of this Code. If the taxpayer received an interest-free loan, does he have an economic benefit from the free use of the funds received? If so, should he include it in the taxable base?

The concept of gratuitously received property (works, services) for the purposes of calculating income tax is given in paragraph 2 of Art. 248 of the Tax Code of the Russian Federation: property (works, services) or property rights are considered received free of charge if the receipt of this property (works, services) or property rights is not associated with the recipient's obligation to transfer property (property rights) to the transferor (perform work for the transferor provide services to the transferor).

Therefore, the important factors of a gratuitous transfer are the transfer of ownership to the donee and the absence of a counter obligation on the donee. According to the opinion of the tax authorities, expressed in the letters, the taxpayer receives no income when receiving an interest-free loan. For example, Letter No. 26-12/71407 dated 03.11.2004 of the Federal Tax Service for Moscow states that the temporary use of borrowed funds under an interest-free loan agreement is not considered as the basis for the day when non-operating income of the organization arises in the form of material benefits from savings on interest. A similar point of view was expressed in Letter No. 04-23/3244/G557 of 27.02.2004 “On income tax” by the UMNS for Moscow.

But often tax inspectors recognize the appearance of a material benefit for the borrower and demand that it be taxed, which is confirmed by arbitration practice. In their opinion, an interest-free loan is a gratuitous service, and the taxpayer receives non-operating income in the form of material benefits from savings on interest. The amount of benefit must be determined by the amount of interest accrued on the basis of the refinancing rate established by the Central Bank of the Russian Federation during the period of use of borrowed funds.

You can argue with fiscals. In order to show the shortcomings of their position, let us focus on two points. First, let's ask ourselves a question: can an interest-free loan be considered a gratuitous service? Services are provided within the framework of an agreement on the provision of services for a fee (Chapter 39 of the Civil Code of the Russian Federation). In accordance with paragraph 1 of Art. 779 of the Civil Code of the Russian Federation, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services.

The concept of service is given in paragraph 5 of Art. 38 of the Tax Code of the Russian Federation: it is recognized as an activity, the results of which do not have a material expression, are realized and consumed in the process of carrying out this activity.

Relations under an interest-free loan agreement are regulated by Ch. 42 "Loan and Credit" of the Civil Code of the Russian Federation. According to paragraph 1 of Art. 807 of the Civil Code of the Russian Federation, under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower), and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality.

According to paragraph 1 of Art. 809 of the Civil Code of the Russian Federation, the lender has the right to receive interest from the borrower on the loan amount, but not at all. Other (free of charge) may be provided by law or contract.

Based on the foregoing, we can conclude that the relationship under the loan agreement does not contain signs of a service. It should be noted that the need for a clear distinction between these two contractual types comes from the highest judicial instance. The Presidium of the Supreme Arbitration Court of the Russian Federation announced its approach to this problem in Resolution No. 3009/04 dated August 3, 2004. A similar point of view was expressed by the tax authorities. Thus, the UMNS for the city of Moscow, in Letter No. 04-23/3244/G557 dated February 27, 2004, indicated: civil law does not consider the payment of interest under a loan agreement as a payment for services rendered, distinguishing between an agreement on the provision of a service and an agreement on the transfer of funds for loan agreement.

Now let's ask one more question: can the material benefit from saving on interest for using an interest-free loan be recognized as income for tax purposes? The Tax Code recognizes as income an economic benefit in cash or in kind, taken into account if it is possible to assess it, to the extent that such benefit can be assessed and determined in accordance with the chapters “Income tax on individuals”, “tax on profit (income) of organizations ... "(Clause 1, Article 41 of the Tax Code of the Russian Federation). However, ch. 25 of the Code does not consider the material benefit from savings on interest for the use of borrowed funds as income subject to taxation and, accordingly, does not contain rules for its recognition and accounting. Therefore, the material benefit in question cannot be recognized as income for tax purposes.

In addition to the above, we note that in accordance with paragraphs. 10 p. 1 art. 251 of the Tax Code of the Russian Federation are not included in the taxable base income in the form of funds or other property received under credit or loan agreements (other similar funds or other property, regardless of the form of borrowing, including debt securities), as well as funds or other property, received in repayment of such borrowings.

Despite the fact that some fiscal officials are trying to tax the economic benefits of interest-free loans, arbitration practice clearly decides the issue in favor of taxpayers. Thus, the Federal Antimonopoly Service of the Volga District, in Decree No. A57-3029 / 05-7 of January 18, 2006, indicated that Chapter 25 of the Tax Code of the Russian Federation "Tax on profit (income) of organizations" does not provide for such a form of economic benefit as savings on interest, and does not establish the order of its definition.

Thus, an interest-free loan as an obligation obliging the borrower to return the funds received under the loan agreement is not considered an object of income taxation.

Similar conclusions have been reached by other courts. Thus, taxpayers, in the event of disagreements with the tax authorities regarding the taxation of loans, have real chances to prove their case in court and win the dispute.

When the article was published, the finance department issued a letter in favor of the taxpayer. Letter dated 02.04.2007 No. 03-11-04/2/78: due to the fact that art. 250 of the Code does not provide for the inclusion in the non-operating income of taxpayers of amounts of material benefit under interest-free loan agreements, organizations applying the simplified taxation system should not determine the amount of material benefit under such agreements.