Yu.V. Kapanina, certified tax consultant

In court we give away real estate for debts: accounting and taxes from the debtor

There are cases when, for various reasons, a company cannot fulfill its obligations to a counterparty, for example, return money under a loan agreement. The creditor will most likely go to court to seek the truth. And if the debtor has no or insufficient money in his current accounts, the debt can be collected from him on the basis of a court decision at the expense of his property Part 4 Art. 69 of the Law of October 2, 2007 No. 229-FZ (hereinafter referred to as Law No. 229-FZ). In this article, we will look at the situation when a debtor, by a court decision, transfers his property to the creditor (collector) to pay off the debt under a loan agreement, and we will help determine the accounting and tax consequences of such an operation.

Debt collection procedure

In order to understand the nuances of accounting, you first need to understand the procedure for collecting property to pay off debt by court decision. So, the sequence will be as follows.

STEP 1. Based on the writ of execution issued by the court, at the request of the claimant, the bailiff initiates enforcement proceedings. You will learn about this from a copy of the relevant decree of the bailiff. Part 1, Art. 17 30 of Law No. 229-FZ.

Please note that in this decree the bailiff will indicate to you the time for voluntary execution of the court decision Part 11 Art. 30 of Law No. 229-FZ. As a rule, 5 working days are allotted for this from the date you receive this decision. Part 2 Art. 15, part 12 art. 30 of Law No. 229-FZ.

STEP 2. If you cannot pay the debt to the creditor within the specified period, then, in addition to it, the bailiff will also collect an enforcement fee from you. Its size for organizations is 7% of the amount payable, but not less than 10,000 rubles. part 1, 3 tbsp. 112 of Law No. 229-FZ Then the bailiff will apply enforcement measures Art. 68 of Law No. 229-FZ.

WE WARN THE MANAGER

The amount of the performance fee cannot be taken into account in “profitable” expenses Letter of the Ministry of Finance dated 04/08/2009 No. 03-03-06/1/227.

STEP 3. If you don’t have money, then the next step will be seizure according to the inventory of your property (if we are talking about real estate, then you will be required to provide title documents for the object) Art. 84 of Law No. 229-FZ. In this case, you can indicate to the bailiff (write a statement in any form) which property to foreclose on first. True, the final decision is still made by the bailiff. Part 5 Art. 69 of Law No. 229-FZ.

STEP 4. Then the bailiff must evaluate the foreclosed property at market prices. For real estate objects, this value is determined by the appraiser. Part 1, Art. 2 85 of Law No. 229-FZ. Based on the appraiser's report, the bailiff issues a decision on the valuation of the property, a copy of which he must send to you no later than the next working day clause 3, part 4, part 6, art. 85 of Law No. 229-FZ.

STEP 5. Then your property is usually sold through a specialized company Part 1 Art. 87 of Law No. 229-FZ. Real estate is sold at open auction in the form of an auction Part 3 Art. 87 of Law No. 229-FZ. To do this, the bailiff issues a decree on the transfer of the debtor’s property for sale (you must be sent a copy of it) and transfers the property to a specialized organization under a transfer and acceptance certificate and Part 6, 7 Art. 87, part 8 art. 89 of Law No. 229-FZ.

Please note that the starting price of your property put up for auction cannot be less than the value reflected in the assessment decree Part 2 Art. 89 of Law No. 229-FZ. Therefore, if you do not agree with the value of the property indicated by the appraiser or bailiff, you can challenge it. The complaint must be submitted to a higher official or to the court no later than 10 working days from the date of notification of you about the assessment. clause 3, part 4, part 7, art. 85, articles 122, 123 of Law No. 229-FZ.

STEP 6. If your property has not been sold within the established time frame, the bailiff sends the creditor (claimor) an offer to keep this property for himself. Part 11 Art. 87 of Law No. 229-FZ. In the situation we are considering, the collector exercised this right, which he informed the bailiff in writing. Then the bailiff issues orders to transfer the unsold property to the claimant (you should be sent a copy of it) and to carry out state registration of the claimant's ownership of the property. Part 14, 15 Art. 87, clause 3, part 2, part 4, art. 66 of Law No. 229-FZ. In this case, the property is transferred at a price 25% lower than its value specified in the resolution on the valuation of property and part 12 art. 87 of Law No. 229-FZ. By the way, if this reduced price exceeds your debt to the claimant, then the claimant will be able to keep your property only if the corresponding difference is simultaneously paid to the bailiffs.

STEP 7. When you have fulfilled all the requirements specified in the enforcement document, the bailiff issues a resolution to complete the enforcement proceedings, a copy of which will be sent to you no later than the next business day clause 1 part 1, clause 1 part 6 art. 47 of Law No. 229-FZ.

How debt collection from property affects taxes

When transferring property, ownership of it passes from the debtor organization to the claimant clause 3 art. 218, sub. 1 item 2 art. 235, paragraph 2 of Art. 237 Civil Code of the Russian Federation. Moreover, this happens on a reimbursable basis, because as a result, your debt to the creditor is repaid (or reduced). Therefore, such a transfer of property is recognized as a sale on which you will have to pay tax and clause 1 art. 39 Tax Code of the Russian Federation.

Income tax

Income from the sale of real estate is recognized on the date of its transfer and para. 2 p. 3 art. 271 Tax Code of the Russian Federation. The document confirming this fact, in our case, will be a copy of the bailiff's decision on the transfer of unrealized property to the claimant. From it you will also find out the cost at which your property was transferred to the claimant and which you need to reflect in your taxable income x clause 1 art. 248 Tax Code of the Russian Federation.

You can reduce the income from sales by the residual value of the property in general subp. 1 clause 1 art. 268 Tax Code of the Russian Federation.

If as a result of the sale of depreciable property you incur a loss, then it is recognized as an expense in equal parts over the remaining period beneficial use OS clause 3 art. 268, Art. 323 Tax Code of the Russian Federation.

But repaying your debt under the loan agreement will no longer affect the calculation of tax. Since interest on the loan was previously taken into account in “profitable” expenses (they were recognized at the end of each month of the reporting (tax) period of using the loan) para. 1 clause 8 art. 272, para. 3 p. 4 art. 328 Tax Code of the Russian Federation. And the amount of the loan itself when repaying it is not taken into account in expenses, because receiving this money in tax income you didn't reflect and clause 12 art. 270, sub. 10 p. 1 art. 251 Tax Code of the Russian Federation.

VAT

None tax consequences for VAT when repaying the debt under the loan agreement you will not have to subp. 15 clause 3 art. 149 Tax Code of the Russian Federation. But regarding the calculation of VAT when transferring property into the ownership of the claimant, there are several points of view.

According to the Ministry of Finance, in this case, VAT is paid in accordance with the generally established procedure, that is, by the owner of the property (debtor) Letter of the Ministry of Finance dated November 1, 2012 No. 03-07-11/473. When selling real estate, VAT is accrued on the day of its transfer to the claimant on the basis of a copy of the bailiff's decision on the transfer of unrealized property to the claimant pp. 3, 16 tbsp. 167 Tax Code of the Russian Federation. In addition, you will have to issue an invoice to the claimant within 5 calendar days from the date of transfer of the property and pp. 1, 3 tbsp. 168, sub. 1 clause 3 art. 169 Tax Code of the Russian Federation.

FROM AUTHENTIC SOURCES

Advisor to the State Civil Service of the Russian Federation, 2nd class

“ Within the meaning of the provisions of paragraphs. 1 and 4 tbsp. 168 of the Tax Code of the Russian Federation, the amount of tax charged to the buyer when selling goods (work, services) must be taken into account when determining the final amount of the price specified in the contract and highlighted in settlement and primary accounting documents, invoices as a separate line. At the same time, the burden of ensuring compliance with these requirements lies with the seller as a taxpayer, who is obliged to take into account such a sales operation when forming the tax base and calculating the tax payable to the budget based on the results of the corresponding tax period.

In this regard, if the contract does not directly indicate that the price established therein does not include the amount of tax, and otherwise does not follow from the circumstances preceding the conclusion of the contract or other terms of the contract, then the amount of tax presented to the buyer by the seller is allocated last of all. the price specified in the contract, for which it is determined by the calculation method clause 4 art. 164 Tax Code of the Russian Federation; clause 17 of the Resolution of the Plenum of the Supreme Arbitration Court of May 30, 2014 No. 33.

Therefore, if the bailiff’s resolution on the transfer of unrealized property to the claimant states that the price of the transferred property does not include VAT, then when transferring the property, VAT is charged by the debtor on the cost of the specified property using tax rate 18%” .

That is, by default, the market value of property includes VAT, and the amount of tax must be allocated from the price indicated in the copy of the bailiff’s decision on the transfer of unrealized property to the claimant, using the calculation method at the rate of 18/118 clause 4 art. 164 Tax Code of the Russian Federation. If the resolution directly stipulates that the value of the property is indicated without VAT, then the tax will be charged on top of the value of the property at a rate of 18%.

But the courts have a completely different view of this situation. The judges believe that the debtor has no obligation to pay VAT when transferring his property to the claimant, since the debtor is not a party to the transaction for the sale of property, he does not establish or agree on the price of the property, and does not transfer it Resolution of the AS VSO dated October 30, 2014 No. A19-2789/2014; FAS NWO dated April 18, 2013 No. A13-3701/2012; 2 AAS dated January 24, 2012 No. A29-5791/2011; Appeal ruling of the Chelyabinsk Regional Court dated December 23, 2014 No. 11-13335/2014.

And if the debtor tries to obtain the VAT paid by him from the claimant in court, then he may not find support from the judges, since Resolution of the AS SZO dated February 29, 2016 No. F07-28/2016; AS VSO dated October 30, 2014 No. A19-2789/2014:

• since the debtor does not have an obligation to pay VAT when transferring his property to the recoverer, this means that the tax should not be transferred to him;
• It is impossible to repay the loan debt to the creditor at the expense of VAT due to the fact that this tax is not included in the amount of the debt. subp. 15 clause 3 art. 149 Tax Code of the Russian Federation, that is, there are no grounds for increasing the value of the transferred property by the amount of VAT.

We reflect the transfer of property in accounting

Let's look at accounting using an example.

Example. Accounting for the transfer of property against debt

/ condition / Based on a writ of execution issued on the basis of a court decision that has entered into force and transferred to the bailiff, the organization is charged with debt to the lender (claimant) in the total amount of 3,450,000 rubles, of which 3,000,000 rubles. - for the principal amount of the loan and 450,000 rubles. - by percentage. Due to the lack of money in the organization's current account, in the same month the bailiff arrested and transferred for sale the building that belonged to it by right of ownership. The market value of the building, indicated in the bailiff's resolution on the assessment of the debtor's property, amounted to 4,800,000 rubles. (without VAT). The property was not sold on time, and the claimant retained it. It was transferred to the claimant at a price of RUB 3,600,000. (RUB 4,800,000 – RUB 4,800,000 x 0.25). After which the bailiff completed the enforcement proceedings and transferred to the account of the debtor organization an amount exceeding the debt to the claimant. Until the actual transfer of the building to the claimant, the organization used the seized building. The initial cost of the building is RUB 3,900,000, the amount of accumulated depreciation as of the date of transfer to the claimant is RUB 1,560,000.

/ solution / The following entries need to be made in accounting.

If a share in the property right is transferred to the claimant

PBU 6/01 does not have a mechanism for accounting for the transfer of a share of an asset. It is only said that a fixed assets item owned by two organizations is reflected by each of them as part of fixed assets in proportion to its share in the total property and para. 3 clause 6 PBU 6/01. Therefore, the transfer of a share of an object is shown in accounting through the partial disposal of fixed assets. That is, part of the original cost and part of the accrued depreciation are written off based on the share of the transfer of the fixed asset.

In tax accounting, when a share of an asset is transferred to a claimant, the income from its sale will be reduced by the residual value of the disposed share of the object subp. 1 clause 1 art. 268 Tax Code of the Russian Federation.

We also note that the assessment of the market value of the building for the purpose of transferring it for sale is not taken into account when preparing the reports. There is no need to revaluate real estate in accounting (if you have not done this before), since revaluation of fixed assets is a right, not an obligation of the organization. clause 15 PBU 6/01.

If your fixed asset was sold by a specialized organization, where the bailiff transferred it after seizure, then on the date of the sale you also need to reflect in tax accounting the income from the sale of this property, despite the fact that the money from its sale goes to the account of the bailiff service, and not to you Letter of the Federal Tax Service for Moscow dated November 13, 2009 No. 16-15/119158; Resolution of the Federal Antimonopoly Service of the Northern Territory of June 21, 2011 No. A56-51808/2010.

At the same time, you can reduce this income by the residual value of the sold fixed asset subp. 1 clause 1 art. 268 Tax Code of the Russian Federation. Please note that the specialized organization will not notify you about the sale date (for example, information about the auctions held can be viewed on the official website RF for posting information about bidding). Therefore, the sale of property can be reflected on the date of receipt of the bailiff’s order on the completion of enforcement proceedings.

As for VAT, if your property is sold by court decision through a specialized organization, then you do not need to transfer the tax to the budget. This will be done by the direct seller, who is tax agent according to VAT clause 4 art. 161 Tax Code of the Russian Federation.

You can repay the loan with fixed assets to an individual. Will I have to pay taxes and what kind?

Providing a loan without interest. Is it possible to repay a loan with fixed assets to a legal entity? Taxation.

Question: LLC "1" provided a loan (non-cash) without interest to another LLC "2". LLC "2" cannot repay the loan because At the moment there is no activity and there is no cash flow. But LLC "2" has fixed assets. You can repay the loan with fixed assets to a legal entity. Will I have to pay taxes and what kind? Also, this LLC 2 owes money to the founder (individual). You can repay a loan with fixed assets to an individual. Will I have to pay taxes and what kind?

Answer: Yes, this is possible both under an agreement with an organization and under an agreement with an individual. Such a transfer can be formalized through a compensation agreement or novation. In both the first and second options, the transfer of a fixed asset will be recognized as a sale for tax purposes. Those. You will have to report the proceeds in tax accounting and charge VAT on the proceeds.

How to take innovation into account when taxing

Loan converted into delivery obligation

How to take into account when taxing the novation of a loan into an obligation to supply goods (works, services)

In the tax accounting of the lender and the borrower, reflect the novation of a loan obligation into an obligation to supply goods (works, services) as separate transactions:

repayment of the loan and interest on it (if any were provided);

occurrence of prepayment for goods (work, services).

Do this at the time the novation agreement comes into force (the moment the contract is signed or other moment provided for by the novation agreement).

The new loan amount (and interest on it) is recognized as an advance payment (Clause 1, Article 414 of the Civil Code of the Russian Federation).

An advance issued for goods (work, services) should not be taken into account in expenses either under the general tax regime (clause 14 of Article 270, clause 1 of Article 272 and clause 3 of Article 273 of the Tax Code of the Russian Federation), or under the simplified tax regime (and Clause 2 of Article 346.17 of the Tax Code of the Russian Federation).

If the lender pays UTII, the novation of the loan obligation into an advance will not affect the calculation of the single tax. The object of UTII taxation is imputed income (clause 1 of Article 346.29 of the Tax Code of the Russian Federation).

If the lender combines UTII and common system taxation, reflect the amount of the advance received according to the rules of the type of activity for which goods (work, services) are purchased. This follows from paragraph 9 of Article 274 and paragraph 7

When calculating taxes, reflect the novation of debt from the borrower as follows.

Repayment of the loan (interest on it) is taken into account in general procedure depending on the tax regime that the organization applies. For more information, see:

The new amount of the loan received (and interest on it) is recognized as an advance payment received (clause 1 of Article 414 of the Civil Code of the Russian Federation). An advance received for goods (work, services) should not be included in the income of organizations that use the accrual method (subclause 1, clause 1, article 251, clause and article 271 of the Tax Code of the Russian Federation). Increase tax base organizations that:

calculate income tax using the cash method ();

If the borrower pays UTII, the novation of the loan obligation into an advance will not affect the calculation of the single tax. The object of UTII taxation is imputed income (clause 1 of Article 346.29 of the Tax Code of the Russian Federation).

If the borrower combines UTII and the general taxation system, reflect the amount of the resulting advance according to the rules of the type of activity for which the goods (work, services) will be supplied (performed, rendered). This follows from paragraph 9 of Article 274 and paragraph 7 of Article 346.26 Tax Code RF.

How to formalize and reflect innovation in accounting

Monetary liability is novated into a liability in kind

Debt to a counterparty that needs to be repaid in cash, can be converted into a liability in kind. This will change the way the contractual obligation is fulfilled. This follows from paragraph 1 of Article 414 of the Civil Code of the Russian Federation.

For example, the obligation to pay for shipped goods (work, services) can be transformed into an obligation to counter-delivery goods (work, services). In the same way, you can novate the primary obligation to repay a loan (credit), etc.

If, along with the main debt, an additional obligation is novated (for example, a penalty for failure to fulfill an obligation under a contract), this must also be reflected in the accounting.

How can a debtor reflect in accounting the novation of a monetary obligation to a creditor into an obligation in kind?

In the accounting of the debtor at the time of concluding the novation agreement, the primary obligation must be taken into account as an advance received for goods (work, services). That is, transfer it from the account on which the counterparty’s accounts payable is taken into account (for example, from accounts 60, 66, 67, 76) to account 62 “Settlements with buyers and customers” (76 “Settlements with various debtors and creditors”) subaccount “ Calculations for advances received." In this case, you need to make an entry in your accounting:

Debit 60 (66, 67, 76) Credit 62 (76) subaccount “Settlements on advances received”
– the debt to the counterparty was novated into an obligation to supply goods (works, services).

In some cases, entries about innovations in accounting need to be made only in analytical accounting. For example, when the obligation to return the advance received for performing work is transformed into an obligation to supply goods, and the organization maintains analytical accounting in the context of concluded contracts or the subject of contractual relations. In this case, make accounting entries only in analytical accounting of account 62 (76).

This follows from the Instructions for the chart of accounts (accounts , , , , ).

An example of reflecting in the accounting of an organization (debtor) the novation of an obligation to pay for services rendered into an obligation to supply goods. According to the novation agreement, the customer organization becomes the supplier

On June 10, Alpha LLC provided consulting services to Trading Company Hermes LLC in the amount of RUB 118,000. (including VAT – 18,000 rubles). According to the terms of the agreement, Hermes is obliged to pay for services within 12 days (i.e. until June 22 inclusive).

The Hermes accountant made the following entries in the accounting:

Debit 44 Credit 60
– 100,000 rub. (RUB 118,000 – RUB 18,000) – reflects the cost of purchased services;

Debit 19 Credit 60
– 18,000 rub. – reflected input VAT on the cost of purchased services;

Debit 68 subaccount “VAT calculations” Credit 19
– 18,000 rub. – accepted for deduction of input VAT from the cost of purchased services.

On June 23, Alpha and Hermes entered into a novation agreement. Hermes' obligation to pay for services rendered has been converted into an obligation to supply goods.

The Hermes accountant reflected this in the accounting:

Debit 60 Credit 62 subaccount “Calculations for advances received”
– 118,000 rub. – the debt to the counterparty for payment for services has been converted into an obligation to supply goods;

Debit 76 subaccount “Calculations for VAT on advances received” Credit 68 subaccount “Calculations for VAT”
– 18,000 rub. – VAT is charged on the amount of the advance received.

Is it necessary to charge VAT when repaying a loan in kind?

Since repayment of a loan in kind is subject to VAT, the amount of input tax on property acquired to repay the loan can be deducted ().

Is it necessary to pay VAT if an organization received money under a loan agreement and repays the debt with fixed assets?

Yes need.

By repaying the loan with fixed assets, the organization pays off its debt obligation with the help of compensation. This conclusion can be drawn from the Civil Code of the Russian Federation. The transfer of goods (materials) under an agreement to provide compensation is considered a sale. Therefore, this transaction is subject to VAT. This means that the transferring party is obliged to calculate VAT on sales, and the receiving party has the right to deduct the tax. This follows from subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation and is confirmed in the letter of the Ministry of Finance of Russia dated January 22, 2015 No. 03-07-07/1607. The courts adhere to a similar point of view (see, for example, the ruling of the Supreme Court of the Russian Federation dated January 31, 2017 No. 309-KG16-13100, decisions of the FAS Volga District dated June 13, 2012 No. A65-18274/2011, Moscow District dated September 29, 2011 No. A40 -102796/2010).

Answers to questions about reserves, repayment of loans and goods

How to reflect the repayment of a loan with property

“...Our company took out a loan from another organization and did not repay it on time. Under the compensation agreement, we give up our fixed assets to pay off the debt. How to do this in accounting?..”

Complete the disposal of the fixed asset and write off the creditor.

The borrower has the right to transfer property to his creditor to pay off his obligations. To do this, the parties can enter into an agreement on compensation (Article 409 of the Civil Code of the Russian Federation). The debt ceases when the company transfers its fixed assets. Therefore, in accounting, reflect the disposal of fixed assets and the repayment of the creditor on the same day.

When disposing of fixed assets, expenses in the amount of the residual value are written off to account 91 “Other income and expenses” (clause 31 PBU 6/01, clause 3 PBU 10/99). Repayment by the creditor is recognized as income of the company (clause 2 of PBU 9/99).

Make the following entries in your accounting:

Debit 01 subaccount “Retirement of fixed assets” Credit 01

The original cost of the fixed asset has been written off;

Debit 02 Credit 01 subaccount “Disposal of fixed assets”

The amount of accrued depreciation is written off;

Debit 91 Credit 01 subaccount “Disposal of fixed assets”

The residual value of the fixed asset is written off as other expenses;

We bought real estate in 2012 (USN “income”), now we are working (USN “income-expenses”), if we give the property to pay off the loan. What transactions will be made and how to pay tax, only on income or will an expense be generated (depreciation)?

Answer

When calculating the single tax, you need to take into account income in the form of the value of the transferred property. In this case, the transfer of property to pay off a loan debt must be considered as a transfer of property as compensation. For tax purposes, the transfer of property as compensation is recognized as a sale.

It is impossible to take into account the cost of the transferred property in expenses when calculating the single tax. If a fixed asset is paid for and put into operation under the object “income”, then it is impossible to take into account the costs of its acquisition (even partially) after changing the object of taxation. In addition, organizations that pay single tax from the difference between income and expenses, has no right to reduce the tax base by the amount of the residual value of the object being sold.

In accounting, the transfer of a fixed asset to repay a loan must be reflected in a manner similar to the procedure for recording a transaction for the sale of a fixed asset:

Debit 01 subaccount “Retirement of fixed assets” Credit 01 - reflects the initial (replacement) cost of the retiring fixed asset;

Debit 02 Credit 01 subaccount “Disposal of fixed assets” - reflects depreciation accrued during the period of operation of the facility;

Debit 45 subaccount “Transferred real estate” Credit 01 subaccount “Disposal of fixed assets” - the residual value of the retiring fixed asset, the ownership of which is subject to state registration, is written off;

Debit 62 Credit 91-1 - revenue from the sale of fixed assets is reflected;

Debit 91-2 Credit 45 subaccount “Transferred real estate” - reflected as part of other expenses the residual value of the sold fixed asset, the ownership of which is subject to state registration;

Debit 66 (67) Credit 62 - repayment of loan debt is reflected.

How to choose a simplified taxation object (“income” or “income minus expenses”)

Accounting for income and expenses when changing the object of taxation

Transition from the “income” object to the “income minus expenses” object

When changing the object of taxation, take into account income in the same order as payment is made (). The Tax Code does not establish any special rules.

The possibility of accounting for certain types of expenses after changing the object of taxation depends on the period in which the conditions necessary for recognizing expenses are met. If all the conditions for recognizing expenses were met before changing the object of taxation, then after the transition to another object the tax base for the single tax is not reduced (). If at least one condition for recognizing expenses was met after changing the object of taxation, such expenses can be taken into account when calculating the single tax.

For example, the cost of paid goods purchased for resale during the period when the organization used the “income” object can be included in expenses if they were not sold before the tax object was changed. This is explained by the fact that such expenses are recognized as goods are sold (Tax Code of the Russian Federation, letters from the Ministry of Finance of Russia,).

The cost of raw materials and materials purchased under the object “income” can be included in expenses if they are paid after changing the object of taxation (Tax Code of the Russian Federation,). If raw materials and materials were purchased and paid for before the transition to another facility, then after the transition their cost cannot be taken into account. Even if these resources are used in production, when the organization pays a single tax on the difference between income and expenses. The fact is that the rule applies to raw materials and materials: they are taken into account in expenses as they are recorded and paid for. And the date of decommissioning into production does not matter. This follows from paragraph 2 of Article 346.17 of the Tax Code of the Russian Federation and is confirmed.

If a fixed asset is paid for and put into operation under the object “income”, then it is impossible to take into account the costs of its acquisition (even partially) after changing the object of taxation. After all, the residual value of fixed assets at the time of transition from one object to another is not formed (letters from the Ministry of Finance of Russia,). If a fixed asset acquired under the “income” object was put into operation after a change in the object of taxation, the costs of its acquisition can be taken into account when calculating the single tax. In this case, the payment period for the fixed asset does not matter. This procedure follows from the provisions of paragraph 3 of Article 346.16, paragraph 2 of Article 346.17 of the Tax Code of the Russian Federation and is confirmed.

At the time of changing the object of taxation, the organization may have wage arrears. If this debt is repaid during the period when the organization began to pay a single tax on the difference between income and expenses, the paid salary cannot be taken into account for tax purposes. Such expenses relate to the organization’s activities during the period of application of the “income” object, and therefore, the tax base for the single tax is not reduced (,).

Rental payments transferred in advance during the period of application of the “income” object can be taken into account as expenses after changing the object of taxation. But only for those months when the organization began to pay a single tax on the difference between income and expenses. This possibility is due to the fact that rental services were actually provided after the transition to another taxable object. Include expenses in the tax base as of the date of signing the act on the provision of services. This follows from the provisions of Article 346.17, paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation.

How to take into account transactions for obtaining a loan (credit) when taxing. The organization applies a special tax regime

Situation: when calculating the single tax, does the borrower need to include in income the compensation transferred to repay the loan? The organization applies simplification

Yes need.

The borrower can repay the loan by transfer. Goods or property rights may be transferred as compensation.

For tax purposes, the transfer of property (property rights) as compensation is recognized as a sale (). Income from the sale of property (property rights) should be taken into account as part of the tax base when calculating the single tax on the date of signing the documents for its transfer (Tax Code of the Russian Federation). Determine the amount of income. Similar explanations are contained in.

If the borrowing organization pays a single tax on the difference between income and expenses and , the cost of the transferred property (property rights) as compensation can be taken into account as part of expenses ().

How to register and reflect in accounting the sale of fixed assets

Accounting

In accounting, reflect the disposal of property from fixed assets on. To do this, you can open a separate sub-account “Disposal of fixed assets”. On the debit of this account, reflect the initial (replacement) cost of the fixed asset, on the credit - the amount of depreciation accrued during the period of its operation:

Debit 01 subaccount “Disposal of fixed assets” Credit 01
- reflects the initial (replacement) cost of the retiring fixed asset;

Debit 02 Credit 01 subaccount “Disposal of fixed assets”
- reflects depreciation accrued during the period of operation of the facility.

As a result, the balance on account 01 “Retirement of fixed assets” will reflect the residual value of the fixed asset.

The formula will help you check the data:

This procedure is provided for in the Instructions for the chart of accounts ().

Disposal of buildings or structures

If a building, structure (parts thereof) are transferred to the buyer before the transfer of ownership is registered in the prescribed manner, then already at the time of signing the act, the objects (part of the object) cease to have ownership. Therefore, the residual value of buildings, structures (their parts), without waiting for sale (transfer of ownership), must be written off. The Financial Department recommends using account 45 subaccount “Transferred real estate objects” for these purposes (brought to the attention of the tax inspectorates). like this business transaction reflected by wiring:

Debit 45 subaccount “Transferred real estate” Credit 01 subaccount “Disposal fixed assets »
- the residual value of a retiring fixed asset (or part thereof), the ownership of which is subject to state registration, has been written off.

Revenue and expenses from the sale of fixed assets

To account for income and expenses from the sale of a fixed asset, use:
- “Other income”, where you reflect the proceeds from the sale of the object;
- “Other expenses”, which reflect the residual value of the retired fixed asset and other expenses associated with its sale.

Reflect the proceeds from the sale as part of other income when the ownership of the sold fixed asset passes to the buyer. For real estate, this is the moment when ownership is registered. Recognize as revenue the amount stipulated in the purchase and sale agreement (supply, exchange).

At the same time, include in other expenses the residual value of the sold fixed asset and other costs associated with the sale. For example, costs for storage, packaging, maintenance, transportation, etc.

This procedure is provided for in paragraphs and PBU 6/01, paragraphs and PBU 9/99, PBU 10/99 and the Instructions for the chart of accounts (accounts Article 6 of the Law of December 6, 2011 No. 402-FZ).

When recording income and expenses from the sale of a fixed asset, make the following entries:

Debit 62 (76) Credit 91-1
- revenue from the sale of fixed assets is reflected;

Debit 91-2 Credit 68 subaccount “VAT calculations”
- VAT is charged on the sale of fixed assets (if the organization’s activities are subject to VAT);

Debit 91-2 Credit 01 subaccount “Disposal of fixed assets” (account 45 subaccount “Transferred real estate”)
- reflected in other expenses is the residual value of the sold fixed asset (the residual value of the fixed asset, the ownership of which is subject to state registration);

Debit 91-2 Credit 10 (60, 69, 70, 76...)
- included in other expenses are costs associated with the sale of a fixed asset (for example, costs for the services of an appraiser, transportation costs, etc.);

Debit 19 Credit 60 (76)
- VAT is reflected on costs associated with the sale of fixed assets.

If the costs associated with the sale of a fixed asset exceed the income received from the sale, the difference between them is recognized as a loss. In accounting, the amount of loss is classified as an expense. current period and are included in other expenses at a time in the month when the sale occurred ().

How to reflect the sale of fixed assets for tax purposes

Organizations that pay a single tax on the difference between income and expenses do not have the right to reduce the tax base by the amount of the residual value of the object being sold. Such expenses are not included in the closed list given in the Tax Code of the Russian Federation. A similar point of view is reflected in letters from the Russian Ministry of Finance and. The position of the regulatory agencies is shared by some arbitration courts (see, for example, the decisions of the FAS,).

The company owns office space (fixed asset). Can a company transfer this premises to repay a debt to another organization for previously rendered services subject to VAT? What taxes will you have to pay in this case?

In the described situation, you can repay your obligations to the counterparty by transferring the fixed asset by concluding a compensation agreement. A release agreement is like any other deal. legal entity, must be made in simple written form.

clause 1 art. 39 of the Tax Code of the Russian Federation). When transferring a fixed asset as compensation, an organization receives income in the amount of the value of such property specified in the agreement. The company reflects this income when calculating income tax (). And the residual value of the fixed asset can be taken into account in expenses (subclause 1, clause 1, article 268 of the Tax Code of the Russian Federation).

The transfer of an asset under a compensation agreement is a disposal. Therefore, this transaction is subject to VAT.

Rationale

Vitaly Dianova, Candidate of Legal Sciences, Senior Associate at Goltsblat BLP

Alexandra Kryukova, Candidate of Legal Sciences, Deputy Chairman of the Arbitration Court of the Sverdlovsk Region, Master of Private Law

How to terminate the obligation to pay compensation

Sometimes the debtor is unable to fulfill his obligation. In this case, he may, by agreement with the creditor, provide compensation in exchange for performance (). This form of termination of an obligation may be beneficial to the debtor. He receives a deferment and the opportunity to satisfy the creditor's demands in a way acceptable to him. To terminate the compensation obligation, the parties must enter into a separate agreement.

Compensation agreement form

The compensation agreement, like any other transaction of a legal entity, must be concluded in simple written form (subparagraph 1, paragraph 1, article 161 of the Civil Code of the Russian Federation).

Special requirements for the form of transactions do not apply to compensation (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 25, 2007 No. 7134/07). For example, an agreement on the provision of real estate as compensation does not require state registration. However, the transfer of ownership of such property should be registered in the manner prescribed by law (clause 15 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59 “Review of the practice of resolving disputes related to the application of the Federal Law “On State Registration of Rights to Real Estate and transactions with him."

The compensation agreement must include information about the subject of the agreement, the procedure, amount and timing of the transfer of compensation.

First of all, it is necessary to clearly indicate which obligation the parties intend to terminate by compensation (for example, list the details of the contract), and what exactly will be transferred as compensation.

Money can be used as compensation securities, other property: real estate, vehicles, goods, etc. In this case, the agreement must identify the subject of compensation as much as possible, that is, indicate its name, qualitative and quantitative characteristics. The law does not provide an exhaustive list of obligations that may constitute compensation. This means that compensation can also be an obligation to perform work or provide a service.

When determining the procedure for transferring compensation, the parties establish what actions the debtor should perform and what documents should be transferred so that the creditor can accept the money paid or the property transferred.

The parties themselves decide what amount of compensation will satisfy them: more, less or equal to the amount of the obligation.

When the amount of compensation is greater than the amount of the main obligation, there is a risk of tax disputes. The tax authorities may file claims against the creditor due to an unlawful reduction of the income tax base.

If the amount of compensation is less than the size of the main obligation, then in order to avoid disputes with the counterparty, the agreement must clearly indicate whether the obligation is completely or partially terminated. However, even if disagreements arise, the courts usually rule in favor of the debtor. When it is not possible to establish the will of the parties directly or by interpreting the terms of the agreement, the court will consider the obligation to be terminated completely. This clarification is contained in paragraph 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102 “Review of the practice of application by arbitration courts of Article 409 of the Civil Code of the Russian Federation” (hereinafter referred to as information letter No. 102, valid to the extent that does not contradict the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 12, 2011 No. 17389/10). And the courts continue to be guided by this rule.

The debtor, in agreement with the creditor, transfers the compensation in full or in parts.

The agreement must specify the period during which the compensation will be transferred. From the moment the agreement is concluded until the expiration of such a period, the debtor is given a deferment of fulfillment of the main obligation. The creditor has no right to demand fulfillment of the main obligation until the deadline for providing compensation has expired (clause 2 of information letter No. 102). Only after this the creditor will be able to apply to the debtor with a demand (or to the court with a claim) for collection of the main obligation.

Additionally, the compensation agreement can include any other conditions that the parties consider important for themselves.

Termination of the main obligation

Reaching an agreement on compensation by the parties does not terminate the main obligation. This means that the debtor needs to provide the creditor with compensation in return for performance. Only then will the obligation be considered terminated (clause 1 of information letter No. 102).

At the same time, the provision of compensation terminates all obligations of the debtor to the creditor. The exception is the case when the parties agreed otherwise in the agreement (clause 3 of information letter No. 102). For example, the parties may indicate that the transfer of compensation does not cover interest on the loan, contractual penalties, etc.

2. From the situation
Andrey Kizimov, Deputy Director of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

Is it necessary to pay VAT if an organization received money under a loan agreement and repays the debt with fixed assets?

Yes need.

By repaying the loan with fixed assets, the organization pays off its debt obligation with the help of compensation. This conclusion can be drawn from the Civil Code of the Russian Federation. The transfer of goods (materials) under an agreement to provide compensation is considered a sale. Therefore, this transaction is subject to VAT. This follows from subparagraph 1 of paragraph 1 of Article 146 of the Tax Code of the Russian Federation and is confirmed in the letter of the Ministry of Finance of Russia dated January 22, 2015 No. 03-07-07/1607. The courts adhere to a similar point of view (see, for example, decisions of the Federal Antimonopoly Service of the Volga District dated June 13, 2012 No. A65-18274/2011, Moscow District dated September 29, 2011 No. A40-102796/2010).

Nuances of taxation in the event of termination of an obligation under a contract through compensation

Recently, in practice, companies are increasingly paying off obligations to counterparties by concluding a compensation agreement (read more below). At the same time, in tax terms, risks, as a rule, arise when the value of the compensation is unequal to the value of the original obligation.

By transferring property as compensation, the debtor pays income tax

According to the Russian Ministry of Finance, when transferring an object as compensation, the ownership of such property is transferred on a reimbursable basis, which for tax purposes is recognized as a sale (Clause 1, Article 39 of the Tax Code of the Russian Federation). It turns out that the organization, when transferring property as compensation, receives income in the amount of the value of such property specified in the contract. The company reflects this income when calculating income tax (letter dated July 27, 2005 No. 03-11-04/2/34).

Transfer of property to pay off debt is subject to VAT

“...Last year we received an interest-free loan from the founder. To pay off the debt, they gave him the main asset under a compensation agreement. The residual value of the asset is greater than the outstanding loan balance. How to reflect this operation in tax accounting?..”

- From a letter from the chief accountant Elena Paratova, Moscow

Elena, the transfer of an asset under a compensation agreement is a sale. Therefore, it is necessary to pay VAT and take into account income. And the cost of the transferred asset can be written off as expenses.*

The borrower has the right, with the consent of the lender, to repay the debt with property by concluding a compensation agreement (Article 409 of the Civil Code of the Russian Federation). By general rule the loan received is not income (subclause 10, clause 1, article 251 of the Tax Code of the Russian Federation). But the transfer of property in exchange for a loan is a sale, since the company transfers goods, not money. Therefore, the repaid loan amount must be included in income on the date of signing the act of transfer of property (clause 1 of Article 248, clause 1 of Article 249 of the Tax Code of the Russian Federation). And the residual value of the fixed asset can be taken into account in expenses (subclause 1, clause 1, article 268 of the Tax Code of the Russian Federation).

In your case, the residual value exceeds the loan amount, so a loss occurs. Part of the cost, which corresponds to the loan amount, can be written off at a time. And the loss is distributed evenly over the remaining useful life of the asset (clause 3 of Article 268 of the Tax Code of the Russian Federation).

VAT must be charged on the value of the transferred asset. The company actually transfers the object at a cost equal to the loan. This means that the loan amount is the sales price including VAT. The tax will be equal to the amount of the repaid loan multiplied by 18/118 (

Traditionally, a cash loan is repaid in cash. However, the parties may agree to repay the loan by transferring certain property. How is this correct, how to reflect such a repayment in accounting and what taxes should I pay?

Legal basis

Parties to the loan. Its maturity date is coming. But the borrower does not have available funds to repay his debt. But there is property that he would like to transfer to pay off his debt. And if the lender is not against such “repayment,” then the parties draw up an agreement on compensation (Article 409 of the Civil Code of the Russian Federation). In this case, the borrower’s obligation to repay the loan ceases, but a new obligation appears - to transfer property.

Let us recall that until June 1, 2015, compensation was provided not only by transfer of property, but also, in particular, in the form of performing work (rendering services), since the previous version of Article 409 of the Civil Code of the Russian Federation contained an open list of methods for providing compensation.

It is important to know that the obligation is considered extinguished at the moment the compensation is provided, and not at the moment the agreement on it is signed. This means that on the date of concluding the agreement on the provision of compensation, the borrower’s obligation does not terminate. To terminate the obligation, the actual provision of compensation, that is, the transfer of property, is necessary. Therefore, if the loan is interest-bearing, then interest accrues until the borrower transfers the property. And if real estate is provided as compensation, then the compensation agreement is considered fulfilled only after the transfer to the real estate. This conclusion follows from the Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated June 17, 2014 No. 2826/14 in case No. A57-2430/2011.

And one more important point. Within the meaning of Article 409 of the Civil Code of the Russian Federation, unless otherwise follows from the compensation agreement, the provision of compensation ceases All obligations under the contract, including the obligation to pay a penalty (clause 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102). This means that if the loan was interest-bearing, then with the compensation agreement all obligations are repaid, including the payment of interest. Unless, of course, otherwise provided in the agreement. Therefore, if the lender wants to receive his interest in cash, and the body of the loan itself is ready to receive “in kind,” then the corresponding procedure must be specified in the agreement. Otherwise, with the provision of compensation, the entire debt will be repaid, that is, the loan itself and the interest on it.

The value of the property transferred as compensation does not have to be equivalent to the debt under the terminated obligation (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102, Resolution of the Federal Antimonopoly Service of the North-Western District dated March 16, 2012 in case No. A56- 30457/2009). Therefore, the borrower can value the transferred property either higher or lower than his debt. In this case, the parties must decide whether the transfer of “unequal” property will repay the loan obligation in full? Or will it “cover” the debt only partially (in terms of the value of the transferred property)? The fact is that if this point is not reflected in the compensation agreement, then by default it is considered that the obligation is terminated completely (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102).

Transferred the property? Add VAT!

The transfer of property (whether goods, products or fixed assets) as compensation is recognized as a sale for VAT purposes. Indeed, in accordance with paragraph 1 of Article 39 of the Tax Code of the Russian Federation, the sale of goods by an organization or is recognized accordingly broadcast on a reimbursable basis ownership for goods to another person. In this case, when transferring property, a transfer of ownership occurs, which means there is a sale. And the sale of goods, including under an agreement on the provision of compensation, is subject to VAT (subclause 1, clause 1, article 146 of the Tax Code of the Russian Federation). Unless, of course, the borrower applies the usual one and is not exempt from VAT under Article 145 of the Tax Code of the Russian Federation.

The tax base is defined as the value of the transferred property, based on prices determined in accordance with Article 105.3 of the Tax Code of the Russian Federation, and without including tax in them (clause 1 of Article 154 of the Tax Code of the Russian Federation). According to paragraph 1 of Article 105.3 of the Tax Code of the Russian Federation, prices used in transactions in which the parties are persons who are not recognized as interdependent are recognized as market prices. In fact, this means that the value of the property that the parties agreed upon, excluding VAT, should be included in the VAT tax base. By adding VAT on top (multiplying by 118%), we get the value of the property including VAT. It is this value that should be specified in the compensation agreement.

Since the transfer of property as compensation is a VAT-taxable operation, an invoice must be issued along with the transfer act. It should be registered in the sales ledger and then included in the VAT return.

Income tax

For an operation related to the provision of compensation to the lender, the borrower receives income from the sale (clause 1 of Article 249 of the Tax Code of the Russian Federation). Sales proceeds are determined based on all receipts associated with goods sold (clause 2 of Article 249 of the Tax Code of the Russian Federation). In this case, income included in taxable profit will be formed based on the value of the property established in the compensation agreement (minus VAT). At the same time, the value of the property at which it was registered can be included in expenses (clause 1 of Article 268 of the Tax Code of the Russian Federation).

Reflected in accounting

When transferring property to a counterparty as compensation, the organization, in the generally established manner, reflects the disposal of property using account 90 “Sales” or account 91 “Other income and expenses.” Income from the transfer of property is recognized in the amount of the value of the property reflected in the agreement. The cost of the transferred property is included in the cost of sales or other expenses (if property other than products or goods is transferred).

For clarity, we will consider the reflection in accounting of transactions for the transfer of compensation using a practical example.

Example:

Financial House LLC issued Skazka LLC an interest-bearing loan in the amount of 110,000 rubles. The parties entered into a compensation agreement. As compensation, equipment is transferred at a cost of 118,000 rubles. (including VAT - 18,000 rubles). The residual value of the equipment was 60,000 rubles. At the time of transfer of property, the interest debt amounted to 8,000 rubles. and the total debt under the loan agreement is 118,000 rubles, which corresponds to the cost of the transferred equipment, including VAT.

Debit 62 (76) Credit 91

- 118,000 rub. - equipment was transferred as compensation;

Debit 91 Credit 01

- 60,000 rub. - reflects the residual value of the property;

Debit 91 Credit 68

- 18,000 rub. - VAT is charged on the value of the transferred compensation;

Debit 66 Credit 62 (76)

- 118,000 rub. - reflects the repayment of debt on a loan obligation.

Unequal compensation

It may happen that the compensation agreement will indicate the value of the transferred property, which is less or more than the debt under the original agreement, but will not stipulate in what part the debt is repaid. Or it will be stated that the transfer of such property completely terminates all obligations under the loan agreement.

In such cases it is likely tax risks. If the value of the property exceeds the terminated obligation, then the risks arise with the receiving party (the lender). Officials believe that in this situation the organization should reflect non-operating income, from which it is necessary to pay This conclusion can be seen, for example, in Letters of the Ministry of Finance of the Russian Federation dated February 3, 2010 No. 03-03-06/1/42, Federal Tax Service of Russia for the year dated December 5, 2007 No. 19-11/116142 . By taxing this difference to income tax, the company will eliminate tax risks.

At the same time, officials note that for a borrower who transferred property worth more than the amount of his debt, the resulting difference cannot be attributed to a decrease in taxable profit.

In the opposite situation (the value of the property is less than the amount of the terminating obligation), risks arise with the transferring party, that is, with the borrower. The Federal Tax Service will consider that it has generated non-operating income in the amount of the excess. At the same time, the loss that the other party (the lender) receives, according to officials, cannot be accepted for tax purposes (Letter of the Federal Tax Service of Russia for Moscow dated December 5, 2007 No. 19-11/116142).

Taking all this into account, it is better for the parties not to resort to “unequal exchange”. Or the value of the property transferred as compensation should be adjusted to the amount of the debt being repaid. This will not be a violation, because the prices used in transactions, the parties to which are persons who are not recognized as interdependent, are recognized as market prices (clause 1 of Article 105.3 of the Tax Code of the Russian Federation). In other words, the price that the parties determined in the agreement will be the market price.

IA Clerk.Ru., analytical department

Become an expert