Settlements with individuals for rent. Lease agreement for non-residential premises with an individual. How to calculate the amount
The conclusion of a lease agreement for non-residential premises with an individual is carried out on the same grounds as provided for legal entities and is regulated. The only peculiarity is the requirements for signing a transaction concluded in writing.
Features of drawing up a contract
What documents are required
3.3. The landlord has the right:
3.3.1. check the condition of the Premises and the communal infrastructure systems located in it no more than once a month during the Tenant's working hours, as well as in case of urgent need;
3.3.2. control the intended use of the leased Premises by the Tenant;
3.3.3. demand termination of the contract and compensation for losses if the Lessee uses the Premises not in accordance with its intended purpose and the terms of this contract;
3.4.2. refrain from any actions that create obstacles for the Tenant in the use of the premises;
3.4.3. every _________ year (years), as well as in emergency situations, to carry out major repairs of the leased Premises at their own expense;
3.4.4. after the termination of this Agreement, reimburse the Tenant for the cost of inseparable improvements to the rented Premises made with his consent;
3.4.5. accept from the Lessee for the Premises in _________-day period after the expiration of the lease term or upon termination of this agreement for other reasons.
4. Lease term
4.1. The lease term of the Premises under this agreement is __________ year (years) from the date of its acceptance by the Lessee.
4.2. If the Lessee intends to conclude a contract for a new term, he must notify the Lessor about this at least ___________ month (s) before the end of the contract.
4.3. When concluding a lease agreement for a new term, the terms of the Agreement may be changed by agreement of the Parties.
4.4. If none of the Parties after the expiration of the Agreement does not declare its termination, then the Agreement is considered renewed under the same conditions for an indefinite period.
5. Modification and termination of the contract
5.1. By agreement of the Parties, this Agreement may be amended or terminated.
5.2. At the request of the Lessor, this Agreement may be terminated ahead of schedule in court, in cases where the Lessee:
5.2.1. grossly or repeatedly violates the terms of this agreement or uses the rented Premises for other purposes;
5.2.2. significantly worsens the condition of the rented premises.
5.3. At the request of the Lessee, this Lease Agreement may be terminated ahead of schedule in court if:
5.3.1. the lessor does not provide the property for use by the lessee or creates obstacles to the use of the property in accordance with the terms of the contract or the purpose of the property;
5.3.2. the property transferred to the Lessee has defects that prevent the use of it, which were not specified by the Lessor when concluding the contract, were not known to the Lessee in advance and should not have been discovered by the Lessee during the inspection of the property or checking its serviceability when concluding the contract;
5.3.3. The Lessor does not carry out major repairs of the Premises within the terms established by this Agreement;
5.3.4. the property, due to circumstances beyond the control of the Lessee, will be in a condition unsuitable for use.
6. Responsibility of the parties to the contract
6.1. In case of non-fulfillment or improper fulfillment of obligations under this Agreement, the Parties shall be liable in accordance with the current legislation of the Russian Federation.
6.2. The Lessor is obliged to compensate the Lessee for losses (real damage) caused by the delay in returning the rented Premises.
6.3. In accordance with the Lessor is liable to the Lessee for the shortcomings of the leased property, which fully or partially impede the use of it, even if at the time of the conclusion of this Agreement he did not know about these shortcomings.
6.4. In the event of a delay in the payment of rental payments, the Lessee pays to the Lessor a penalty in the amount of ______% of the amount owed for each day of delay.
6.5. If the Premises are used not in accordance with the terms of this Agreement or the intended purpose, the Lessee shall pay the Lessor a fine of __________ times the monthly rent and reimburse all losses caused by this (real damage).
7. Dispute Resolution
7.1. Disputes that may arise during the execution of the terms of this Agreement, the Parties will seek to resolve through negotiations.
7.2. Disputes of the Parties not settled through negotiations are referred for resolution to the arbitration court ____________________.
8. Other conditions
8.1. At the time of the conclusion of this Agreement, the Lessor guarantees that the Premises being leased are not mortgaged, arrested, not encumbered with rights and are not the subject of claims of third parties.
8.2. Any changes and additions to this Agreement must be made in writing and signed by both Parties.
8.3. This Agreement is drawn up and signed in three copies, of which one is kept in the files point out, and the rest are issued by copy to the Lessor and the Lessee.
8.4. This agreement comes into force from the date of its state registration in name of the registering authority.
8.5. In all other respects that are not provided for in this Agreement, the Parties are guided by the current civil law RF.
9. Details and signatures of the parties
Lessor: Full name
passport: series ________, No. ___________,
issued by ____________________________________________,
department code _____________
registered at ________________________________________
Current account No. ______________
Correspondent account No. ________________
BIK _____________
TIN / KPP _____________
Credit institution name
Personal account ___________________
Tenant: full name
Location: _______________________
TIN / KPP: _____________________
Current account No. ______________ with the bank __________________
Correspondent account No. _____________
BIK _______________
Appendix No. 1
to the Lease Agreement for Non-Residential Premises
from day month Year
Act
acceptance and transfer of non-residential premises for rent
Acting on the basis
1. The Lessor transfers, and the Lessee accepts for temporary use, free from property rights and claims of third parties, non-residential Premises located at the address: _______________________________________________________________________________.
2. The premises are located in brick, panel, etc. house, on the _______ floor of a _____________- storey building, and consists of _______ rooms, with a total area of __________.
1st room _________, 2nd room _________, 3rd room _________, etc.
The room is equipped with communal infrastructure systems (cold and hot water supply, sewerage, electricity and heat supply), provided with telephone communications.
3. At the time of drawing up this Act, the Premises is in the following technical condition: and meets the requirements for its operation;
4. The parties have established that the visible defects of the transferred Premises are not grounds for terminating the Lease Agreement.
5. This Act testifies to the fact of transfer of the above Premises from the Lessor to the Lessee. The Lessor also transfers to the Lessee a technical passport and other documentation related to the Premises.
6. After signing this Act, the Lessor does not accept the Lessee's claims regarding the technical condition of the Premises, with the exception of hidden defects discovered.
7. This Act is an integral part of the Lease Agreement for non-residential premises from day month Year.
8. This act comes into force from the moment of its signing and is subject to submission to name of the registering authority.
Appendix:
1. Technical passport;
2. Explication of non-residential premises on the _______] floor;
3. __________________________.
Signatures of the parties:
Landlord: Full name, signature
Tenant: Job title signature / F. AND ABOUT. /
Appendix No. 2
for renting non-residential premises
from day month Year
Act
acceptance and return of rented non-residential premises
Citizen of the Russian Federation, full name, name (s) hereinafter referred to as the "Lessor", on the one hand, and full name of the legal entity, hereinafter referred to as the "Lessee", represented by position, surname, name, patronymic, acting on the basis Of the Charter, Regulations, Power of Attorney, on the other hand, and collectively referred to as the "Parties", have signed this Act as follows:
1. In connection with the termination / termination of the Lease Agreement for non-residential premises from day month Year The Tenant returns, and the Landlord accepts the non-residential Premises located at: _____________________________________________________.
2. The premises are returned to the Landlord in the same condition as was received from him by the Tenant on the date, month, year, taking into account normal wear and tear.
3. At the time of drawing up this Act, the Premises are characterized by the following technical condition: indicate the condition, material and finish of walls, floors, ceilings, windows, doors, etc., the need for current or major repairs, etc. and is suitable for further exploitation.
4. The Parties have established that the Lessor has no claims against the Lessee regarding the condition of the returned Premises.
5. The parties have no claims against each other for mutual settlements (rent, utility bills, reimbursement of the cost of inseparable improvements.)
6. This Act confirms the fact of the return of the above Premises from the Lessee to the Lessor. The Lessee shall also return the technical passport and other documentation related to the Premises to the Lessor.
7. After signing this Act, the Lessee does not accept the Lessor's claims regarding the technical condition of the Premises.
8. This Act is an integral part of the Lease Agreement for non-residential premises from day month Year.
9. This Act comes into force from the moment of its signing by the Parties.
Appendix:
1. Technical passport;
2. Explication of non-residential premises __________ floors;
3. ___________________________.
Signatures of the parties:
Landlord: Full name, signature
Tenant: job title signature/ F. AND ABOUT. /
Purchase premises for business on initial stage creating it can be problematic. Therefore, entrepreneurs prefer to rent real estate. This allows you to reduce one-time expenses. but rental of non-residential premises associated with a number of features that distinguish the process from the classical one. This leads to the emergence of a whole list of issues, the inability to quickly resolve which becomes the reason for the delay in the beginning of the implementation of activities.
If a legal entity or individual wants to avoid them and speed up the process of renting out non-residential real estate as much as possible, the procedure should be started by analyzing relevant information on the topic. We will talk further about the procedure for carrying out actions, about the features that are imposed on the procedure depending on the status of the lessee and the lessor, as well as about the specifics of taxation.
Do individuals need to register as individual entrepreneurs for renting non-residential premises?
The right to own residential property is assigned to individuals by Articles 131 and 213 of the Civil Code of the Russian Federation. A person who is recognized as the owner of real estate has the right to dispose of and use it at his own discretion. Such a possibility is fixed by article 209 of the Civil Code of the Russian Federation. Moreover, every citizen has the opportunity to rent out non-residential premises. The rule is reflected in article 608 of the Civil Code of the Russian Federation. An individual can exercise his right to lease non-residential real estate. At the same time, the articles of the law do not oblige to register as an individual entrepreneur. However, a person is engaged in entrepreneurial activity with the help of the delivery of real estate, it will be necessary to open an individual entrepreneur.
When is it impossible to avoid opening an IP?
Individuals can start carrying out entrepreneurial activities only after they pass the appropriate registration and receive the status of an individual entrepreneur. However, the law does not oblige the citizen to become a legal entity. A similar rule is reflected in Article 23 of the Civil Code of the Russian Federation. Business activity is distinguished from other manipulations by a number of features.
Which include:
- there are stable ties with the tenant;
- during a certain period, transactions are carried out regularly;
- a person keeps records of concluded deals and operations;
- the property was purchased specifically for transactions;
- a person has a regular income as a result of the use of real estate.
In order for the process of renting out real estate to be recognized as an entrepreneurial activity and led to the need to register as an individual entrepreneur, it must be proven that all transactions were concluded with the aim of obtaining a permanent income.
For example, the signing of a lease agreement for one year or more, as well as the conclusion of transactions with the same organizations, can act as confirmation. In this situation, registration as an individual entrepreneur will be required.
What will happen if you do not register as an individual entrepreneur?
If a person violates the articles of the law and begins to carry out entrepreneurial activities without registration, court proceedings will be initiated against him. A citizen can be brought to administrative or criminal liability.
One of the following punishments may be applied to him:
- monetary recovery of 500-2000 rubles (article 14.1 of the Code of Administrative Offenses of the Russian Federation);
- monetary recovery up to 300,000 rubles (article 171 of the Criminal Code of the Russian Federation);
- involvement in compulsory work lasting 480 hours (Article 171 of the Criminal Code of the Russian Federation);
- arrest for up to six months (Article 171 of the Criminal Code of the Russian Federation);
- a fine in the amount of income for 2 years (Article 171 of the Criminal Code of the Russian Federation).
How is an agreement concluded with legal entities and individuals?
The rule governing the lease of non-residential premises from an individual is absent in Russian law. When drawing up an agreement, it is necessary to rely on the provisions of Chapter 34 of the Civil Code of the Russian Federation. The normative legal act contains general information on the provision of property for rent.
Article 606 of the Civil Code of the Russian Federation reflects that a landlord, who is not a legal entity, is obliged to transfer non-residential real estate to the tenant for temporary use and possession after a certain fee has been paid.
The lease agreement is drawn up in accordance with the rules contained in Articles 434 and 609 of the Civil Code of the Russian Federation. The parties to the agreement are required to draw up a document in writing. The finished paper is signed by each of the parties.
The contract must contain mandatory information, the list of which includes:
- details of legal entities and individuals;
- information about the object;
- terms of use of real estate;
- the amount of the rent.
The parties have the right to strongly indicate for how long the contract is concluded. If such information is not available, it is considered that the property has been leased for an indefinite period.
A similar rule is fixed in article 610 of the Civil Code of the Russian Federation. In the text of the contract, you must indicate the OKVED code. If premises are rented out, code 70.20.2 is used. The rule is relevant only if we are talking about non-residential premises. When filling out the characteristics of the object in the contract, you must be careful.
The document will reflect the following information:
- inventory number of the premises;
- the exact address indicating the floor and the location of the premises on it;
- purpose (e.g. office, warehouse, etc.);
- The name of a room;
- real estate area.
In accordance with article 609 of the Civil Code of the Russian Federation, the contract is considered officially concluded only after it is registered with the Federal Register. If the transaction is concluded for a period of less than 1 year, registration is not required. The agreement can be drawn up in any form. A similar rule applies to the extension of the contract for the same period.
To go through state registration, you will need to prepare a package of documents. It must include:
- a statement that can be obtained from a notary or other specialist who accepts the necessary documents;
- the contract and all its annexes;
- passports of natural persons of the transaction;
- check for payment of state duty
- other documentation, if there is a need for its provision.
How is taxation carried out?
If the property generates income, it is taxed. The timing of depositing funds and the procedure for making settlements directly depends on the status of the taxpayer. If the calculation is carried out according to the simplified tax system with additional insurance premiums, the amount of the deduction in favor of the state will be 6% of the rent. A similar rule applies to individual entrepreneurs. When figuring out whether an individual can rent out the premises, it will be possible to find out that such an opportunity is present. However, a citizen will have to pay 13% of personal income tax with payment once. The rules are reflected in article 208 of the Tax Code of the Russian Federation. If a citizen evades taxes, he will be prosecuted or imposed an administrative fine.
If the landlord is an organization
A legal entity can also rent out real estate. In accordance with Articles 209, 213 and 608 of the Civil Code of the Russian Federation, organizations have the same right to own, use and dispose of their own property as individuals. At the same time, the law does not impose restrictions on the number of structures owned by a legal entity. A similar rule is reflected in article 213 of the Civil Code of the Russian Federation. If the lease of premises is carried out by a legal entity, the contract is concluded in accordance with Articles 606 and 670 of the Civil Code of the Russian Federation. In this case, the document must indicate the OKVED code 70.20.2.
An agreement with a legal entity must be drawn up in writing. It does not matter for what period the property is provided.
The contract must also contain mandatory information, which includes:
- room characteristics;
- information about legal entities and individuals included in the agreement;
- rent;
- peculiarities of using premises and carrying out repairs;
- signatures of the parties to the transaction.
If the lease term is not specified in the agreement, it is considered that it has been concluded for an indefinite period. This rule is enshrined in article 610 of the Civil Code of the Russian Federation. The agreement and all annexes to it must also be registered with the Federal Register, if non-residential real estate is leased out for a period of more than 1 calendar year.
In order for the authorized body to agree to register, the representative of the legal entity will need to prepare the following documents:
- an application completed in accordance with the rules;
- executed and signed contract, as well as an annex to it;
- real estate cadastral passport;
- papers confirming the legal status of the organization;
- documents confirming the fact of payment of the state duty;
- additional papers, if necessary.
If the landlord is an individual
If the role of the lessor is an individual, the process of drafting the contract and the specifics of processing the transaction change. So, in the document it is necessary to indicate the address and characteristics of the premises. At the same time, targeted payments will not be subject to VAT. It also includes utility bills.
A person who rents a commercial space can charge a fee to an individual's bank account or provide it in cash.
The change in the rent must be carried out in accordance with the current legislation. Article 614 of the Civil Code of the Russian Federation stipulates that the adjustment of the amount of payment should occur no more than once a year. If the contract is concluded for more than one year, the document must be registered with the territorial division of Rosreestr.
The organization plans to rent premises from an individual who is not an individual entrepreneur. The premise has the status of a non-residential fund and will be used as a store.
Does the organization have the right to enter into this lease? In what order should you pay with an individual under a lease agreement? Does the organization have responsibilities in this situation? tax agent for personal income tax?
Having considered the issue, we came to the following conclusion:
The organization has the right to rent premises from an individual who is not an individual entrepreneur.
The organization transfers the amount determined by the lease agreement (net of personal income tax) to an individual to his bank account or gives it out in cash from the cash desk.
The taxes stipulated by the legislation, namely personal income tax, the lessor, as a tax agent, withholds from an individual and transfers to the budget.
Rationale for the conclusion:
On the basis of clause 1 of Art. 213 and Art. 130 of the Civil Code of the Russian Federation, an individual has the right to own non-residential premises.
The right to lease property (including non-residential premises) belongs to its owner (Article 608 of the Civil Code of the Russian Federation). In this case, a citizen can carry out the activity of renting out property as an individual who is not an individual entrepreneur (IE), since the law does not establish the requirement to register an individual as an individual entrepreneur to carry out such activities.
An entrepreneurial is an independent activity carried out at one's own risk aimed at the systematic receipt of profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law (paragraph three, clause 1 of article 2 of the Civil Code of the Russian Federation).
According to paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur.
The implementation by an individual of entrepreneurial activity without state registration, depending on the circumstances, may be the basis for bringing him to administrative (part 1 of article 14.1 of the Code of Administrative Offenses of the Russian Federation) or criminal (article 171 of the Criminal Code of the Russian Federation) liability.
The presence of signs of entrepreneurial activity in the actions of a citizen may be evidenced, in particular, by the following facts:
- production or acquisition of property for the purpose of subsequent profit from its use or sale;
- economic accounting of transactions related to the implementation of transactions;
- the interconnectedness of all transactions made by a citizen in a certain period of time;
- stable relations with sellers, buyers, and other counterparties.
In the presence of these signs, an individual is obliged to register as an individual entrepreneur. However, the mere fact that an individual has made transactions on a reimbursable basis is not enough to recognize the activity he is carrying out as entrepreneurial. Similar conclusions are contained in the clarifications of the Ministry of Finance of Russia (letters of the Ministry of Finance of Russia dated 01.06.2010 N 03-04-05 / 3-302, dated 17.11.2009 N 03-04-05-01 / 808, dated 14.01.2005 N 03-05- 01-05 / 3).
Therefore, in the absence of the above signs, an individual has the right to rent out the property belonging to him without registering as an individual entrepreneur.
These conclusions take into account the position expressed by the Plenum of the RF Armed Forces in the resolution of November 18, 2004 N 23 "On judicial practice in cases of illegal entrepreneurship and legalization (laundering) of money or other property acquired by criminal means." In clause 2 of this resolution, the RF Armed Forces indicated that in cases where a person who is not registered as an entrepreneur acquired residential premises or other immovable property for personal needs or received it by inheritance or under a donation agreement, but due to the absence of the need to use this property temporarily leased or leased it and as a result of such a civil law transaction received income (including in a large or especially large size), what he has done does not entail criminal liability for illegal business (Art. 171 of the Criminal Code of the Russian Federation).
The Ministry of Finance of Russia, in a letter dated April 28, 2005 N 03-01-11 / 2-81, indicated that in the event that an individual leases out his premises acquired for personal needs, state registration as an individual entrepreneur is not required.
The resolution of the RF Armed Forces of June 30, 2006 N 53-AD06-2 also notes that isolated cases the sale of goods, the performance of work, the provision of services by a person who is not registered as an individual entrepreneur does not constitute an administrative offense under Part 1 of Art. 14.1 of the Code of Administrative Offenses of the Russian Federation, if the quantity of goods, its range, the volume of work performed, services rendered and other circumstances do not indicate that this activity was aimed at systematic profit.
However, it should be borne in mind that in accordance with paragraph 4 of Art. 23 of the Civil Code of the Russian Federation, a citizen carrying out entrepreneurial activity without forming a legal entity, without appropriate registration, does not have the right to refer to the transactions concluded by him that he is not an entrepreneur. The court may apply to such transactions the rules of the Civil Code of the Russian Federation on obligations related to the implementation of entrepreneurial activities.
As noted in the letter of the Federal Tax Service of Russia for Moscow dated January 25, 2008 N 18-12 / 3/005988, if operations for the lease of property (lease) or transactions for the sale and purchase of property are carried out in the presence of signs of economic and entrepreneurial activity, the physical a person is obliged to register as an entrepreneur without forming a legal entity.
Thus, it should be borne in mind that depending on specific situations (for example, when renting non-residential premises owned by an individual that cannot be used (not intended for use) by an individual for personal needs), the court may assess the actions an individual as carried out with the aim of making a profit and recognize such an activity as entrepreneurial.
In addition, the implementation of entrepreneurial activity may be indicated, for example, by the conclusion of an agreement for a period of more than one tax period (calendar year) or its prolongation for the next period, repeated receipt of income, repeated conclusion of lease agreements with the same legal entity, etc. ... (letter of the Federal Tax Service of Russia for Moscow dated 15.04.2005 N 18-12 / 3/26639, resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of 28.04.2004 N A38-4668-5 / 85-2004).
In the situation under consideration, an individual, when leasing non-residential premises not intended for personal use, has tax risks recognition of this activity as entrepreneurial. This, in particular, can happen during a tax audit of a tenant - individual entrepreneur.
To eliminate the adverse consequences associated with the possible recognition of an individual's activity in leasing property for business lease, the owner of the premises can register as an individual entrepreneur and pay taxes on income from leasing property in accordance with the applicable tax system.
The organization can pay for the rented premises both in cash and by bank transfer, since in accordance with clause 1.2 of the Regulation of the Bank of Russia dated June 19, 2012 N 383-P, payers, recipients of funds are legal entities, Individual entrepreneurs, individuals engaged in the established by law Russian Federation private practice, individuals (hereinafter referred to as clients), banks.
In accordance with paragraph 1 of Art. 207 of the Tax Code of the Russian Federation, individuals who are tax residents of the Russian Federation are recognized as payers of personal income tax. For them, the object of taxation is income received from sources in the Russian Federation and (or) from sources outside the Russian Federation (clause 1 of article 209 of the Tax Code of the Russian Federation).
The amount of rent received by an individual from the lease of property located in the Russian Federation refers to income received from sources in the Russian Federation (subparagraph 4 of paragraph 1 of article 208 of the Tax Code of the Russian Federation). These incomes are subject to personal income tax at a rate of 13% (clause 1 of article 224 of the Tax Code of the Russian Federation).
According to paragraphs. 1 p. 1 of Art. 223 of the Tax Code of the Russian Federation upon receipt of income in cash, the date of actual receipt of income is determined as the day of payment of income, including the transfer of income to the taxpayer's accounts in banks or on his behalf to the accounts of third parties.
In accordance with paragraph 1 of Art. 226 of the Tax Code of the Russian Federation Russian organizations from which or as a result of relations with which the taxpayer received income (except for income in respect of which the calculation and payment of tax is carried out in accordance with Articles 214.1, 214.3, 214.4, 214.5, 227, 227.1 and 228 of the Tax Code of the Russian Federation), are obliged calculate, withhold from the taxpayer and pay the tax amount calculated in accordance with Art. 224 of the Tax Code of the Russian Federation. Moreover, such organizations are called tax agents.
A similar position is set out in a number of clarifications of the Ministry of Finance of Russia and tax authorities (see, for example, letters of the Ministry of Finance of the Russian Federation dated 06.12.2010 N 03-04-06 / 3-290, dated 16.08.2010 N 03-04-05 / 3-462, dated 20.07.2009 N 03-04-06-01 / 178 and the Federal Tax Service of Russia in Moscow dated 07.04.2008 N 28-10 / [email protected]). A similar position is reflected in the FAS resolution Northwestern District from 14.05.2010 N А66-9581 / 2009.
Thus, the organization, when paying rent to an individual, should withhold the amount of personal income tax and transfer it to the budget (clause 4 of article 226 of the Tax Code of the Russian Federation).
At the same time, for the performance of the duties of a tax agent of an organization, the consent of an individual - a taxpayer is not required.
For non-fulfillment or improper fulfillment of the duties assigned to him, the tax agent is liable in accordance with the legislation of the Russian Federation (Article 24 of the Tax Code of the Russian Federation). So, according to Art. 123 of the Tax Code of the Russian Federation, unlawful failure to withhold and (or) non-transfer (incomplete withholding and (or) transfer) within the period established by the Tax Code of the Russian Federation of the amounts of tax to be withheld and transferred by a tax agent, entails the collection of a fine in the amount of 20% of the amount to be withheld and (or) transfer.
Due to the fact that the organization acts as a tax agent, it is obliged to submit information in the form 2-NDFL "Certificate of income of an individual for 20__", approved by order of the Federal Tax Service of Russia dated November 17, 2010 N ММВ-7-3 / [email protected] Information is submitted to the tax authority at the place of registration of the organization (tax agent) no later than April 1 of the year following the expired tax period (clause 2 of article 230 of the Tax Code of the Russian Federation).
At the same time, there is another point of view.
In a letter from the Federal Tax Service of Russia for Moscow dated 03/18/2011 N 20-14 / 4 / [email protected] the tax authorities explain that taxpayers who received income under a lease (lease) agreement must independently calculate the tax amounts payable to the relevant budget in the manner prescribed by Art. 225 of the Tax Code of the Russian Federation. A similar position is reflected in the resolutions of the FAS of the Volga District of 05/18/2009 N A12-16391 / 2008, the FAS of the West Siberian District of 09/10/2009 N F04-5077 / 2009 (13200-A03-46).
Some arbitration courts note that if the lease agreement concluded by an organization with individuals who are not its employees does not provide for the organization's obligation to withhold and pay personal income tax from the amount of rent to the budget, then it is not obliged to do so (see, for example, the resolution of the Federal Antimonopoly Service of Moscow district from 04.09.2009 N КА-А40 / 8534-09).
In the decision of the FAS of the Moscow District of 30.11.2010 N KA-A40 / 14545-10 in case N A40-10432 / 10-140-112 judges, guided by the provisions of Art. 45, pp. 4 p. 1 of Art. 228 of the Tax Code of the Russian Federation, indicated that personal income tax had to be paid by the individuals themselves - the lessors, since the lease agreements indicated that the payment of personal income tax was made by the individual - the lessor independently.
Despite the existence of such decisions in favor of tenant organizations, in our opinion, if an individual and an organization enter into a lease agreement for non-residential premises, then the organization, as a tax agent, must calculate, withhold and pay personal income tax from the amount of rent. A different position on this issue will have to be defended in court.
In order to avoid possible misunderstandings, we recommend prescribing in the lease agreement the procedure for paying personal income tax in the case of renting property from an individual.
The procedure for paying insurance contributions to the Pension Fund of the Russian Federation (PFR), the Social Insurance Fund of the Russian Federation (FSS), the Federal Fund for Compulsory Medical Insurance (FFOMS) is determined by the Federal Law of 24.07.2009 N 212-FZ (hereinafter - Law N 212-FZ) ...
The object of taxation of insurance premiums for organizations, individual entrepreneurs making payments to individuals, are, in particular, payments and other remuneration accrued in favor of individuals within the framework of labor relations and civil law contracts, the subject of which is the performance of work, the provision of services (Part 1 Article 7 of Law No. 212-FZ).
In accordance with part 3 of Art. 7 of Law No. 212-FZ do not apply to objects of taxation with insurance premiums payments and other remuneration made within the framework of civil contracts, the subject of which is the transfer of ownership or other property rights to property (property rights), and contracts related to the transfer to use of property (property rights), with the exception of author's order agreements, agreements on the alienation of the exclusive right to works of science, literature, art, publishing license agreements, license agreements on granting the right to use a work of science, literature, art.
A property lease agreement is directly related to the transfer of property (property rights) for use. Accordingly, the rent is not subject to insurance premiums in the Pension Fund of the Russian Federation, FSS, FFOMS (see also the letter of the Ministry of Health and Social Development of Russia dated March 12, 2010 N 550-19).
Insurance premiums for compulsory social insurance against industrial accidents and occupational diseases are payable in accordance with Federal Law of July 24, 1998 N 125-FZ (hereinafter - Law N 125-FZ).
The procedure for calculating and paying contributions for this type of insurance is regulated by Decree of the Government of the Russian Federation of 03/02/2000 N 184 "On approval of the Rules for calculating, accounting and spending funds for compulsory social insurance against industrial accidents and occupational diseases" (hereinafter referred to as the Rules).
In accordance with paragraph 1 of Art. 20.1 of Law N 125-FZ, as well as paragraph 3 of the Rules insurance premiums accrued, in particular, on payments and other remuneration paid by the policyholder in favor of the insured person under civil law contracts, if, in accordance with such contracts, the policyholder is obliged to pay insurance premiums to the insurer.
For your information:
The costs associated with the payment of lease payments are included in expenses based on:
- pp. 10 p. 1 art. 264 of the Tax Code of the Russian Federation - as part of income tax expenses as lease payments for leased property (including land plots) related to other expenses related to the production and sale of goods, works or services;
- pp. 4 p. 1 of Art. 346.16 of the Tax Code of the Russian Federation - as part of expenses under the simplified tax system as lease (including leasing) payments for leased (including leased) property.
From 01.01.2012 the Tax Code of the Russian Federation was supplemented with section V.1. "Related persons. General provisions on prices and taxation. Tax control in connection with transactions between related parties. Pricing agreement".
The concept of interdependent persons for tax purposes is disclosed by Art. 105.1 of the Tax Code of the Russian Federation.
Prepared answer:
Expert of the Legal Consulting Service GARANT
Gusikhin Dmitry
Quality control of the response:
Reviewer of the Legal Consulting Service GARANT
professional accountant Sergey Rodyushkin
The material was prepared on the basis of an individual written consultation provided within the framework of the Legal Consulting service.
All actions of a tax agent in calculating personal income tax from income in the form of rent, withholding tax when paying income to an individual and transferring it to the budget are strictly regulated by the Tax Code. Consider the features of paying personal income tax under a lease agreement with an individual and the timing of the transfer of personal income tax under lease agreements.
The obligation for personal income tax from payments to an individual who is not an individual entrepreneur for renting premises depends on the type of rental payments, that is, on how the tenant pays for the component part - utilities. Consider three options for rental payments.
Option 1. The rent includes only the payment for the provided area
The rent includes only the fixed part, which is set in the form of rent for the space provided. Utilities are billed separately by the landlord and therefore constitute a variable part of the rent.
Payments in the form of such rent are recognized as income under pp. 4 p. 1 of Art. 208 of the Tax Code of the Russian Federation, and a company paying income is recognized as a tax agent by virtue of clause 1. Clause 2 of Art. 226, Art. 228 of the Tax Code of the Russian Federation in relation to this individual - the lessor. Consequently, personal income tax must be withheld from this type of rent.
Option 2. The rent includes the cost of utilities
The cost of utilities is already included in the rent in a fixed amount of payments for the month. That is, the lessor predicted the amount of future utilities in advance, by calculation, based on actual data for previous periods.
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In this case, the income, including the payment of utility bills, received by an individual, is subject to taxation - Letter of the Ministry of Finance of the Russian Federation of 03/15/2017 No. 03-04-05 / 15280. Consequently, personal income tax must be withheld from this type of rent.
Option 3. Reimbursement of utilities
The landlord compensates the tenant for utilities on the basis of the attached supporting documents upon the fact of their use.
If the organization reimburses an individual for the cost of utilities: electricity, gas, water supply, heat supply, in the amount of its actual consumption, recorded by the meters, then the recoverable amount is not income individuals and, therefore, with such compensation, personal income tax does not need to be withheld, by virtue of the Letter of the Ministry of Finance dated 04.17.2013 No. 03-04-06 / 12985.
You just need to worry about a decent package of supporting documents that the tenant pays for his own expenses. The recommended list of documents is presented in the material "".
When calculating personal income tax, you must be guided by:
- the norms of Chapter 23 "Personal Income Tax";
- explanatory letters of the controlling bodies of the RF Ministry of Finance, the RF Federal Tax Service;
- approved Accounting policy for the purpose of taxation of personal income tax.
In tax policy, for the purpose of personal income tax, a tax accounting system is approved for this particular tax in the form of a list of primary accounting documents, forms of tax accounting registers and the procedure for reflecting analytical data on tax accounting in them on income, tax base, amounts calculated, withheld, transferred by personal income tax for each individual face.
For payments under lease agreements for premises, GPC agreements, you need to know the time frame for recognizing income, withholding and paying personal income tax.
Below are the requirements of the legislation on the timing of transactions performed by a tax agent and on control over the lines of the 6-NDFL form in relation to a lease agreement with an individual:
Who pays personal income tax under a lease agreement with an individual
A company acting as a tax agent for rent payments must withhold personal income tax from the income received under the lease agreement and pay it to the budget. It is impossible to shift the transfer of personal income tax to the lessor - an individual.
It is important to remember that personal income tax in any case must be paid by the tenant - the organization, having previously withheld the calculated tax directly from the amount paid by the individual.
The amount of tax is determined on the basis of the amount of remuneration received by an individual in the form of rent using a rate of 13% in accordance with paragraph 1 of Art. 224 of the Tax Code of the Russian Federation, taking into account the declared tax deductions in accordance with paragraph 1 of Art. 210 of the Tax Code of the Russian Federation.
The table of allowed deductions under lease agreements is given in the material "".
Almost any company needs a room to work. Naturally, not every firm can own an office or production area. In this case, the lease comes to the rescue. Moreover, the premises can be rented both from another company and from an ordinary person. But when drawing up such a contract with an individual, the company often faces difficulties. Let's consider the main ones.Lease agreement: conclusion ...
To begin with, let us note the basic requirements that the legislation imposes on a lease agreement for non-residential premises.
First, it must be drawn up in writing (clause 1 of article 651 of the Civil Code of the Russian Federation). Secondly, if such an agreement is concluded for a period of at least a year, then it is subject to state registration. Moreover, this rule also applies to cases when one of the parties to the transaction is an individual. How to avoid registering a lease? You just need to conclude a contract for a period of less than a year. And then you can extend it for the same period (up to a year). In this case, state registration will not be required, because after the end of the initial lease term, the relations between the parties will be regulated by a new agreement. If the term is not specified in the contract, it is considered concluded for an indefinite period. Such agreements are also not subject to state registration. This is stated in clauses 10 and 11 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59.
Third, the lease has essential terms. This is an indication in it of the actual address of the premises, its area, the amount of rent. Without such data, the contract is considered not concluded (clause 3 of article 607, clause 1 of article 654 of the Civil Code of the Russian Federation).
When concluding a lease agreement, it is useful to check the landlord's rights to the premises that will be rented out. To do this, you can request a certificate of ownership from an individual. Based on the certificate, the company can order a certificate to obtain information from the Unified State Register of Rights to Real Estate and Transactions with It. From the register, you can find out whether the leased property has not been sold or pledged.
... and tax implications
So, the lease is concluded. Consider what "tax" features should be taken into account by a company that has entered into a contract with an individual. Special attention two questions are required here:
- who will pay income tax and in what case;
- whether it is possible to include the amount of rent in tax expenses.
Lease expenses, in accordance with subparagraph 10 of paragraph 1 of Article 264 of the Tax Code, can be attributed to other costs of the company associated with production and sale. Of course, if two conditions are met: they are economically justified and documented.
Thus, when renting premises from an individual who is not registered as an entrepreneur, these costs can be included in the tax prime cost if:
- a lease agreement has been drawn up;
- an act of delivery and acceptance of rendered services was drawn up;
- there are documents confirming the payment of rental costs. Moreover, such a document must contain all the details of the primary document.
Note: if the company locates its office in the apartment, then rental costs cannot be included in the tax prime cost. The fact is that the placement of organizations in residential premises is not allowed. Documents confirming the lease are issued or not, it does not matter. It is possible to write off the costs in reducing taxable profit only after re-registration of this premises as non-residential (letter of the Ministry of Finance of Russia dated October 27, 2005 No. 03-03-04 / 1/310).Expert “NA” E.N. Tarasova