Daily business. Renting residential and non-residential premises: controversial tax issues Trust or independence
Where can I rent commercial non-residential premises or a warehouse? How to rent retail space for a store? How to rent out commercial real estate correctly?
Hello to everyone who has visited the website of the popular online magazine “HeatherBeaver”! We have an expert with you - Denis Kuderin.
The topic of today's conversation is commercial real estate rental. The article will be useful to businessmen, owners of non-residential premises and all those who are interested in current financial issues.
At the end of the article you will find an overview of the most reliable Russian real estate companies that provide intermediary services in leasing commercial properties.
So let's begin!
1. Why rent commercial real estate?
Successful business activity largely depends on the well-chosen premises for doing business. This is especially true for trade and the service sector. A cozy, well-equipped store in a busy part of the city attracts customers in itself.
The same can be said about offices. Every self-respecting company should have good premises for work and receiving visitors. Even if you sell goods through an online store, you need a place to complete and issue orders, as well as resolve disputes with customers.
Not every businessman, especially a beginner, can afford to purchase non-residential premises. In such cases, renting commercial real estate comes to the rescue.
We list all the advantages of renting:
- relatively low financial costs;
- a simpler documentation procedure compared to purchasing;
- the ability to change the landlord and move to another building at any time;
- a large selection of real estate, especially in big cities.
The reverse process - renting out premises - also has many advantages. First of all, it is a reliable source of passive income. Acquiring ownership of commercial space (retail, office, industrial and others) is a good investment option.
As long as private business exists, its representatives will constantly need premises to conduct business, which means that property owners will have a stable profit without much labor.
Finding suitable premises for a business is a troublesome undertaking. The fastest and most reliable way to find an object is to use the services of professional intermediaries.
There is a detailed article on our website about how modern ones work.
2. How to rent commercial real estate - 5 useful tips
When renting commercial properties, you need to be as careful as possible in choosing them. The parameters and functional characteristics of the premises determine how soon you can start a business activity, and whether the object will fully meet the goals of your business.
First, decide how you will look for suitable premises - on your own or with the help of an agency. The first method assumes an unlimited supply of free time and is associated with various risks. The second option is safer and more reliable.
You will find additional information on the topic of working with intermediaries in the article “”.
Expert advice will help you avoid common tenant mistakes.
Tip 1. Carefully study the hood and ventilation systems
You or your employees will be working in the room, so the presence of working ventilation systems is the most important point. The lack of powerful and autonomous ventilation in a building is a real obstacle to the normal operation of a cafe, restaurant, or grocery store.
Food products must be stored in appropriate conditions, and visitors and sellers should not be disturbed by foreign odors. Moreover, sanitary services simply will not allow you to use the facility as a catering establishment or grocery store if it only has general ventilation.
Tip 2: Focus on loading and unloading areas
A convenient area for loading and unloading goods is another key point for owners of cafes, restaurants, canteens and shops.
It is important that the area where loading and unloading operations will be carried out does not overlook the courtyard of a residential building or the roadway. If you disturb residents or motorists, you will be tormented with complaints.
The issue of adequate power supply is especially relevant for tenants whose business involves the use of energy-consuming equipment - refrigerators, electric ovens, machine tools, etc.
Make sure that the electrical cables in the room are capacious enough to fully meet the needs of the enterprise.
Tip 4. Read the terms of the contract carefully
Before signing your signature on the lease agreement, carefully read the terms and conditions under which you are entering into a deal.
The contract must contain the following points:
- rental terms, cost and method of payment;
- if the premises are rented with equipment, then an inventory of the property must be drawn up;
- liability of the parties for violation of the contract;
- terms of termination of the agreement.
The costs of utility bills, garbage removal, maintenance of the fire protection system and security alarm are usually borne by the tenant. However, the landlord pays for major repairs, if necessary, including replacement of plumbing communications and electrical wiring if they fail.
Discuss in advance with the landlord the issue of property insurance - whether such an agreement will be drawn up, and if not, decide who will pay for losses in the event of unforeseen situations.
It is imperative to check the owner’s title documents - the purchase and sale agreement, an extract from the State Register on the right of ownership.
Make sure that the premises actually belong to the person who is renting it to you. Otherwise, one day the real owner of the object will appear with the appropriate powers. It is also important that the premises are not mortgaged, have not been seized for debts, or have other encumbrances.
A person who is far from the intricacies of housing law should take advantage of professional help when renting or purchasing non-residential premises. For example, you can clarify for yourself all the unclear points on the Pravoved website, a resource where specialists from all areas of jurisprudence work.
You can ask your question even without registering, right on the main page. You will receive a legally correct and competent answer in just a few minutes, and completely free of charge. If your problem requires in-depth study, you will need to pay for the services of professionals, but you have the right to set the amount of the fee yourself.
Step 2. Determine the amount of rent
To find out the optimal rental price, use one of two options. The first is to personally review your city’s databases and determine the approximate price range for renting similar premises. Second, delegate this task to a realtor.
By the way, in addition to real estate agencies, private brokers provide intermediary services. They typically charge 25-50% less for their work than companies. However, private specialists working with non-residential real estate, even major cities– units.
5. If you rent out commercial real estate - 3 main risks for the landlord
Every landlord is concerned about the condition of his property and wants to make a profit from rent, not losses.
We will list the main risks for commercial property owners and show you how to avoid them.
Risk 1. Use of the premises for other purposes
Each well-drafted lease agreement specifies for what purpose and how the leased premises will be used. This also applies to equipment that you rent out along with your rental.
If the tenant promised to use the premises as a warehouse, but installed a retail store in it, you have the right to fine him or terminate the agreement without returning the rental price.
Risk 2. Damage or loss of property
You handed over the facility and equipment to what you thought was a respectable citizen, but he, to use diplomatic language, did not live up to your expectations. Namely, he brought the premises to a state of ruin, broke the equipment, unscrewed the light bulbs and generally behaved like a pig.
In such cases, the owner has the right to demand compensation for damage in full. Moreover, not only repair costs must be reimbursed, but also the market value of the damaged equipment.
Liability is not provided if the object and property were damaged as a result of unforeseen circumstances - for example, a fire or flood.
Risk 3. Tenant’s refusal to pay monthly rent
Sloppy payers should be punished with rubles. However, this is possible, again, if the lease agreement is drawn up according to all the rules. That is, the document must clearly stipulate the terms and amount of monthly payments.
6. If you rent commercial real estate - 3 main risks for the tenant
The tenant may also suffer as a result of illegal or unauthorized actions of the landlord.
Risk 1. Renting premises to which the “lessor” has no legal rights
If the premises are rented to you by a person who does not have the legal rights of the owner to the property, the contract will be considered invalid. To avoid this, require the presentation of title documents.
You can independently obtain an extract from Rosreestr by contacting the Multifunctional Center. The service is paid, but you will know for sure “who’s boss.”
Risk 2. Changing the locks on the premises immediately after making an advance payment
Yes, such situations still occur in nature. You sign an agreement, make an advance payment, receive the keys from hand to hand, and when you want to move into the premises with your property, it turns out that the locks have been changed, and there is no trace of the “owners”.
There is only one way out in such a situation - to contact the police and initiate a criminal case on the fact of fraud.
Risk 3. Sublease
The best way to explain this is with a simple example.
Example
The tenant Andrey, an aspiring entrepreneur, rented space for a store for a year, paying six months in advance. At the same time, the businessman did not check the title documents, relying on the honesty of the lessor.
After a month of successful trading, the real owner showed up in the store with a full set of original documents. He politely asked the tenant to move out of the occupied space. Andrey tried to find a subtenant in order to at least get his money paid in advance back, but the enterprising intermediary never responded to either calls or SMS.
Bottom line: Deal directly with the owner. At the very least, he should be aware of all the manipulations that occur with his property.
7. Professional assistance for tenants and landlords - review of TOP-3 real estate agencies
Finding a qualified intermediary is a difficult task. To help readers, we have compiled a review of the most reliable companies in Russia working with commercial real estate.
1) Agency.net
Real estate management agency. Will help landlords and tenants rent and rent: office, retail space, workshop, warehouse, mansion and any other commercial real estate. The company employs only experienced and qualified lawyers and realtors.
A significant advantage of the company is its professional approach, the presence of a detailed website, and the development of an individual strategy for each client of the office. There are no real estate services that the company’s specialists cannot provide to users.
Commercial real estate in Moscow and the region - the main specialization of the company. Respect has been operating on the market since 2004. The agency initially set its goal to provide clients with the most wide range services related to the rental, purchase and sale of real estate.
The less prestigious the area, the more profitable it is to rent housing there, Cian analysts have found out. Apartments in New Moscow, Kapotnya, Lyublino and Kuzminki pay for themselves the fastest, but they are also more difficult to sell than housing in prestigious areas
Attractive Kapotnya
The average yield from long-term rental of an apartment in Moscow in the first half of 2016 was 5.5%, according to a study prepared by specialists from the Cian company. In other words, you can pay for an apartment in the capital by renting it out in just over 18 years. However, for different regions the period differs significantly.
As it turns out, the owners of the most expensive real estate in the city center find it most difficult to recoup the funds spent on their purchase. The leaders of the anti-rating included the Arbat, Khamovniki and Gagarinsky districts. Here, the capitalization rate (the relationship between the price of an asset and the amount of annual income received from renting it out) fluctuates in the range of 4-4.5%, Cyan points out. Thus, having bought an apartment in these areas, you will have to wait 22-25 years for a return on investment.
Buying an apartment in the least prestigious areas, on the contrary, is the most promising investment decision, according to the research data. The maximum profit for investors will come from renting out apartments in the settlements of Pervomaiskoye and Marushkinskoye in New Moscow, as well as in the Kapotnya district in the South-Eastern Administrative District. Capitalization rates here range from 6.4 to 6.7%. That is, the rentier will be able to recoup their investments in 15-15.6 years. The leaders in terms of profitability (6.7%) are three-room apartments near the Moscow Oil Refinery in Kapotnya.
This effect is due to the fact that as you move away from the city center, rental rates do not decrease as much as the cost per square meter, explains Cian.
The study is based on an analysis of over 1 million advertisements for the sale and rental of housing in Moscow, posted on the cian.ru portal in 2012-2016. At the same time, rental rates and housing costs were discounted taking into account the dynamics of prices and rental rates.
The Miel-Arenda company provides approximately the same figures as Cian, although without division by region: the capitalization rate for economy-class apartments in the capital ranges from 4 to 7% per annum.
One-room apartments are more popular
Renting studio apartments has grown in popularity over the past year. “Their share in the demand structure increased by 3 percentage points over the year. and amounted to 58%, notes General Director of the Domofond.ru portal Eric Segerborg. — At the same time, the number of contact requests for advertisements about offers for rent of two-room and three-room apartments, on the contrary, became lower by 1 percentage point. - 34% and 7% respectively.” The average rental rate also decreased over the past year in all housing segments by 3%. Take off one-room apartment in Moscow you can rent for an average of 30.8 thousand rubles, a two-room apartment for 43.3 thousand rubles.
Rentier rule
Cian’s data confirms the so-called golden rule of the rentier, says Sergei Shloma, director of the secondary market department at Inkom-Real Estate: “The smaller the living space, the cheaper it is, the more income it brings. From this point of view, purchasing luxury real estate for rent is a unique pleasure: the profitability of elite real estate is minimal compared to standard housing.”
The yield from leasing luxury real estate varies between 1-4% of the initial investment amount, depending on the cost per square meter, decoration, equipment and furniture, estimates Yulia Kovaleva, director of the urban real estate rental department of Kalinka Group. Distance from the center also often benefits rentiers. “In our database there is an apartment in Butikovsky, 5, in the Ostozhenka area, which is rented for $10 thousand per month,” Kovaleva gives an example. “At the same time, the owner recently rented out a relatively cheap apartment on Taras Shevchenko embankment, 1/2, for $15 thousand.”
More democratic options are not only more profitable, but also faster. For example, economy-class apartments are now sold out within a few days on average, but last year just a few hours were enough, estimates Oksana Polyakova, deputy director of the apartment rental department at Inkom-Real Estate. “Today people choose comfort and business class apartments in about two weeks from seven to ten options,” she continues. “Last year we looked at three or four apartments for no more than four days.” Elite apartments can be on display for as long as desired until the owner decides to adequately reduce the rental rate.
If we take the statistics on average for the area, then Cian’s conclusions are logical - cheaper areas bring greater profitability, agrees Anna Moiseeva, general director of the Home Staging real estate agency. On the other hand, profitability always depends not only on the area, but also on the specific apartment. There are several signs of a liquid object, the expert lists: small footage, low price, proximity to the metro and the center. “It is important to always remember that at some point the apartment that is currently being rented will still have to be sold,” Moiseeva notes. “And then factors that are beneficial to the rentier will make it less liquid for the seller.”
Buy closer to the center
“The duration of exposure of apartments for sale, of course, depends on the quality of the apartment itself: the adequacy of its price, house and floor,” notes Anna Moiseeva, general director of the Home Staging real estate agency. “But in general, an apartment in a more prestigious area can be on display for about two to three months, versus six months or more for less marketable apartments in remote areas.”
The fact that real estate located closer to the center sells better is evidenced by Rosreestr data. For example, in the first half of 2016, almost 15% fewer transactions involving the transfer of rights to residential premises were registered in the Moscow region than during the same period in 2015: 294.7 thousand and 345.4 thousand transactions, respectively. These statistics mainly describe transactions in the secondary housing market.
Demand for new buildings is also decreasing. From January to June 2016, the number of agreements for participation in shared housing construction (DDU) in the Moscow region decreased by 4%, to 41.3 thousand.
In Moscow, on the contrary, transactions with both new and secondary real estate began to be concluded more often. The total volume of transactions with the transfer of ownership of housing increased by 10.8%, to 62.7 thousand.
The popularity of Moscow was influenced by the fact that over the past year and a half, Moscow developers have brought to the market a record volume of new projects that can compete in price with the Moscow region, explains Tatyana Kalyuzhnova, head of IRN-Consulting. Discounts also played a role. “In about 30% of projects, with 100% payment, you can get a 5-10% discount,” notes Kalyuzhnova.
Average price of 1 sq. m in new buildings in Moscow (in the area from the Third Transport Ring to the Moscow Ring Road), according to IRN, today amounts to 172.3 thousand rubles. In the Moscow region at the end of June it amounted to 85.4 thousand rubles. for 1 sq. m, according to a study by the Miel-Novostroiki company. But when looking at specific offers, the benefits of buying an apartment in Moscow become more clear. For example, in mid-June the Zheldoripoteka company launched a new residential complex “Atmosphere” in the Lyublino South-Eastern area administrative district. At the stage of preparing the site for construction work, the cost of one- and three-room apartments with an area of 34.9-76.9 square meters. m is 4.1-11.1 million rubles, or 115-145 thousand rubles. for 1 sq. m.
For one “square” in the Opalikha O3 residential complex, located in the Moscow region, 13 km from the Moscow Ring Road, you will have to pay an average of 124 thousand rubles, and the price of apartments, according to the developer’s website, is estimated from 2.4 million to 6.86 million rub. (for a one- and three-room apartment, respectively).
Even the most profitable investments in the long-term rental market are significantly inferior in profitability to traditional bank deposits. According to the Central Bank, the basic level of yield on ruble deposits with a maturity of more than one year in July was 10.7% per annum.
Publication
Property can be leased if it does not lose or change its natural properties during use. The lease agreement must contain data that makes it possible to definitely establish which property is to be transferred as the leased object. If under a lease agreement it is impossible to determine which property is being leased, then such an agreement is considered not concluded and the parties to such an agreement do not have any rights or obligations.
Only its owner has the right to rent out property. However, a person who is not the owner, but authorized by the owner to rent out property, can also act as a lessor.
The rental period of the property is determined by the contract. If the contract does not specify a period, then the contract is considered to be concluded for an indefinite period. In this case, each of the parties has the right to cancel the agreement at any time by warning the other party one month in advance, and when renting real estate - three months in advance. In this case, the agreement may establish a different period for warning of termination of the lease agreement for an indefinite period.
The lessor is responsible for all shortcomings of the leased property, even if he was not aware of them at the time of concluding the contract. If the tenant, after accepting the property, discovers certain shortcomings, then he has the right:
demand that the landlord eliminate them free of charge;
independently correct these shortcomings and demand reimbursement of your expenses for their elimination in a simultaneous payment;
eliminate the deficiencies on your own and deduct the amount of expenses incurred from the rent, notifying the lessor. The tenant also has the right to demand a proportionate reduction in the rent, and he can either eliminate or not eliminate the identified deficiencies;
not to eliminate the shortcomings, but to terminate the contract.
The lessor is not responsible for the defects of the leased property in the case where these defects were agreed upon when concluding the lease agreement or were known to the tenant in advance or should have been discovered by the tenant during an inspection of the property or checking its serviceability when concluding the agreement or transferring the property for rent .
Payment of utilities by the tenant
The lease agreement is a compensation agreement. The amount of rent and payment terms are determined by the contract. In addition, the tenant is required to pay utilities for the leased property. There are several possible ways for the tenant to reimburse utility costs:
fixed rent, which includes the cost of utilities. The tenant pays the landlord rent every month in the amount specified in the contract;
rent, consisting of a fixed and variable part, in particular, a constant rent is a payment for the area of the rented premises, a variable rent is a payment for utilities;
rent excluding the cost of utilities. The tenant independently enters into agreements with utility services, or an agency agreement can be used to reimburse utility costs.
Rent including the cost of utilities
Rent including utility payments causes the least amount of controversy with the tax authorities, but is a less profitable option. The cost of some services directly depends on the size of their consumption, and it is not always possible to determine in advance how much, for example, electricity a tenant will consume. Therefore, a situation may arise when the utilities actually consumed by the tenant are not covered by the amount of utility payments included in the rent.
Lessor's account. Rent, including utility bills, is income from the sale of services for leasing premises. The object of taxation is the sale of services for the provision of property for rent.
IN in this case the entire amount of the rent is payment for the services of the lessor in providing the property for rent. Therefore, the lessor must calculate VAT on full amount rent and issue an invoice to the tenant for the entire amount of rent. At the same time, highlight separate line The amount of utility payments in the invoice and invoice for payment to the landlord is not necessary (letter of the Ministry of Finance of Russia dated September 19, 2006 No. 03-06-01-04/175).
As for the VAT amounts presented by utility service providers, the lessor can deduct them in full in the generally established manner, since services are purchased for transactions subject to VAT (provision of property for rent) (FAS resolutions Northwestern district dated 10.01.07 No. A05-7971/2006-13, FAS of the North Caucasus District dated 07.11.07 No. F08-6607/07-2723A - left in force by the Determination of the Supreme Arbitration Court of the Russian Federation dated 29.02.08 No. 2615/08).
Tenant's account. The tenant, by paying the rent, which includes utility bills, reimburses the landlord for the cost of utility expenses. Since the lessor has issued an invoice for the entire amount of the rent, the tenant has the right to deduct the entire amount of VAT related to the rent, including utilities (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated March 10, 2009 No. 6219/08, FAS Moscow District dated April 24, 2009 No. KA-A40/3091-09).
Thus, the tenant has the right to deduct VAT if the rent includes a fixed part and a variable part equivalent to the amount of utility bills.
Rent consisting of fixed and variable parts
This method of reimbursing the landlord’s utility expenses causes the most controversy regarding the issues of accepting VAT amounts for deduction by both the landlord and the tenant.
Lessor's account. There are two positions on the question of whether the lessor has the right to deduct VAT amounts on services consumed by the lessee. According to the first position, the lessor can deduct only that portion of the VAT that relates to the cost of utilities consumed by him personally. The landlord does not sell utilities and does not receive revenue from this operation, so he does not have to issue an invoice to the tenant for the amount of utilities he consumes. Therefore, upon receiving cash, transferred by the tenant to the landlord in order to compensate the landlord's expenses for paying for these services, there is no subject to VAT taxation (letters of the Ministry of Finance of Russia dated December 31, 2008 No. 03-07-11/392, December 26, 2008 No. 03-07-05/51, Federal Tax Service of Russia in Moscow dated May 21, 2008 No. 19-11/48675, resolution of the Federal Antimonopoly Service of the Volga Region dated March 4, 2008 No. A65-8421/2007-SA1-37, Federal Antimonopoly Service Central District dated 14.02.08 No. A48-1629/07-6, Determination of the Supreme Arbitration Court of the Russian Federation dated 29.01.08 No. 18186/07).
In addition, the landlord does not have the right to reissue invoices to the tenant, since in this case he is not an intermediary between the tenant and the service provider and, therefore, the provisions of clauses 3 and 7 of the Rules for maintaining logs of received and issued invoices do not apply to him , purchase books and sales books when calculating value added tax.
Therefore, it follows that the lessor:
accepts for deduction only that part of the VAT that falls on the share of services consumed by him;
VAT, which accounts for the share of services consumed by the tenant, is included in the cost of these services;
presents the tenant with the cost of utilities including VAT (provided by the utility services).
However, there is another position: the lessor in such a situation has the right to apply a deduction (resolutions of the Federal Antimonopoly Service of the Ural District dated December 11, 2008 No. Ф09-9211/08-С2, Federal Antimonopoly Service of the Central District dated March 28, 2007 No. A48-4688/06-19). The arguments for this position are as follows. The lessor is obliged to provide the premises for rent in the condition established by the contract, i.e. in a condition suitable for use. The landlord enters into contracts with utility services, which present him with the VAT amount and issue an invoice for the cost of services provided. Thus, the purchase of utilities by the landlord is one of the necessary conditions for renting out the premises. Consequently, these services are purchased to carry out transactions subject to VAT, since services for leasing property are subject to VAT.
If the lessor fulfills all the conditions necessary for applying a tax deduction, then he has the right to accept the entire amount of VAT presented by utility service providers for deduction in full. In this case, for reimbursement to the tenant, he presents the cost of utilities without taking into account the VAT presented by the utility services.
Tenant's account. There are also two positions on the issue of the legality of the tenant’s use of VAT deductions.
According to the first position, the tenant cannot apply the deduction, since the landlord does not have the right to issue him an invoice. Thus, the tenant does not comply with one of the conditions for the emergence of the right to deduction, established by paragraph 1 of Art. 172 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated March 24, 2007 No. 03-07-15/39, Federal Tax Service of the Russian Federation for Moscow dated July 16, 2007 No. 19-11/067415, resolutions of the Federal Antimonopoly Service of the West Siberian District dated September 1, 2008 No. F04- 5318/2008(10782-A46-40), 03.24.08 No. F04-2074/2008(2736-A45-41).
If the lessor does not issue an invoice, then the amount of VAT attributable to the share of consumed utilities can be taken into account by the lessee as part of expenses. According to the second position, the tenant has the right to deduct the amount of VAT on the basis of re-issued invoices, subject to compliance with other requirements established by clause 2 of Art. 171, paragraph 1, art. 172 of the Tax Code of the Russian Federation (resolutions of the Federal Antimonopoly Service of the Moscow District dated March 17, 2009 No. KA-A40/1688-09, December 25, 2008 No. KA-A40/12036-08-p, the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 25, 2009 No. 12664/08). Arguing its decision, the court indicated that use of the rented premises is possible only if it is provided with heat, light, water, etc. Therefore, the provision of utilities is inextricably linked with the provision of rental services.
Rent excluding the cost of utilities
In this case, the tenant enters into a separate agreement to pay for utilities. At the same time, in order for his rights not to be violated, the landlord must approve the method of mutual settlements between the tenant and utility services.
Since the tenant works directly with utility services, invoices are issued to him and not to the landlord, so he has the right to deduct VAT on utility costs.
Agency agreement as one of the ways to pay for utilities between the landlord and the tenant
To process compensation for utility payments, many organizations enter into an agency agreement, according to which the landlord acts as an agent and the tenant as a principal. Acting as an intermediary between utilities and the tenant, the landlord can reissue the invoice received from the utility services to the tenant, and the tenant can deduct the VAT indicated in this invoice.
Since the lessor does not carry out transactions for the sale of utilities, he does not have obligations to calculate and pay VAT. However, he becomes obligated to pay VAT on the value of his remuneration. An intermediary agreement is paid, therefore, it is advisable for the parties to such an agreement to provide for the payment of remuneration for the lessor performing the functions of an intermediary.
On the issue of applying a VAT deduction by a tenant from the cost of utilities paid through an intermediary landlord, decisions of arbitration courts are ambiguous. For example, the resolution of the Federal Antimonopoly Service of the Moscow District dated September 25, 2008 No. KA-A40/8932-08 states that the tenant has the right to apply a deduction for utilities paid through an intermediary landlord. If the tenant has an invoice reissued by the landlord for payment of utility services received from specialized organizations, then he has the right to deduct the amount of VAT on utility costs, subject to compliance with other requirements established by clause 2 of Art. 171, paragraph 1, art. 172 of the Tax Code of the Russian Federation (see also the resolution of the Federal Antimonopoly Service of the North-Western District dated 09/08/08 No. A66-109/2008).
However, the resolution of the Federal Antimonopoly Service of the West Siberian District dated August 27, 2008 No. Ф04-5231/2008(10532-А03-25)) states that the mediation agreement actually determines the procedure for reimbursement of utility costs. Since the landlord does not sell utilities, therefore, this operation is not subject to VAT, and the tenant does not have the right to deduct the amount of VAT according to the re-issued invoices.
Leasehold improvements
During the lease term, the tenant may make repairs to the rental property. Improvements are divided into separable and inseparable.
Separable Improvements
Separable improvements include improvements that can be separated from the leased property without causing harm and subsequently used separately from it. Separable improvements to the leased property made by the tenant are his property, unless otherwise provided by the contract (Article 623 of the Civil Code of the Russian Federation).
Income tax. The lessee's investments related to the production of separable improvements form the cost of a separate fixed asset item in his accounting. Depending on the cost and period of use of the improvements, the tenant's expenses for their implementation are recognized as costs for the acquisition of depreciable property or are included in its current expenses.
If the initial cost of improvements is more than 20,000 rubles, their period beneficial use exceeds 12 months, and the improved object is used to generate income, separable improvements are recognized as depreciable property. The tenant pays off the cost of these improvements by calculating depreciation.
The lessee begins to accrue depreciation on separable improvements taken into account as part of the depreciable property from the 1st day of the month following the month in which this improvement was put into operation.
For separable improvements, the lessee has the right to apply a depreciation bonus by simultaneously including in the expenses of the reporting or tax period the costs of capital investments in the amount of no more than 10% (for fixed assets belonging to the third to seventh depreciation groups - no more than 30%) of the initial cost of the separable improvements. The possibility of applying bonus depreciation must be provided for in the taxpayer's accounting policy.
VAT. The tenant has the right to deduct VAT presented as part of the cost of separable improvements if all the conditions provided for in Art. 171 and 172 of the Tax Code of the Russian Federation. Separable improvements must be used in activities subject to VAT, they must be taken into account and have an invoice with the allocated tax amount.
Property tax. In accounting, the tenant's expenses for the creation (purchase) of separable improvements form the initial cost of an item of fixed assets or inventories. The cost of separable improvements included in inventories is written off as an expense at the time of commissioning. To ensure the safety of these objects, it is advisable to organize proper control over their movement.
Separable improvements that the tenant records as fixed assets must be included in the property tax base. If separable improvements are accounted for as inventories, then they are not subject to property tax.
Inseparable improvements
Inseparable improvements that cannot be separated from the leased object itself are recognized as the property of the lessor and are transferred to him at the end of the lease term. Improvements to the leased property may be made with or without the consent of the lessor. In this case, the cost of inseparable improvements made without the consent of the lessor is not reimbursed. The cost of permanent improvements made at the tenant's own expense and with the consent of the landlord must be reimbursed by the landlord upon termination of the lease.
Income tax. Capital investments in leased fixed assets in the form of inseparable improvements made by the lessee with the consent of the lessor are recognized as depreciable property.
These capital investments are depreciated in the following order:
capital investments, the cost of which is reimbursed to the lessee by the lessor, are depreciated by the lessor in the manner established by Chapter. 25 Tax Code of the Russian Federation;
capital investments made by the lessee with the consent of the lessor, the cost of which is not reimbursed by the lessor, are depreciated by the lessee during the term of the lease agreement, based on depreciation amounts calculated taking into account the useful life of the leased fixed assets.
Lessor's account. In the tax accounting of the lessor, the cost of gratuitously received inseparable improvements that are not reimbursed to the lessee is not recognized as taxable income due to subclause. 32 clause 1 art. 251 Tax Code of the Russian Federation. At the same time, the lessor has no right to increase the initial cost of the leased item returned to him by the amount of inseparable improvements. In addition, the lessor cannot separately depreciate capital investments in the form of permanent improvements made without his consent and subsequently transferred to him free of charge. This right is granted to the landlord only on the condition that he reimburses the tenant for the cost of the improvements made.
In accordance with paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, capital investments, the cost of which is reimbursed by the lessor to the lessee, are depreciated by the lessor in the general manner. Depreciation begins on the 1st day of the month following the month in which the depreciable property in the form of inseparable improvements was put into operation.
The lessor must be guided by the general procedure for calculating depreciation after an increase in the original cost of the property, i.e. all conditions must be met, as if capital investments in the form of reconstruction (modernization) were carried out by the lessor himself. In addition, the lessor has the right to take advantage of the depreciation bonus and write off at a time up to 10% (30% for leased objects belonging to depreciation groups 3–7) of the costs of capital investments in the form of inseparable improvements.
Tenant's account. The lessee may depreciate the inseparable improvements made by him to the leased property if two conditions are met:
capital investments were made with the consent of the lessor;
the cost of capital investments made is not reimbursed by the lessor.
If these conditions are met, capital investments made by the lessee in the form of inseparable improvements to the leased property are amortized by the lessee during the term of the lease agreement.
Capital investments in the form of inseparable improvements made by the tenant are inextricably linked with the leased object itself, therefore, to calculate the depreciation rate for them, the useful life established by the Classification of fixed assets for the leased object is used (letter of the Ministry of Finance of Russia dated May 14, 2008 No. 03-03-06 /2/52).
Thus, when determining the useful life, the lessee must be guided by the terms established for the depreciation group into which the leased object falls. It is on the basis of this period that the amount of depreciation for the inseparable improvements made will be calculated (letter of the Ministry of Finance of Russia dated May 14, 2008 No. 03-03-06/2/52).
If an organization rents, for example, premises in a building belonging to the 10th depreciation group and makes inseparable improvements to these premises, then the useful life of the improvements made will have to be determined in accordance with the 10th depreciation group. The minimum possible useful life in this situation would be 361 months. (lower limit for the 10th depreciation group).
Depreciation is accrued by the tenant from the next month after the improvements he made were put into operation. After the lease term ends and the leased object is returned to the lessor, depreciation ceases. If the useful life of the leased property is longer than the term of the lease agreement, then part of the cost of capital investments in the form of inseparable improvements will not be depreciated, therefore, the lessee will not be able to recognize part of the costs of the inseparable improvements made.
As for the application of the depreciation bonus, for capital investments in leased fixed assets, a special procedure for calculating depreciation is established, provided for in paragraph 1 of Art. 258 of the Tax Code of the Russian Federation, therefore, the rules for applying depreciation bonuses for inseparable improvements do not apply to the tenant (letters of the Ministry of Finance of Russia dated May 22, 2007 No. 03-03-06/2/82, May 24, 2007 No. 03-03-06/1/302).
Inseparable improvements made by the tenant without the consent of the landlord are not subject to depreciation. According to paragraph 1 of Art. 256 of the Tax Code of the Russian Federation, capital investments in the form of inseparable improvements in leased fixed assets are included in depreciable property only if these improvements have been agreed upon with the lessor.
If, under the terms of the agreement, the lessor, at the end of the lease period, reimburses the tenant for the residual value of the improvements made by him, the amount of compensation will be included by the tenant in income (as part of sales proceeds), and the residual value of the improvements will be taken into account as expenses on the basis of Art. 268 of the Tax Code of the Russian Federation (letters of the Ministry of Finance of Russia dated 03/07/08 No. 03-03-06/1/159, 02/05/08 No. 03-03-06/2/12).
Methods for calculating depreciation. Since 2009, depreciation for all depreciable property items has been calculated in the manner specified in the organization’s accounting policies. However, in paragraph 3 of Art. 259 of the Tax Code of the Russian Federation lists types of property that are always depreciated only using the straight-line method: buildings, structures, transmission devices included in the eighth to tenth depreciation groups.
If the tenant will depreciate capital investments in leased property, which belongs to the eighth to tenth depreciation groups, then depreciation on them will have to be calculated using the straight-line method. The nonlinear method cannot be applied to such capital investments (letter of the Ministry of Finance of Russia dated May 10, 2006 No. 03-03-04/1/441).
With both the linear and non-linear methods, the lessee accrues depreciation on inseparable improvements from the 1st day of the month following the month in which the property was put into operation.
Depreciation period. For a tenant who has made inseparable improvements to the leased property, it is fundamental how the relations of the parties are formalized at the end of the lease agreement. If the contract is extended (renewed), then the original contract under which the improvements were made continues to be in effect. Consequently, the tenant, even after the extension, can continue to charge depreciation on the improvements he has made (letter of the Ministry of Finance of Russia dated March 20, 2007 No. 03-03-06/1/167).
If the parties renew the lease agreement, then the previous agreement terminates and a new agreement comes into force. In this case, the tenant loses the right to amortize the improvements made by him under the old lease agreement, which has ceased to be valid (letter of the Ministry of Finance of Russia dated October 8, 2008 No. 03-03-06/2/140).
VAT. The transfer to the lessor of inseparable improvements to the leased premises, made by the lessee on its own or with the involvement of contractors, is subject to VAT, and he is obliged to present for payment to the lessor the amount of VAT on the cost of inseparable improvements (letter of the Ministry of Finance of Russia dated August 29, 2008 No. 03-07-11/290) .
The tenant is obliged to charge VAT and draw up an invoice regardless of whether such transfer takes place on a paid (including against rent) or gratuitous basis and who performed the work - the tenant or the contractor (FAS PO resolution No. A12 dated June 24, 2008 -18629/07, Far Eastern Education Department dated 10.20.08 No. F03-4340/2008).
At the same time, the FAS Moscow District, in its resolution dated September 30, 2008 No. KA-A40/9153-08 in case No. A40-5452/08-108-22, indicated that inseparable improvements to the leased premises are the property of the lessor, therefore their transfer cannot be recognized implementation, and the object of VAT taxation does not arise (see also the resolution of the Federal Antimonopoly Service of the North-Western District dated April 21, 2006 in case No. A56-7638/2005).
Transfer of ownership of goods, work performed, services provided free of charge is recognized as the sale of goods (work, services). Thus, transactions involving the gratuitous transfer of inseparable improvements by the tenant are included in turnover subject to VAT (as transactions involving the transfer of work results).
VAT must be charged at the moment when the inseparable improvements are transferred to the lessor. As a rule, such a transfer occurs at the end of the lease agreement, when the leased property (together with inseparable improvements) is returned to the lessor. When transferring permanent improvements to the lessor, the lessee is required to issue an invoice and register it in the sales book.
Since the gratuitous transfer of inseparable improvements is subject to VAT, the tenant has the right to deduct the VAT paid by him when making inseparable improvements. To do this, he must fulfill the conditions provided for in Art. 171 and 172 of the Tax Code of the Russian Federation (resolution of the Federal Antimonopoly Service of the Moscow District dated 02.13.07 and 02.19.07 No. KA-A40/450-07 in case No. A40-31107/06-116-180). In turn, the lessor will not be able to deduct VAT on inseparable improvements received free of charge. After all, with a gratuitous transfer, the tenant does not present the amount of VAT to the lessor for payment based on the invoice (letter of the Ministry of Finance of Russia dated March 21, 2006 No. 03-04-11/60).
Property tax. Capital investments made by the tenant in the form of inseparable improvements to leased objects, accounted for as part of the tenant's fixed assets, reimbursed (not reimbursed) by the lessor, are subject to property tax until their disposal under the lease agreement (letter of the Ministry of Finance of Russia dated October 24, 2008 No. 03- 05-04-01/37). It is advisable for the tenant not to wait for the end of the lease term and to transfer the improvements made to the landlord immediately after completion of the work. This will allow the tenant to avoid disagreements with the tax authorities.
In the lessor's accounting, inseparable improvements made by the lessee increase the initial cost of the leased item or are accounted for as a separate fixed asset item. With any of the accounting options, the lessor is required to pay property tax on the cost of improvements. It includes the cost of inseparable improvements in the property tax base, starting from the moment when the improvements are received from the tenant under the acceptance certificate or other similar documents.
Lessor – foreign organization
A foreign company that owns a property in Russia by right of ownership can act as a lessor of non-residential premises.
According to regulatory authorities, leasing property by a foreign organization can lead to the formation of a permanent representative office if it is carried out on a systematic basis (order of the Ministry of Taxes of Russia dated March 28, 2003 No. BG-3-23/150, letter of the Federal Tax Service of Russia for Moscow dated January 19 .07 No. 20-12/05685).
Rent received by a foreign organization is subject to income tax at a rate of 20%.
Transactions involving the leasing of real estate located in Russia by a foreign company are subject to VAT in accordance with the generally established procedure.
When a foreign organization acquires ownership of real estate on the territory of Russia, it becomes a payer of property tax and is obliged to register with the tax authority. Consequently, when leasing such property, it must independently calculate and pay VAT on the rent to the budget.
Moreover, if the leasing of real estate by a foreign company is not regular, then this activity is not recognized as entrepreneurial. Consequently, the responsibilities for calculating and paying income tax and VAT to the budget are assigned to the Russian organization (tenant), recognized as a tax agent. In turn, if the activity of a foreign company in leasing real estate forms a permanent establishment, then the responsibilities for calculating and paying income tax and VAT to the budget are assigned to the representative office.
Renting housing for employees – foreign citizens
Companies employing the labor of foreign citizens can provide them with free housing or pay monetary compensation to pay apartment rent for the period of working activity. The question of whether in this case income subject to personal income tax arises for a foreign worker, and the object of UST taxation is controversial.
There are two positions. According to the first position, when an employer provides housing to a foreign citizen as provided for in an employment contract, income arises that is subject to personal income tax and unified social tax.
The second position is that taxable income does not arise for foreign citizens when an employer provides housing, since free provision of housing refers to compensation that is not included in the wage system and its purpose is to reimburse employees for costs associated with performing work duties. Payment for housing should be considered as a type of expense for settling into a new place of residence.
The employer is obliged to reimburse expenses when an employee moves to work in another area, including expenses for settling into a new place of residence. Reimbursement of these expenses is compensation to the employee related to the performance of his work duties. Accordingly, the object of UST taxation does not arise (Resolution dated 12.05.2008 N 09AP-3569/2008-AK).
Compensation payments related to the free provision of residential premises are also not subject to personal income tax. Since the obligation to provide housing is assigned to the employer, no taxable income arises when paying for housing to foreign employees (resolution of the Ninth Arbitration Court of Appeal dated May 12, 2008 No. 09AP-3569/2008-AK, FAS Central District dated December 11, 2007 No. A48-717/ 07-2, Determination of the Supreme Arbitration Court of the Russian Federation dated April 23, 2008 No. 4623/08).
Comments
09/21/2015 Lyudmila
The conclusion of an Agency Agreement is generally problematic, because contracts for utility services have already been concluded at the time the operation of the real estate begins, and tenants (aka Principals) appear and change later. Such an Agency Agreement (letter of the Ministry of Finance of Russia dated April 14, 2011 No. 03-11-06/2/55) can be challenged by the inspectorate
Answer
Add a comment
Related materials
Found 19 materials out of 2124
Expand all entries Collapse all entries Sort by: Name Date
18.02.2011 Paper and Internet media 22170
Let's consider general provisions about rent. Property can be leased if it does not lose or change its natural properties during use. The lease agreement must contain data that makes it possible to definitely establish which property is to be transferred as the leased object. If under a lease agreement it is impossible to determine which property is being leased, such an agreement is considered not concluded...
20.04.2011 Specialist Column 2162
The question is not simple and, frankly, still debatable. The history of the issue goes back to our past, in the sense that disputes about what is considered a service began and were vigorously discussed in the process of forming judicial practice on gratuitous loan agreements, where the Federal Tax Service Inspectorate, perhaps, for the first time developed and put into practice the position: Gratuitous loan - service. Services in the field of business activities between commercial organizations up to...
13.11.2009 Specialist Column -1 +1 1 14817
Good afternoon, Olga Viktorovna! In accordance with Article 146 of the Code, operations for the sale of goods (work, services) in the territory Russian Federation are recognized as subject to taxation under value added tax. In order to resolve the issue of the presence or absence of sales of works (services) subject to value added tax in the Russian Federation, in the case where the seller and buyer of works (services) are located in...
12.02.2009 Specialist Column 2193
There are many risks here due to the fact that the scheme is not entirely clear. That is, on the one hand, there is a concluded agreement on marketing services, where the non-resident is the Customer, and the Contractor is located and performs work on the territory of the Russian Federation. In this regard, we draw your attention to currency control and possible risks for the Russian side associated with the need to bear the burden of the duties of a tax agent for VAT due to the provisions of subparagraph 4 of paragraph 1...
01.10.2009 Paper and Internet media -1 +1 1 18487
Peculiarities of the subject composition of lease legal relations with the participation of non-residents According to the current legislation, foreign companies can participate in the leasing of real estate on the territory of the Russian Federation in the following ways. As the owner of real estate and direct lessor. In this case, the key question is whether the non-resident has a permanent establishment (in the tax sense)...
01.07.2019 Paper and Internet media 260
A Russian Internet project begins with an IT developer. The company gets a website and large customers, but then difficulties begin. For example, not all foreign counterparties are ready to transfer money to Russian accounts. Therefore, the developer has to register a company abroad. Let's consider what benefits a foreign company will bring to Russian IT developers. Foreign counterparties are not ready to transfer money to...
02/26/2015 Seminar 3485
Let's try to clarify and supplement your question somewhat in order to bring it closer to the legal and tax “structures”. We will use the scientific method of “acceptable guessing”. So, there is an Agreement for the provision (Executor-Buyer-1) of service X. There is also Buyer-2, who, according to your plan and business model, acquires the rights of claim for this service from Buyer-1. That is, to put it another way, the Parties (Buyer-1 and Buyer...
The monthly rent for the use of the Premises and adjacent Areas and Parking Spaces (hereinafter referred to as the “Rent”) consists of:
Constant or fixed part of the rent
- The fixed part of the rent is the sum of money charged for renting the Premises and including VAT 18%. The Fixed portion of the rent is calculated at the following rates per square meter of rented Premises:
- ___.00 rubles per month per square meter of rented area of Warehouse Premises, including VAT;___.00 rubles per month per square meter of rented area of Office Premises, including VAT;
- ___.00 rubles per month per square meter of rented area Office premises, including VAT. The cost of the Fixed part of the rent includes the Services specified in the List of Services (Appendix No. 5). The cost of the Fixed part of the rent includes the use of the Property by the Tenant.
Variable part of the rent
The variable part of the rent includes (consumption limits are set in Appendix No. 6 - the amount of expenses for consumed electricity, calculated at the tariffs established by the organizations supplying the relevant services in accordance with meter readings (the amount of electricity provided, kW); - the amount of expenses for water consumption and sewerage, the calculation of which is carried out according to tariffs established by the organizations supplying the relevant services in accordance with the readings of metering devices or in accordance with the calculation of the consumption rate agreed upon by the parties. - the amount of expenses for telephony and Internet traffic, the calculation of which is made on the basis of tariffs, established in Appendix No. 6. Fees for the use of Parking Spaces. Payments are calculated at the following rates: 7500.0 rubles per month (not subject to VAT), for one Parking Space for trucks; 1500.0 rubles per month (not subject to VAT). VAT) for one Parking Space for passenger vehicles.
Changing the rent in the lease agreement
The Lessor reserves the right to change the cost per square meter of the rented Premises on its own initiative, but not more than 1 (One) time per year from the Start Date of the lease and no more than 5% of the previous cost per square meter of the rented Premises, with prior notice to the Tenant in less than 1 (one) month. In this case, the parties sign an additional agreement to this agreement. The lessor has the right to unilaterally increase the rate of the variable part of the rent depending on changes in the tariffs of organizations providing the relevant services. In this case, the Lessor shall attach to the written notice of changes in the cost of utilities and operating services sent to the Tenant the relevant documents confirming the fact of changes in tariffs or cost of services.
We accept lease agreements for expert evaluation. We are engaged in drafting complex contracts.
The principle of freedom of contract allows us to establish a mechanism for determining the amount of rent that is convenient for the tenant and the landlord. This may be a fixed amount paid monthly, or an amount that includes reimbursement of maintenance costs for the leased facility. In the latter case, the wording of the contractual provision requires special attention.
The procedure, conditions and terms of payment of rent are determined by the lease agreement (clause 1 of Article 614 of the Civil Code), and in their absence, the procedure, conditions and terms of payment usually applied when leasing similar property under comparable circumstances are applied. A similar rule is established in paragraph 3 of Art. 424 of the Civil Code of the Russian Federation for the contract price: if it is not included in the text of the agreement, the execution of the contract must be paid at the price that, under comparable circumstances, is usually charged for similar goods, work or services.
But when concluding a real estate lease agreement, this rule cannot be applied, since rent is its essential condition (Article 432 of the Civil Code of the Russian Federation). In the absence of a condition agreed upon in writing by the parties regarding the amount of rent, the real estate lease agreement is considered not concluded (Article 654 of the Civil Code of the Russian Federation).
The terms of the rent must be formulated in such a way that it is possible to determine exactly when and in what amount the tenant is obliged to make the appropriate payments. The agreement may establish a fixed amount of rent or the procedure (mechanism) for its calculation. In the latter case, the rental agreement will also be considered agreed upon.
The amount of rent may be changed by agreement of the parties within the time periods stipulated by the contract, but not more than once a year, unless otherwise provided by the contract (clause 3 of Article 614 of the Civil Code of the Russian Federation). A change in the amount of rent in accordance with the mechanism provided for in the agreement does not constitute a change in the lease agreement, and, therefore, is not subject to the restrictions mentioned above (clause 11 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66, hereinafter referred to as Information letter No. 66). For example, the condition of indexing rent depending on inflation does not contradict this restriction. Although the amount of rent changes, the procedure for calculating it remains unchanged.
It is better to provide in the contract for the consequences of the loss of the lessor’s VAT payer status
It is recommended that the lease agreement specify whether the rent includes value added tax (VAT). And if it includes, then it will also be necessary to determine what part of the specified amount is rent, and which one is VAT. For example, indicate the current tax rate to avoid disputes in the future when the tax rate changes during the contract period. It is also recommended to indicate in the agreement that VAT is not charged on the rental amount if the lessor is not a payer of this tax.
All this must be done, since otherwise the parties may have disagreements regarding the amounts to be paid as rent. The position of the courts on this issue is ambiguous, and as a result, the landlord may receive a rent payment in an amount less than expected (resolution of the Federal Antimonopoly Service of the West Siberian District dated September 17, 2010 in case No. A70-14225/2009), and the tenant may be forced to pay VAT in excess of the rent amount (Definition Supreme Arbitration Court of the Russian Federation dated February 10, 2010 No. VAS-1414/10 in case No. A51-7727/2009).
A situation is likely where initially the lessor was a VAT payer and in the contract the amount of rent was agreed upon taking into account the tax, but later the obligation to pay this tax ceased. For example, when the lessor switches to a simplified taxation system (clause 2 of Article 346.11 of the Tax Code of the Russian Federation) or in the event of a change in the owner of the leased property, if new owner is not a VAT payer. In this regard, it is in the interests of the tenant to include in the contract a condition that in the event of termination of the landlord’s obligation to pay VAT, the rent is reduced by the amount of the tax. If such a condition is not agreed upon, the court may refuse to satisfy the request for the return of overpaid rent in the amount of tax (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated 05.08.2011 in case No. A43-24309/2010). At the same time, there is another position when the payment with the amount of VAT included in it is recognized as unjust enrichment of the lessor (resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated January 15, 2010 in case No. A29-2100/2009).
Rent may include fixed and variable parts
The rent cannot be established in the form of payment by the tenant for utilities (electricity, water, heat), fuel, lubricants and other materials consumed when using the leased property. The fact is that with such a payment, the lessor actually does not receive any remuneration from the tenant for the granted right to use the leased object, and this contradicts the paid nature of the agreement (clause 12 of Information Letter No. 66).
In order to reimburse the cost of utility services consumed by the tenant, the parties increasingly indicate in the agreement that the rent consists of two parts - constant and variable. The size of the constant part is determined in the form of a fixed value (or a mechanism for calculating it), and variable part is defined as the cost of utilities consumed by the tenant.
The condition defining the procedure for paying utility bills is an important point of the contract. After all, contracts with resource supply organizations are concluded by the lessor and invoices are issued in his name, and the lessee will have an obligation to reimburse such expenses if this is provided for in the agreement. Utility and other payments include the cost of water supply and sewerage services, telephone communications, consumed electricity, heat supply (gas supply), as well as fees for cleaning premises, garbage removal, etc.
Accounting for utility and operating payments as part of the rent is possible in several options. First, you can set a fixed rent, which already includes the cost of such payments. The tenant then pays a fixed rent each month. Secondly, it is permissible to determine the amount of rent without taking into account the cost of utilities, indicating the right of the tenant to independently enter into agreements with resource supply and service organizations. It should be taken into account that the conclusion of such agreements will entail the emergence of additional obligations for the tenant to such organizations. And thirdly, the parties have the right to establish a rent consisting of a fixed and variable part.
In the latter case, the rent consists of payment for the rented premises in a set amount (fixed part) and rent in terms of reimbursement of the cost of utilities actually consumed by the tenant (variable part).
It is better to fix the amount of the variable part of the rent for each month separately
In practice, the amount of rent in terms of reimbursement of the cost of electrical energy consumed by the tenant is determined either on the basis of the electricity meter readings, separately installed for the tenant, or on the installed power by taking into account the power of all electrical appliances operating in the premises and the approximate duration of their operation. The amount of water or gas consumed can also be determined by the meter. Calculation of the cost of heating services depends on the total heated area, calculated in cubic meters. Reimbursement of telephone communication costs is made on the basis of data on the status of the personal account provided by the communication organization.
To recognize a fixed part of the rent as an expense, the tenant only needs to have the lease agreement itself, in which it is defined. To recognize the variable part in expenses, a separate primary document is required, which will reflect the cost of utilities consumed by the tenant with a breakdown by type of service and with links to the relevant documents and the amount of the variable part of the rent for the month calculated in accordance with the lease agreement.
What is this primary document? When concluding an agreement, the parties to the lease agreement independently agree on this issue in relation to a specific situation. This can be a bilateral act, or a certificate from the landlord’s accounting department. The main thing is that the document used contains all the mandatory details listed in Art. 9 of the Federal Law of December 6, 2011 No. 402-FZ “On Accounting” (clause 1 of the letter of the Federal Tax Service of Russia dated February 4, 2010 No. ШС-22-3/86@).
If, in accordance with the agreement, the rent (or part of it) is a variable amount, then in order to recognize this amount as an expense, the tenant must receive a primary document from the lessor every month, since the amount of the rent varies from month to month. And when the rent is determined in a constant (fixed) amount in the contract, monthly acts confirming the amount of payment are not needed, since the amount of the rent does not change.
It is worth remembering that difficulties may arise with the preparation of primary documentation, since the landlord is not the supplier of utility services to the tenant, but in fact acts as an “agent” of the tenant in transferring payments for services provided by resource supply organizations. For the landlord, these payments are not income, but serve as compensation for expenses.
