Disposal of fixed assets against debt. You can return a loan with fixed assets to an individual

The organization has an accounts payable for goods to the supplier under a purchase and sale agreement. Currently, by verbal agreement with the supplier, the organization is ready to repay this debt, but not with money, but with goods for the same amount. What is the procedure for documenting this operation and how should it be reflected in the accounting and tax records of the organization itself and its counterparty?

Documenting

According to paragraph 1 of Art. 454 of the Civil Code of the Russian Federation, under a purchase and sale agreement, one party (seller) undertakes to transfer the thing (product) into ownership of the other party (buyer), and the buyer undertakes to accept this product and pay a certain amount of money (price) for it. The supply agreement is a separate type of purchase and sale agreement (clause 5 of article 454 of the Civil Code of the Russian Federation).

In accordance with paragraph 1 of Art. 516 of the Civil Code of the Russian Federation, the buyer pays for the supplied goods in compliance with the procedure and form of payment provided for in the supply agreement. If the procedure and form of settlements are not determined by agreement of the parties, then settlements are carried out by payment orders.

By virtue of an obligation, one person (debtor) is obliged to perform a certain action in favor of another person (creditor), such as: transfer property, perform work, pay money, etc., or refrain from a certain action, and the creditor has the right to demand the debtor to fulfill his obligation (clause 1 of Article 307 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 407 of the Civil Code of the Russian Federation, the obligation is terminated in whole or in part on the grounds provided for by the Civil Code of the Russian Federation, other laws, other legal acts or an agreement.

In this situation, the buyer plans to terminate the obligation to the supplier by transferring the goods to him. For these purposes, the parties can enter into an agreement on compensation, which should determine the amount, timing and procedure for providing compensation (Article 409 of the Civil Code of the Russian Federation).

The provisions of the Civil Code of the Russian Federation do not impose special requirements for the form of the compensation agreement; therefore, general rules on the form of transactions are applied (Articles 158-161 of the Civil Code of the Russian Federation). We believe that in this case the compensation agreement must be concluded in simple written form (clause 1 of Article 161 of the Civil Code of the Russian Federation).

It should be taken into account that clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 N 102 states that the obligation terminates from the moment the compensation is provided in return for performance, and not from the moment the parties reach an agreement on compensation.

Therefore, the fact of termination of the compensation obligation must be recorded by the parties to the transaction by drawing up documents confirming the acceptance and transfer of property transferred as compensation. The Civil Code of the Russian Federation does not define a list of documents that must be drawn up when transferring property as compensation. At the same time, the operation in question is a fact of economic life within the meaning of Art. 3 of the Federal Law of December 6, 2011 N 402-FZ “On Accounting” (hereinafter referred to as Law N 402-FZ), therefore, it is subject to registration as a primary accounting document (Part 1, Article 9 of Law N 402-FZ).

The composition and forms of primary accounting documents are approved by the head of the economic entity on the recommendation of the official who is entrusted with accounting (Part 4 of Article 9 of Law No. 402-FZ, information of the Ministry of Finance of Russia dated December 4, 2012 No. PZ-10/2012). Moreover, each primary accounting document must contain the details provided for in Part 2 of Art. 9 of Law No. 402-FZ.

Forms of primary accounting documents contained in albums of unified forms of primary accounting documentation are not mandatory for use from 01/01/2013 (with the exception of documents used as primary accounting documents established by authorized bodies in accordance with and on the basis of other federal laws, for example, cash documents). However, organizations can also use them if they decide to do so.

Thus, the fact of transfer of goods as compensation can be formalized by a document approved by the head of the debtor organization (buyer) for this purpose, for example, an acceptance certificate. Please note that the albums of unified forms of primary accounting documentation do not approve a special primary document for formalizing the transfer of goods under an indemnity agreement. However, we consider it possible to use for this purpose a consignment note according to the unified form N TORG-12, approved by Resolution of the State Statistics Committee of Russia dated December 25, 1998 N 132, if the organization decided to use unified forms of primary accounting documentation even after 01/01/2013.

Accounting with the debtor (buyer)

Corporate income tax

The object of taxation for income tax for Russian organizations that are not members of a consolidated group of taxpayers is profit, defined as the difference between the income received and the amount of expenses incurred, which are determined in accordance with Chapter 25 of the Tax Code of the Russian Federation (Article 247 of the Tax Code of the Russian Federation).

When forming the tax base for income tax, taxpayers take into account taxable income from the sale of goods (work, services) and property rights, as well as non-operating income (clause 1 of Article 274, clause 1 of Article 248 of the Tax Code of the Russian Federation).

When transferring goods under an agreement to provide compensation, the debtor organization has an obligation to recognize in tax accounting income from the sale of goods (clause 1, clause 1, article 248, clause 1, article 39, clause 3, article 38 of the Tax Code of the Russian Federation, In addition, see the resolution of the Federal Antimonopoly Service of the North Caucasus District dated December 10, 2012 N F08-7046/12 in case N A15-321/2012).

The amount of proceeds from the sale should be determined on the basis of the price established by the parties in the agreement for the goods transferred as compensation, reflected in the primary documents (excluding VAT) (clause 1 of Article 248, Article 313 of the Tax Code of the Russian Federation, in addition see the letter of the Ministry of Finance of Russia dated July 27, 2005 N 03-11-04/2/34).

The income in question should be taken into account when calculating the tax base for income tax on the date of transfer of goods to the creditor (clause 3 of Article 271, clause 1 of Article 39 of the Tax Code of the Russian Federation, clause 1 of Article 223 of the Civil Code of the Russian Federation).

The amount of proceeds from sales in this case can be reduced by the cost of the transferred goods (clause 3, clause 1, article 268 of the Tax Code of the Russian Federation).

VAT

As a result of the transfer of goods on the territory of the Russian Federation under an agreement on the provision of compensation, the debtor organization becomes subject to VAT (clause 1, clause 1, article 146, clause 1, article 39, clause 3, article 38 of the Tax Code of the Russian Federation, in addition see the letter Federal Tax Service of Russia for Moscow dated August 26, 2010 N 16-15/090182, resolution of the FAS Volga District dated July 31, 2012 N F06-5983/12 in case N A65-33842/2011).

In accordance with paragraph 1 of Art. 154 of the Tax Code of the Russian Federation, the tax base when a taxpayer sells goods (work, services) is defined as the cost of these goods (work, services), calculated on the basis of prices determined in accordance with Art. 105.3 of the Tax Code of the Russian Federation, taking into account excise taxes (for excisable goods) and without including tax (for additional information, see letter of the Ministry of Finance of Russia dated July 19, 2012 N 03-07-11/135).

We believe that the tax base for VAT in this case will be determined on the date of transfer of goods to the creditor as compensation (clause 1, clause 1, article 167 of the Tax Code of the Russian Federation).

The VAT amount will be calculated at the rates provided for in paragraphs. 2, 3 tbsp. 164 of the Tax Code of the Russian Federation (depending on the type of property being transferred).

We believe that in this case, the debtor organization must issue the corresponding invoice to the creditor no later than five calendar days, counting from the day the goods were transferred to him as compensation (clause 3 of Article 168 of the Tax Code of the Russian Federation, additionally see the resolution of the Federal Antimonopoly Service of the Volga Region dated 05/10/2012 N F06-3223/12 in case N A55-16406/2011).

Accounting

The regulations governing the accounting procedure do not contain specific requirements for accounting for transactions related to the provision of compensation to pay off debt under a supply agreement.

The actual result of the transaction for the transfer of goods as compensation is the repayment of the obligation of the purchasing organization and the disposal of the goods belonging to it, which can be reflected in the accounting accounts by an entry (Chart of Accounts for Financial and Economic Activities of Organizations and Instructions for its Application (hereinafter referred to as the Chart of Accounts) and Instructions), approved by order of the Ministry of Finance of Russia dated October 31, 2000 N 94n):
Debit 60 Credit 41.

The accrual of VAT on the cost of transferred goods in this case can be reflected by posting:
Debit 91 Credit 68, subaccount “Calculations with the budget for VAT”.

At the same time, a permanent tax liability should be recognized in the accounting records of the debtor organization (clauses 4, 7 of PBU 18/02 “Accounting for calculations of corporate income tax”):
Debit 99 Credit 68, subaccount "Calculations with the budget for income tax."

However, the most widespread point of view is that when transferring property as compensation, the debtor organization must recognize in accounting in the general manner either revenue or other income (clauses 2, 4, 12, 16 PBU 9/99 “Income organization"), which, when transferring goods, implies the following correspondence of accounts (Chart of Accounts and Instructions):

Debit 60 Credit 90
- the buyer’s debt is repaid by transferring compensation to the supplier;

Debit 90 Credit 41
- the cost of the goods transferred as compensation is written off;

Debit 90 Credit 68, subaccount "Calculations with the budget for VAT"
- VAT is charged on the cost of the goods transferred as compensation.

In this case, there will be no differences between accounting and tax accounting.

Accounting with the creditor (supplier)

Corporate income tax

When receiving goods under a compensation agreement, an organization using the accrual method does not have an obligation to reflect the amount of income in tax accounting, since the proceeds from the sale were already reflected by the creditor on the date of transfer of ownership of the goods to the buyer (clauses 1, 3 Article 271 of the Tax Code of the Russian Federation), and the amounts reflected in the taxpayer’s income are not subject to re-inclusion in his income (clause 3 of Article 248 of the Tax Code of the Russian Federation) (for additional information, see letter of the Ministry of Finance of Russia dated 03.02.2010 N 03-03-06 /1/42).

The creditor, accepting property under an indemnity agreement, acts as the acquirer of this property (letter of the Federal Tax Service of Russia for Moscow dated December 5, 2007 N 19-11/116142). In this case, the value of the property received as compensation is recognized as equal to the value of the debtor’s repaid obligation (see, for example, letters of the Ministry of Finance of Russia dated March 18, 2010 N 03-03-06/2/50, dated December 7, 2009 N 03-03-06/ 2/231).

VAT

As already noted, when transferring goods as compensation, the debtor must present VAT to the creditor. The creditor has the right to accept for deduction the amount of VAT presented by the debtor, subject to the requirements of Art. 171, 172 of the Tax Code of the Russian Federation (see also decisions of the Federal Antimonopoly Service of the Volga District dated October 30, 2012 N F06-7951/12 in case No. A65-27596/2011, dated July 31, 2012 N F06-5983/12 in case N A65-33842/2011) .

We remind you that in general, in order to accept the deduction of “input” VAT amounts, the following conditions must be met:
- availability of an invoice issued by the seller of goods (works, services), property rights (clause 1 of Article 172 of the Tax Code of the Russian Federation);
- registration of purchased goods (works, services), property rights on the basis of relevant primary documents (clause 1 of Article 172 of the Tax Code of the Russian Federation);
- acquisition of goods (work, services), property rights for carrying out transactions subject to VAT (clause 1, clause 2, article 171 of the Tax Code of the Russian Federation).

If the received property will be used to carry out, for example, transactions that are not subject to taxation (exempt from taxation) VAT, then the amount of VAT charged to the creditor should be included in the cost of the received property (clause 1, clause 2, article 170 of the Tax Code of the Russian Federation).

Accounting

Property received as compensation is accounted for by the creditor, taking into account the rules established by regulations governing the procedure for maintaining accounting records of the relevant assets. So, for example, if the creditor initially plans to sell the received property, then it should be considered as a product (clause 2 of PBU 5/01 “Accounting for inventories” (hereinafter referred to as PBU 5/01)). At the same time, the formation of its actual cost in the general case, in our opinion, should be carried out based on the amount of the debtor’s repaid obligation excluding VAT (clauses 6, 11 of PBU 5/01).

Taking into account the above, and also taking into account the provisions of the Chart of Accounts and the Instructions, we believe that the creditor in this case can reflect the receipt of the asset as compensation in the accounting accounts as follows:

Debit 41 (10, 08) Credit 62
- the receipt of property as compensation is reflected;

Debit 19 Credit 62
- the VAT presented by the debtor is reflected;

Debit 68 Credit 19
- VAT presented by the debtor is accepted for deduction.

The texts of the documents mentioned in the experts’ response can be found in

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

Legal basis

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

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

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

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

Transferred the property? Add VAT!

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

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

Income tax

Reflected in accounting

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

Example:

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

Debit 62 (76) Credit 91

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

Debit 91 Credit 01

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

Debit 91 Credit 68

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

Debit 66 Credit 62 (76)

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

Unequal compensation

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

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

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

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

According to paragraphs. 1 clause 1 art. 146 of the Tax Code of the Russian Federation (hereinafter referred to as the Tax Code of the Russian Federation), VAT is recognized as an object of taxation implementation goods (work, services) on the territory of the Russian Federation, including the sale of collateral and the transfer of goods (results of work performed, provision of services) under an agreement for the provision compensation or innovations, as well as transfer of property rights.

According to paragraph 1 of Art. 39 Tax Code of the Russian Federation implementation of goods, works or services for tax purposes, the transfer on a reimbursable basis is recognized accordingly (including the exchange of goods, works or services):

Ownership rights to goods;

The results of work performed by one person for another person;

The provision of services for compensation by one person to another person.

According to paragraph 1 of Art. 154 of the Tax Code of the Russian Federation, the tax base when a taxpayer sells goods (work, services) is defined as the cost of these goods (work, services), calculated on the basis of prices determined in accordance with Art. 105.3 of the Tax Code of the Russian Federation, taking into account excise taxes (for excisable goods) and without including tax.

Clause 1 of Art. 105.3 of the Tax Code of the Russian Federation establishes that if in transactions between interdependent persons create or establish commercial or financial conditions different from those that would take place in transactions between persons who are not interdependent, then any income (profit, revenue) that could have been received by one of these persons, but due to this difference is not received by him are taken into account for tax purposes by this person.

The list of interdependent persons for tax purposes is given in Art. 105.1 Tax Code of the Russian Federation.

According to Art. 807 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things defined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality.

According to Art. 422 of the Civil Code of the Russian Federation, the contract must comply with the rules obligatory for the parties, established by law and other legal acts (imperative norms) in force at the time of its conclusion. Therefore, taking into account the norms of Art. 807 of the Civil Code of the Russian Federation, under a cash loan agreement, the borrower has the right to pay the lender only in cash.

In accordance with the provisions of Art. Art. 409 and the Civil Code of the Russian Federation, the obligation existing between the parties can be terminated by agreement of the parties on the replacement of the original obligation with another obligation between the same persons, providing for a different subject or method of fulfillment ( innovation), or by providing in exchange for performance compensation(payment of money, transfer of property, etc.). Amount, terms and procedure for providing compensation established by the parties.

According to paragraphs. 2 p. 3 art. 170 of the Tax Code of the Russian Federation, tax amounts (VAT) accepted for deduction by the taxpayer on fixed assets are subject to restoration by the taxpayer in cases of further use of such fixed assets to carry out transactions not subject to (exempt from taxation) VAT.

Conclusions:

1. When repaying a debt under a cash loan agreement with fixed assets, the parties must draw up an appropriate agreement (on novation or compensation). When transferring fixed assets to repay a monetary debt under a loan agreement, the ownership of the transferred fixed assets is transferred from the borrower to the lender. Accordingly, for VAT tax purposes, such a transfer is recognized as the sale of fixed assets, and the transferring party (borrower) becomes obligated to calculate and pay VAT on the cost of the transferred fixed assets.

2. In the novation (compensation) agreement, the parties establish in monetary terms the amount of the obligation to be repaid by transferring fixed assets. The specified amount forms the tax base associated with the transfer (sale) of goods (fixed assets) for the calculation of VAT.

3. If an LLC and an individual entrepreneur are interdependent persons, the VAT tax base should be determined based on market prices in accordance with Art. 105.3 Tax Code of the Russian Federation.

4. Due to the fact that transactions involving the transfer of fixed assets to repay a loan are subject to VAT, restore VAT in proportion to the residual value of the transferred fixed assets not required.

How to reflect in an organization's accounting the transfer of a fixed asset (fixed asset) as compensation to repay an obligation under a short-term interest-bearing loan agreement?

Civil relations

Accounting

Value added tax (VAT)

Corporate income tax

Application of PBU 18/02

T.E. Melikovskaya
Consulting and analytical center for accounting and taxation

ON THE. Matsepuro, lawyer

Repayment of a loan with property to an individual participant

Registration and accounting of compensation for an organization under the general taxation regime

Individual participants quite often lend money to the companies they create. And if the “daughter” is experiencing financial difficulties, then the participants sometimes agree to repay the loan not with money, but with some of its property (for example, goods or fixed assets (FPE) - a car, residential or non-residential premises, etc.). Let's find out how to document this and how to carry out this operation in tax and accounting when applying the general taxation regime.

Compensation agreement

Having received money under a loan agreement, you must also return the money And clause 1 art. 807 Civil Code of the Russian Federation. If, by agreement with the participant, you return something else to him, then this is already providing compensation. O Art. 409 Civil Code of the Russian Federation. Any property can be transferred as compensation. In this case, you need to enter into a written agreement with the participant, which must indicate:

• a loan obligation terminated by the provision of compensation, that is, the details of the loan agreement and the amount of debt repaid under it (for example, the entire loan amount together with accrued interest, if the agreement is an interest-bearing agreement )Art. 409, paragraph 1, art. 432 Civil Code of the Russian Federation.

We warn the lawyer

To ensure that the transfer of compensation does not lead to problems with the calculation of VAT, the compensation agreement must indicate that the value of the transferred property already includes tax. And it is better to allocate the amount of VAT.

By the way, if you do not indicate in the agreement that by providing compensation the debt is repaid only in a certain part, then the loan obligation will cease completely (along with the interest accrued on it ). Moreover, even if the value of the property transferred as compensation is less than the amount of the debt;

• property transferred as compensation, its value including VAT (equal to the repayable amount of debt), the procedure and timing of its transfers And Art. 409, paragraph 1, art. 432 Civil Code of the Russian Federation; Resolution of the FAS VSO dated January 15, 2004 No. A74-2456/03-K1-F02-4790/03-S2.

If these conditions are not present in the agreement, it may be considered invalid.

We warn the manager

You should not overestimate or underestimate the value of property transferred as compensation. Such a transaction may attract the attention of controllers, and they will charge us additional taxes. Moreover, the organization and the participant can be recognized by the court as interdependent persons And clause 2 art. 20 Tax Code of the Russian Federation.

If you transfer real estate to a participant as compensation, then the compensation agreement itself does not need to be registered with the Rosreestr authorities. O clause 15 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 16, 2001 No. 59. You will only register the transfer of ownership of the property, which will take place at the time of signing the transfer and acceptance certificate And clause 1 art. 131, paragraph 1, art. 164 Civil Code of the Russian Federation;.

The property transferred as compensation is assessed by you and the participant by agreement Yu Art. 409, para. 1, 4 tbsp. 421, paragraph 1, art. 424 Civil Code of the Russian Federation. However, it is better that its value does not deviate from the market price by more than 20%, otherwise the tax authorities will be able to charge you additional taxes and penalties. And clause 1, sub. 4 clause 2, clause 3 art. 40 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated March 18, 2010 No. 03-11-06/2/38.

The agreement can be drawn up like this.

REMEDY AGREEMENT

Moscow

Kirpichnikov Ivan Vasilievich, hereinafter referred to as the “Creditor”, on the one hand, and LLC “Your House” represented by the General Director Derevyankin Alexey Nikolaevich, acting on the basis of the Charter, hereinafter referred to as the “Debtor”, on the other hand, have entered into this agreement as follows.

1. The Debtor's obligation to the Creditor to repay a cash loan in the amount of 200,000 (Two hundred thousand) rubles under the interest-free loan agreement No. 10-z dated January 25, 2010 is completely terminated by the Debtor providing compensation to the Creditor on the terms and in the manner provided for in this agreement.

2. As compensation, the Debtor undertakes, within 10 days from the date of signing the Agreement, to transfer to the Lender the ownership of a VAZ 21721 “LADA Priora” car, manufactured in 2008, VIN ХTA12345678910.

3. By the time the specified car is transferred as compensation, the Debtor undertakes to deregister it with the traffic police.

4. The cost of the transferred compensation is 200,000 (Two hundred thousand) rubles, including VAT (18%) of 30,508.48 rubles.

5. The transfer of compensation is confirmed by an act of acceptance and transfer, signed by authorized representatives of the parties.

6. Addresses and signatures of the parties:

When transferring a car as a compensation, the ownership of it passes to the creditor from the moment the transfer and acceptance certificate is signed, and not after registration with the traffic police. After all, it is not the transfer of ownership that is subject to state registration, but the vehicle itself O clause 3 art. 15 of the Federal Law of December 10, 1995 No. 196-FZ “On Road Traffic Safety”; pp. 1, 2 Rules for registration of motor vehicles and trailers for them with the State Road Safety Inspectorate of the Ministry of Internal Affairs of the Russian Federation, approved. By Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 No. 1001; Decision of the Supreme Court of the Russian Federation dated August 13, 1999 No. GKPI99-566; Determination of the Perm Regional Court dated July 22, 2010 No. 33-6104.

You can enter into a compensation agreement with a participant at any time. But if you conclude it before the loan repayment deadline, and the loan agreement prohibits early repayment of the loan, then be sure to indicate in the compensation agreement that the clause of the loan agreement providing for such a prohibition is canceled. Otherwise, the agreement may subsequently be declared invalid m Art. 309, Art. 810 Civil Code of the Russian Federation; Resolution of the FAS VSO dated 03.03.2009 No. A58-2215/08-F02-573/09.

You formalize the transfer of property to a participant as compensation with the following documents, depending on the type of property being transferred:

• <если>hand over the main thing, then draw up an act of acceptance and transfer of fixed assets in form No. OS-1 or No. OS-1a (for buildings and structures )approved Resolution of the State Statistics Committee of Russia dated January 21, 2003 No. 7;
• <если>hand over goods- consignment note according to form No. TORG-1 2approved Resolution of the State Statistics Committee of Russia dated December 25, 1998 No. 132;
• <если>hand over materials- invoice in the form No. TORG-12 or No. M-1 5approved Resolution of the State Statistics Committee of Russia dated October 30, 1997 No. 71a.

Accounting for the transfer of compensation

For purposes taxation the transfer of property as compensation is recognized as a sale. That is, you reflect income and expenses from such an operation in a general manner e Art. 249, Art. 268, Art. 318, Art. 320, pp. 1, 2 tbsp. 252, paragraph 1, art. 271, paragraph 1, art. 272 Tax Code of the Russian Federation.

The obligation to repay the loan participant terminates on the date of transfer of property to him, and not on the date of conclusion of the compensation agreement m Art. 409 Civil Code of the Russian Federation; clause 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102. Therefore, it is on the date of transfer of property that you receive income from its sale in the amount of the repayable loan obligations A clause 1 art. 39, paragraph 1, art. 248, paragraph 1, art. 249 Tax Code of the Russian Federation; clause 1 art. 223 Civil Code of the Russian Federation; clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 21, 2005 No. 102. From the same amount you must calculate VAT at the estimated rate and issue an invoice no later than 5 days from the date of transfer of property at subp. 1 clause 1 art. 146, paragraph 1, art. 154, paragraph 3 of Art. 168 Tax Code of the Russian Federation.

There will be no advance payment on the date of conclusion of the compensation agreement (on repayment of a cash loan by transfer of property).

You take into account expenses depending on what you transfer as compensation O clause 1 art. 268, articles 318-320 of the Tax Code of the Russian Federation. At the same time, remember that if, as a result of providing compensation, a loss occurs (the value of the property transferred as compensation is greater than the size of the obligation to be repaid), then you need to take it into account To pp. 2, 3 tbsp. 268 Tax Code of the Russian Federation; Letter of the Ministry of Finance of Russia dated January 18, 2010 No. 03-03-06/2/1:

• <если>you conveyed OS, then as part of other expenses in equal shares over the remaining useful life of the asset;
• <если>you conveyed other property, then lump sum as a loss of the current reporting (tax) period.

IN accounting proceeds from the transfer of own-produced products or goods as compensation are income from ordinary activities And pp. 4, 5 PBU 9/99 “Income of the organization”, approved. By Order of the Ministry of Finance of Russia dated 05/06/99 No. 32n. And proceeds from the disposal of fixed assets and other assets are other income of the organization And clause 7 PBU 9/99. These incomes are recognized in the same way as in tax accounting - in the amount of the repaid loan on the date of transfer of property A clause 6 PBU 9/99, clause 12 PBU 9/99, clause 16 PBU 9/99.

Accounting for expenses arising during the transfer of compensation also depends on the type of property transferred to the participant and is almost no different from the procedure used in tax accounting e pp. 5, 6 PBU 10/99 “Expenses of the organization”, approved. By Order of the Ministry of Finance of Russia dated 06.05.99 No. 33n, clause 8 PBU 10/99, clause 11 PBU 10/99, clause 16 PBU 10/99, clause 19 PBU 10/99; pp. 29-31 PBU 6/01 “Accounting for fixed assets”, approved. By Order of the Ministry of Finance of Russia dated March 30, 2001 No. 26n. The only differences that can arise are:

• due to differences in the procedure for writing off losses from the transfer of fixed assets as compensation, since in accounting such a loss is written off as a lump sum O clause 31 PBU 6/01; clause 2 art. 268 Tax Code of the Russian Federation;
• due to the use of different methods for estimating the cost of goods or own products transferred as compensation O clause 16 PBU 5/01 “Accounting for inventories”, approved. By Order of the Ministry of Finance of Russia dated 06/09/2001 No. 44n; clause 8 art. 254, sub. 3 p. 1 art. 268 Tax Code of the Russian Federation.

Features of accounting when transferring real estate as compensation

They are due to the fact that the transfer of ownership of real estate is subject to state registration And clause 1 art. 131, paragraph 1, art. 164, paragraph 2 of Art. 223 Civil Code of the Russian Federation. And the moment of sale will not be the date of acceptance and transfer of real estate, but the date of state registration of the transfer of ownership to non e clause 1 art. 39, paragraph 1, art. 249, paragraph 3 of Art. 271 Tax Code of the Russian Federation. But the Ministry of Finance believes that when calculating income tax income from the sale of real estate must be recognized when you transferred it under the transfer and acceptance certificate and submitted documents for state registration Yu Letters of the Ministry of Finance of Russia dated 04.28.2010 No. 03-03-06/1/301, dated 10.15.2009 No. 03-03-06/4/87, dated 09.10.2007 No. 03-03-06/1/653, dated 08.11 .2006 No. 03-03-04/1/733. And according to tax authorities, income should be reflected as of the date of signing the transfer and acceptance certificate And ; FAS ZSO dated 09/05/2007 No. F04-5962/2007(37734-A45-40), and the courts sometimes support them T Resolution of the Federal Antimonopoly Service of September 22, 2009 No. A65-20719/2008. Therefore, in order to avoid disputes, it is better to do so.

You also stop accruing depreciation on the transferred property after you sign the transfer and acceptance certificate with the participant. Since such an act indicates that you have transferred the property, which means you are no longer using it to generate income A clause 1 art. 256 Tax Code of the Russian Federation.

VAT must be accrued on the date of state registration of the transfer of ownership of real estate b subp. 1 clause 1 art. 146, paragraph 3 of Art. 167 Tax Code of the Russian Federation. However, the tax authorities again demand that tax be paid upon the transfer of real estate under the transfer and acceptance certificate. And Resolution of the Federal Antimonopoly Service of June 5, 2008 No. A65-4591/2007; FAS ZSO dated October 17, 2007 No. F04-7265/2007(39332-A75-34). There is no need for you to argue, so it is better to pay VAT early (on the date of transfer of real estate), then the moment of sale for income tax purposes and for VAT purposes will coincide.

Please note that the provision of land as a compensation plot is not subject to VAT. I subp. 6 paragraph 2 art. 146 Tax Code of the Russian Federation. However, you still issue an invoice, making a note in it “Excluding tax (VAT)” clause 5 art. 168 Tax Code of the Russian Federation.

IN accounting income from the sale of real estate must be recognized on the date of state registration And clause 12 PBU 9/99, clause 16 PBU 9/99. In tax accounting, if you follow the point of view of the regulatory authorities, you will take this income into account earlier. Because of the difference, you will have to record a deferred tax asset (which will be settled after the transfer of ownership is registered )pp. 8, 11 PBU 18/02 “Accounting for corporate income tax calculations”, approved. By Order of the Ministry of Finance of Russia dated November 19, 2002 No. 114n, clause 14 PBU 18/02, clause 17 PBU 18/02. Therefore, it is easier to recognize income in accounting on the date of signing the transfer and acceptance certificate And clause 6 PBU 1/2008 “Accounting policy of the organization”, approved. By Order of the Ministry of Finance of Russia dated October 6, 2008 No. 106n.

From this moment you need to stop accruing depreciation And clause 4 PBU 6/01, clause 29 PBU 6/01.

However, keep in mind: if you are transferring depreciable real estate, you will still have to use PBU 18/02. Since in accounting you recognize the residual value of such real estate as expenses on the date of its transfer, and in tax accounting - only on the date of state registration And pp. 16, 18, 19 PBU 10/99; clause 1 art. 252 Tax Code of the Russian Federation.

Example. Reflection in accounting of the transfer of compensation in the form of real estate

/ condition / 01/25/2010 LLC “Your House” received an interest-free loan from its participant in the amount of 1,000,000 rubles to its current account. for a period until October 25, 2010. On November 25, 2010, an agreement was concluded between the participant and the organization on the transfer of non-residential premises in full repayment of the obligation to repay the loan. The cost of the premises was estimated by the parties to the agreement to be 1,000,000 rubles, including VAT (18%) of 152,542.37 rubles. On November 26, 2010, the premises were transferred to the participant according to the transfer and acceptance certificate. On December 10, 2010, documents were submitted to the Rosreestr authorities to register the participant’s ownership of non-residential premises, and on January 12, 2011, the transfer of ownership was registered. The initial cost of the premises is 1,200,000 rubles, and its residual value as of the date of transfer under the act is 700,000 rubles.

/ solution / LLC “Your House” decided to reflect income from the transfer of real estate for profit tax purposes on the date of state registration, so entries were made.

Loans received and repaid are not taken into account for income tax purposes. b subp. 10 p. 1 art. 251, paragraph 12 of Art. 270 Tax Code of the Russian Federation. But if you pay off the loan with compensation, you won’t be able to save on taxes. You will pay them as during normal sales.