In a material legal, tax and registration nuances of operations of financial leasing as are considered from the lessor, and a lizingopoluchatel.
FIXED ASSETS are NECESSARY
Recently financial leasing (further – FL) became quite popular form of acquisition of fixed assets agricultural enterprises. In consultation we will consider legal, tax and registration nuances of operations FL both from the lessor, and from a lizingopoluchatel.
Concept FL
The main document regulating legal osnovy FL, the Law about financial lizinge* (Dayoly – the Law) is.
So, according to the Law the lessor under the contract FL promises:
1) to get in a property a thing at the seller (poyostavshchik) according to the specifications established by a lizingoyopoluchatel and conditions;
2) to transfer it in using to a lizingopoluchatel for a certain term (not less than one year) for an ustayonovlenny payment (leasing payments).
The contract of leasing should be made in a pismenyony form. The notarial certificate dogovora is necessary, if are transferred:
• a structure or other capital construction (Art. 793 taking into account Art. 806 of group of companies **). In this case contract podlezhit also state registration (Art. 794 of group of companies);
• a vehicle (Art. 799 taking into account Art. 806 of group of companies).
Subject FL is the inconsumable thing, kotoyory is characterized by individual signs and is carried according to the legislation to the main fondam (further – OF). That is OF can be a subject of leasing only and there can not be land lots, other natural objects, and also complete imuyoshchestvenny complexes of the enterprises and their obosoblenyony structural divisions (branches).
* the Law of Ukraine from 16.12.97 of No. 723/97-BP About financial leasing.
** The civil code of Ukraine from 16.01.03 of No. 435-IV.
The law puts forward some essential contract provisions of FL without which he can’t be considered as a prisoner. Them treat:
• a leasing subject (the fixed assets acquired by the lessor and transferred in using to a lizingopoluchatel);
• term, on which the lessor receives a right of use of a leasing subject. FL term not mozhet to be it is less than one year;
• size of leasing payments. If in the contract periodicity of their payment isn’t established, payment is made monthly (Art. 762 of group of companies).
The approximate structure of a leasing payment contains Law Art. 16. However the parties have the right to change it, surely having fixed new structure in the contract. So, leasing payments can include:
• the sum which compensates a part of cost predmeta leasing;
• payment in the form of compensation to the lessor for the property received in leasing;
• compensation of percent on the credit;
• other expenses of the lessor which have been directly connected with performance of the contract of leasing.
Pay attention: The law doesn’t provide obligatory transition of an ownership right on predmet leasing to a lizingopoluchatel. However if posyoledniya wants to get such right after contract FL term, such possibility predusmotrena in Law Art. 8.
For this purpose the lessor and a lizingopoluchatel dopolyonitelno to the contract FL sign the contract of purchase and sale of a subject of leasing. The ownership right about leasing in this case passes to a lizinyogopoluchatel from the moment of payment of the price defined in the contract by it if in it is mute other isn’t specified.
Let’s consider an order of the taxation of operations FL at the lessor and at a lizingopoluchatel.
Taxation
The law on profit a little differently interprets concept financial leasing, than the Law on a financial liyozing. And as the Law on profit and the Law on the VAT establish special the assessment guidelines opeyoratsy FL, that them to use, it is necessary vypolnyat the conditions given in the Law on profit.
In other words, not each contract which yavlyaetsya the contract FL by the civil legislation, will be that for the taxation.
So, according to the Law on profit financial leasing – the economic operation of the physical or legal entity providing according to the contract FL (rent) transfer to the tenant (lizingopoluchatel) of property which falls under definition of osnovyony fund according to Art. 8 of this Law acquired or made by the lessor (lessor), and also all risks and the compensations connected with prayovy of using and possession of object of leasing.
Leasing is considered financial if the leasing doyogovor contains at least one of the following usloyoviya (subitem 1.18.2 of the Law on profit):
• the object of leasing is transferred to the period during which not less than 75 % of its peryovonachalny cost will be amortized, and the tenant (lizingopoyoluchatel) is obliged to get this object in a sobyostvennost during period of validity of the leasing contract or at the moment of its expiration at the price, opyoredelenny in such contract;
• the sum of leasing payments since the rent beginning Ravenna or exceeds an initial project cost of leasing;
• if the object which was in structure of OF of the lessor throughout the period of charge of the first 50 % of amortization of its pervonayochalny cost is transferred in leasing, total amount of leasing payments should equal or be more than 90 % of the usual price of such object for the beginning of period of validity of the leasing contract. And this price increases by the sum of the percent calculated isxodya from discount rate of NBU on start date of term a deysyotviya of this contract and before its expiration;
• the property which is transferred in FL, is made by request of a lizingopoluchatel and after period of validity of the leasing contract can’t be isyopolzovano other persons, except a lizingopoluyochatel, proceeding from his technical and kachestvenyony characteristics.
Irrespective of, leasing transaction belongs to FL according to standards of the mentioned subparagraph or not, treaty parties can define at the conclusion of a dogoyovor such operation as operative leasing without the right of the subsequent change of its status by the time of expiration sootvetstvuyushhego contracts.
Transfer (receiving) object of leasing
Profits tax
For taxation by this tax transfer of an imuyoshchestvo to FL is equated to its sale in a moyoment of such transfer. Thus if the imuyoshchestvo, which is transferred:
• previously it was acquired by the lessor by request of a lizingopoluchatel, that is not uchityvalos earlier as a part of OF of the lessor, posledyoniya increases a gross revenue by FL project cost (without percent and the commissions);
• at the moment of transfer was in structure of OF of a liyozingodatel, the lessor changes the OF sootvetyostvuyushchy group according to rules, opreyodelenny Art. 8 of the Law on profit for their sale.
Lizingopoluchatel when receiving property uvelichivaet the OF corresponding group on a stoyoimost of object of leasing (without percent or the commissions added according to conditions of the leasing contract).
VAT
Cession of property by the lessor on balance of a lizinyogopoluchatel belongs to delivery of the goods and is object of taxation of the VAT (subitem 3.1.1 taking into account item 1.4 of the Law on the VAT). Thus, at the moment of cession of property the lessor should add BUT on the VAT and write out the tax consignment note on property value. The original of this consignment note is transferred to a liyozingopoluchatel, the copy remains at the lessor.
The base of taxation of the VAT is established in the general order is a contractual project cost of leasing. If the dogovoryony price is higher usual more than for 20 %, base for charge BUT is the usual price for property.
At the moment of receiving property in FL the lizingopoluyochatel has the right to reflect the Tax Code on the VAT for osnovayoniya of the tax consignment note, written out lizingodateyoly (subitem 7.5.3 of the Law on the VAT).
Charge and payment of leasing payments
For the taxation leasing payments have two components:
• part of a project cost of FL;
• percent or commissions (compensation of a lizingoyodatel which is due to it for granting an imuyoshchestvo in FL).
In tax accounting (on the profits tax and the VAT) the part of a leasing payment which intends for repayment of a project cost of FL, at charge of this payment isn’t considered, as it is already reflected in the accounting of the lessor and a lizingopoluchatel for date of transfer of this object.
Profits tax
By results of the tax period, in which nachislyaetsya a leasing payment, on a part of payment, ravyony to the sum of percent or the commissions added on a project cost of FL (without a part of payment, koyotory compensates a part of cost of this object), according to subitem 7.9.6 of the Law on profit:
• the lessor increases VD;
• the lizingopoluchatel increases VR.
VAT
According to subitem 3.2.2 of the Law on the VAT aren’t objekyoty taxation of the VAT of operation on charge and uplate percent or the commissions in structure lizingovogo payment in the sum which is not exceeding a double uchetyony rate of NBU, established at date of such nachisyoleniye for the corresponding period. Sumyoma of payment who is not assessed by the VAT, pays off from a leasing project cost.
Thus, if the sum of percent (commissions) in comparison with double discount rate of NBU appears:
• below or it is equal to it, the lessor doesn’t charge on it BUT on the VAT, and the lizingopoluchatel has no right to the Tax Code;
• above, for the sum of such excess the lizingodayotel should add BUT on the VAT, and the lizingopoluyochatel has the right to the Tax Code.
Property return to the lessor
If upon termination of validity the object lizinga comes back to the lessor without his acquisition to a property a lizingopoluchatel, for taxation on profit this return priravnivaetsya to sale at the usual price of object operating at date of transfer. Let’s notice, such price can’t be less initial cost of this object reduced by the sum of added amortization (subitem 7.9.6 of the Law on profit).
It means that the lizingopoluchatel reduces a balanyosovy project cost (if object of leasing yavlyayutsya group 1 OF) or reduces a balance stoyoimost of the relevant group of fixed assets (if object of leasing are OF of groups 2, 3 or 4).
Respectively the lessor should increase balance cost of the OF corresponding group (if the object is used as a part of OF) or to increase VR (if it will be used as the goods).
Accounting
The accounting of operations FL is kept according to P (C) BU 14 Fiyonansovaya rent.
The lessor reflects in accounting preyodostavlenny object of FL as a debit zadolzhenyonost of a lizingopoluchatel in the sum of the minimum arendyony payments and unwarranted liquidating cost. The income of realization of non-turnaround assets thus admits. At the same time residual stoyoimost of object of FL is written off from balance of a lizingoyodatel with reflection as a part of an other expenses (prime cost of the realized non-turnaround assets).
At a lizingopoluchatel the property received on the contract FL, is considered as a part of its OS.
Lizingopoluchatel reflects the received object odyonovremenno as an asset and as the obligation on naiyomenshy for the leasing beginning to an assessment:
• or fair value of object;
• or sums of the minimum rent payments.
The minimum rent payments – it is a project cost of rent (leasing) which will be guaranteed compensated (completely if object dolzhen to remain with a lizingopoluchatel, or partially if the object has to be returned to the lessor), plus a rent (percent for leasing).
For accounting the leasing payment consists of two parts:
• compensations of a project cost of leasing;
• financial expenses of a lizingopoluchatel (otrazhayutsya on subaccount 952 Others financial rasxody) and the financial income of the lessor (otrazhayutsya on subaccount 732 Percent received).
Example
The Leasing enterprise signed with the selskokhozyayyostvenny enterprise "Urozhay" the contract FL on combine transfer in cost of 300 000 UAH., including the VAT – 50 000 UAH. The contract is signed for a period of 3 years. A rent rate – 18 % per annum. The Uchetyony rate of NBU – 8 % per annum.
Thus:
• the sum of compensation of cost of the combine, podlezhayoshchy to repayment in one quarter, makes 25 000 UAH. (300 000 UAH.: 3 years: 4 quarters);
• the sum of percent in a quarter makes 4,5 % (18 %: 4 quarters) from combine cost without the VAT, that is 11 250 UAH. (250 000 UAH. x 4,5 %). From them not oblagaetsya the VAT of 10 000 UAH. (250 000 UAH. x 8 %: 4 kvartala x 2). A part of a leasing payment in the sum of 1 250 UAH. (11 250 UAH. – 10 000 UAH.) the VAT at a rate of 208,33 UAH is assessed. (1 250 UAH. x 20 %: 120 %).
(UAH.)
(On Balans-Agro newspaper materials).