The property received by citizens as a result of reforming of staff of agricultural enterprises, in most cases carried over several persons who are co-owners. In this consultation legal registration on property repayment at co-owners, documentary registration, the account and the taxation is described.
The property received by citizens as a result of a reyoformirovaniye of collective agricultural enterprises, in most cases carried over neyoskolky persons who are co-owners of tayoky property. Now many of them made the decision on property sale to again sozdanyony agricultural enterprises. In this regard there were the questions connected with a purchase-prodayozhey of such property which we will answer in danyony consultation.
Legal registration of operation on property repayment
In this section we will consider two situations, when the predyopriyaty:
1) redeems property from co-owners completely;
2) redeems from one or several persons a part of the imushcheyostvo being in the common share property.
Situation 1: property repayment at co-owners
Property repayment by agricultural enterprise at sovladelyyoets is carried out, as a rule, on the basis of a purchase and sale dogoyovor.
Legal basis of drawing up of such contract yavlyaetsya Civil code (hl. 54).
The purchase and sale contract – this agreement, on koyotory the seller (co-owner) undertakes to transfer to the possession property of the buyer (selkhozpredyopriyatiya), and the buyer undertakes to accept property and to pay its cost.
Such contract is made in writing and subscribes by the representative of collective of sovladelyyoets of property and the head of agricultural enterprise (or the authorized person).
The sample of the specified contract is given in the annex to Recommendations No. 97 (see the annex to consultation).
At the conclusion of the contract of purchase and sale for an obesyopecheniye of interests of both parties in be mute should are defined:
• subjects (parties) of the contract;
• subject of the agreement (property structure);
• the price on which the property is on sale;
• percent for a payment delay (if a delay predusmotrena the contract);
• terms of payment of the main sum and percent;
• order of cession of property to the buyer;
• rights and obligations of the parties;
• responsibility of the parties for default of contract provisions.
To such contract are surely applied:
1) the list of co-owners of common property, kotoyory is on sale, with the indication of the size and costs of a share of each co-owner;
2) protocol of coordination of the price of property;
3) terms of payment by the buyer of the acquired imuyoshchestvo (see the annex to consultation).
The ownership right to the enterprise passes to property after signing of the act of acceptance-peredayochi which is the confirming document for a property oprikhodovaniye on balance.
The ownership right on fast estate is subject to registration in bureau of a technical inventayorizatsiya (BTI). Registration is carried out in BTI within certain administrative territorialnyx units according to Temporary polozheyoniy No. 7/5.
In case the contract of purchase and sale of property podlezhit to the notarial certificate, the right of a sobyostvennost to property arises at the buyer from a moyoment of such certificate or since the moment a vstupleyoniya owing to a judgment about recognition of notarially not certified contract valid (item 3 of Art. 334 of group of companies).
Font sale contracts (Art. 657 of group of companies) are subject to the obligatory notarial certificate and goyosudarstvenny registration:
• land lot;
• complete property complex;
• house (apartment) and other fast estate.
Also the parties (the buyer and the seller) can prinyat the solution of rather notarial udostoveyoreniye of property which isn’t specified in Art. 657 of group of companies.
Situation 2: repayment of a share in a raspayevanny imuyoshchestvo at one or several co-owners
Each of co-owners of property has the right to dispose sayomostoyatelno of the share in the right of the common share property (Art. 361 of group of companies). It znachit that he can sell the share of property which is in such property and udostoveyoreno the property certificate.
The seller of a share of property is obliged in writing soobshhit to other co-owners of property about a namereyoniya to sell the share, with the indication of the price and other terms of sale (Art. 362 of group of companies). To co-owners the privilege before other persons on a purchase of a share of property at the price declared for sale and on other equal conditions (except a case prodazhi at the public auction) is granted.
In case other co-owners refused from pokupki shares of property or don’t carry out the right after obtaining the message during:
• month (rather fast estate);
• ten days (for personal goods),
that the seller has the right to sell the share to druyogy persons.
The sample of the contract of purchase and sale of a property share (share) is given in the annex to Recommendations No. 97.
Conditions of such contract are similar to conditions of a dogoyovor of purchase and sale of property.
Take into consideration: in the model treaty not preyodusmotreno the indication of the concrete property, which part is redeemed. Therefore we recommend (at a neyoobkhodimost) to add contract provisions with the list of such property.
The obligatory annex to the contract of a purchase-proyodazhi of a property share (to a copy of the buyer) is the Certificate on an ownership right on a property share of the member of the collective selsyokokhozyaystvenny enterprise (the property certificate).
Definition of the price of sold property (imushcheyostvenny share) is carried out by the parties in an oboyudyony consent.
The taxation of the income of citizens from property sale
By the law No. of 889 (subitems 4.3.18) it is provided that summa the income received by the taxpayer in rezultate of alienation of property shares, which are directly received by it in a property in processe privatizations (according to standards of the ground legislation), doesn’t join in structure of the nalogoyooblagayemy income.
Therefore, the income of citizens of imushcheyostvo sale (a property share), KSP received as a result of reforming, isn’t subject to a nalogoobloyozheniye.
The enterprise buyer in this case isn’t the tax agent as there is no taxation object. The same opinion is stated to GNAU in Letters No. 5748, 7937.
In this situation, in our opinion, the income paid to citizens (the representative of sovlayodelets) for the sold raspayevanny property, shouldn’t be reflected in tax calculation f. No. 1DF as according to item 19.2 of the Law No. 889 it represent only tax agenty, and in our case the enterprise (buyer) of such status has no.
However in separate explanations of GNAU offers the enterprises paying any income to fiziyochesky persons, to reflect it in f. No. 1DF.
Therefore in order to avoid disputes with supervisory authorities we recommend to the enterprise to address in local tax inspection with written zaproyosy and according to the answer to inquiry to make the decision concerning reflection of such income in f. No. 1DF.
Citizens who as a result of property sale (a property share) received the income, not liable to tax, aren’t obliged to represent the annual tax declaration about a property condition and the income (Law No. 889 subitem 8.2.1).
Accounting of operations of repayment of property
In accounting reflection of operations, svyazanyony with property repayment at citizens, osushhestvlyaetsya according to Methodical recommendations No. 190 (item 34 – 35).
If by the contract of purchase and sale it is provided that all cost of the property acquired by agricultural enterprise will be paid within one year, the accounting of debt is kept on subaccount 685 Calculations with other creditors.
If term of final settlement exceeds one year, the accounting of such obligations is kept on account 55 Other long-term obligations.
Part of the long-term debt which is subject uplate within 12 months from the date of balance, perevoditsya in the current obligations. Such zadolyozhennost on subaccount 611 credit The current zadolzhenyonost according to long-term obligations is considered.
Example
The agricultural enterprise rented the fixed assets which initial stoyoimost makes 500 000 UAH at group of sovlayodelets. In an oboyoyudny consent the decision in the second a poyolugodiya of the current year is made to terminate the contract arendy and to sign the contract of purchase and sale of earlier rented property. Selling cost is defined in the sum of 250 000 UAH.
The contract provided a delay of payment for property for 5 years.
Reflection of such operations in accounting is presented in the table.
(UAH.)
List of documents
1. Group of companies – the Civil code of Ukraine from 16.01.03 of No. 435-IV.
2. The law No. 889 – the Law of Ukraine from 22.05.03 of No. 889-IV About a tax on the income of individuals.
3. Temporary situation No. 7/5 – the Temporary provision No. 7/5 on an order of registration of ownership rights on the nedvizhiyomy property approved by the order of Ministry of Justice of Ukraine from 07.02.02 of No. 7/5.
4. Methodical recommendations No. 190 – Methodical recommendations about reflection in accounting of operations on formation of own capital and attraction of property of the former members of collective agricultural enterprises by again created agricultural enterprises, approved by Minagropolitika Ukyoraina’s order from 02.07.01 of No. 190.
5. Recommendations No. 97 – Recommendations concerning use of property which is in the common share property, approved by Minagropolitika Ukrainy’s order from 09.04.01 of No. 97.
6. The letter No. 5748 – GNAU letter from 23.05.06 of No. 5748/6/17-0716 ("Balans-Agro", 2006, No. 12).
7. Ns 7937 letter – GNAU letter from 20.07.06 of No. 7937/6/17-0716 About letter consideration.
Annex to consultation
Dogov_r
kup_vl_-sale of Main, shho znaxoditsya in spilnij chastkovij vlasnosti
M_sto (village, selishche) __________________ ___ ______________ 200_ roubles.
Area ________________________________
Area __________________________________
Mi, sp_vvlasnik of Main, shho nalezhit to us on pravi sp_lno ї chastkovo ї vlasnost i, yaki nadali imenuyutsya Proyodavets, in osobi Golovi Kom_teta (Upovnovazhenogo) ________________________, yakiya d i ye on pidstavi dovirenosti (To the contract about spilne volodinnya, koristuvannya i rozporyadzhennya Main, shho znaxoditsya at spilnij chastkovij vlasnost i, vid ___ _______________ 200_ roubles), z odn i ye ї to the party, i ______________________________________________________________________
(nazva yuridichno ї individuals)
shho nadali imenuyetsya Pokupets, in osobi _________________________________________________, (pr_zvishche, im’ya, on batkovi individuals)
yakiya d i ye on pidstavi to the Statute, z the friend ї to the party, uklali tsy Dogov_r about:
1. Subject to the contract
1.1. The seller it is necessary ye to Pokuptsyu of Main, perelik yaky nadayetsya at a dodatka 2 to tsyy to the Contract (dali – Main), and Pokupets zobov’yazuyetsya splatiti vartist tsyy Main.
1.2. Rozm_r of a chastka skin iz spivvlasnikiv at sp_lny Main i, shho ye a subject tsyy to the Contract, viznachayetsya at vart_sny virazi i at v_dsotka (the list gromadyan z zaznachennyam rozmiru nalezhny їm a chastok at sp_lny majni viznacheniye in a dodatka 1 to tsyy to the Contract).
1.3. The right vlasnosti on Main to pass pislya pidpisannya the act priymannya-peredach_.
1.4. Pokupeets zobov’yazuyetsya splatiti vartist Main groshima r_vny chastka protyagy ____ rokiv, pislya zakinchennya pershy to fate z to the moment ukladennya to the Contract. For a v_dstrochka k_ntsevy to payment of Pokupets splachu ye ___ (vidsotkiv) r_chny vid vartosti Main. Term_ni platezhiv navedeni in a dodatka 3 to tsyy to the Contract.
1.5. Vartist Main viznachayetsya in Protokol_ pogodzhennya cini for zgodoyu storin i for a moment ukladennya to a warehouse dogoyovor ye ____ UAH. Protocol pogodzhennya cini pidpisuyetsya predstavnik kozhno ї iz storin (dodatok 2).
2. Rights i obov’yazki storin
2.1. Rights of Pokuptsya:
- otrimati vid Prodavtsya of Main, viznachene at a dodatka 2 to tsyy to the Contract, behind the act priymannya-peredach_ protyagy 3 (trox) dniv z to the moment pidpisannya to the Contract.
2.2. Obov’yazki Pokuptsya:
- povnistyu splatiti vartist Main v_dpov_dno to minds of item 1.4 tsyy to the Contract.
Rights of Prodavtsya:
- oderzhati vid Pokuptsya payment vartosti Main v_dpov_dno to minds of item 1.4 tsyy to the Contract.
2.3. Obov’yazki Prodavtsya:
- peredati Pokuptsyu of Main, viznachene the tsy Contract, behind the act priymannya-peredach_ protyagy 3 dniv z to a moyoment pidpisannya to the Contract.
3. Riziki. Vidpovidalnist storin
3.1. Rizik vipadkovo ї zagibeli chi poshkodzhennya Main bearing Pokupets z to the moment pidpisannya the act priymannya-peredach_.
3.2. For nesplatu Pokuptsem vartosti Main in termini, peredbacheni the Contract, naraxovuyetsya a fine in rozmiri ____ % r_chny vid nesplacheno ї vchasno to a bag. Splata peni not zvilnya ye Storoni vid vikonannya zobov’yazan, peredyobacheny tsy Contract.
3.3. To the party zvilnyayutsya vid vidpovidalnosti for chastkove Abo povne nevikonannya zobov’yazan for tsy Dogoyovor, yakshho nevikonannya became a nasl_dok d i ї nezdolanno ї to force, tobto podij, nastannya yaky Storoni nespromozhni buli peredbachiti i poperediti (pozhezh i, poven i, zemletrusi, inshi stixijni yavishha to the nature, voyenni d i ї leanly)
4. Diya to the Contract
4.1. Dogov_r nabuva ye chinnosti z day of the yogi ukladannya i d i ye protyagy ___ rokiv.
4.2. Dostrokov pripinennya to the Contract that vnesennya in nyy zmin zdijsnyuyetsya for pismovoyu zgodoyu storin.
4.3. Lines d i ї to the Contract mozhe buti prodovzheny for zgodoyu storin.
5. Inshi umovi
5.1. Dispute behind the tsy Contract rozglyadayutsya the parties a highway peregovoriv, and in razi nedosyagnennya zgodi – in a ship order.
5.2. Tsa Dogov_r p_dpisano in dvox prim_rnik:
one zberigayetsya at Pokuptsya, drugy – at Prodavtsya.
Rekv_ziti i pidpisi storin:
V_d Pokuptsya: V_d Sp_vvlasnik_v:
(povna nazva hospodariates) (pr_zvishche, im’ya, on batkov i) Yuridichna of the address:
___________________________ passport: ____________________
(misto, village, selishche) (seriya that number)
___________________________ ___________________________
(area) (Kim i if vidaniye)
___________________________ ___________________________
(area)
R/R _________ IFI _______
(number)
_______________________________ ___________(______________________)
(nazva bankivsko ї establish) (pidpis) (pr_zvishche, im’ya, on batkov i)
_______________________________ ___________(_____________________)
(posada) (pidpis) (pr_zvishche, im’ya, on batkov i)
L. S.
Dodatok 1
to the Contract kup_vl_-sale
vid ___ _______________ 200_ roubles.
Perel_k spivvlasnikiv iz zaznachennyam rozmiru i vartosti majnovo ї chastka to Main i, shho prodayetsya
Head Kom_teta (Upovnovazheny) ______________ (________________________)
(pidpis) (pr_zvishche, im’ya on batkov i)
Dodatok 2
to the Contract kup_vl_-sale
vid ___ _______________ 200_ roubles.
Protocol pogodzhennya cini
V_d Sp_vvlasnik_v: V_d Pokuptsya:
__________ ________________________ __________ ________________________
(pidpis) (pr_zvishche, im’ya, on batkov i) (pidpis) (pr_zvishche, im’ya, on batkov i)
Dodatok Z.
to the Contract kup_vl_-sale
vid ___ _______________ 200_ roubles.
Term_ni pay Pokuptsem of pridbany Main
V_d Sp_vvlasnik_v: V_d Pokuptsya:
__________(___________________) __________(_______________________)
(pidpis) (pr_zvishche, im’ya, on batkov i) (pidpis) (pr_zvishche, im’ya, on batkov i)