N.A. Martynyuk, tax expert
"Movable - immovable" in the first report on property tax
The texts of the Letters of the Ministry of Finance mentioned in the article can be found: section "Financial and personnel consultations" of the ConsultantPlus systemProperty tax is no longer imposed on movable property registered as fixed assets (that is, on accounts 01 and 03) from 01.01.2013 sub. 8 p. 4 art. 374 of the Tax Code of the Russian Federation.
In this regard, the readers have "transitional" questions, to which we are answering.
Movable and immovable
The Tax Code does not establish what is movable property and what is immovable, so you need to be guided by definitions from civil legislation. Art. 11 Tax Code of the Russian Federation... It says that real estate is clause 1 of Art. 130 of the Civil Code of the Russian Federation:
- everything that is firmly connected with the land, that is, objects, the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures, objects of unfinished construction;
- aircraft and sea vessels subject to state registration, inland navigation vessels, space objects.
All other things (including cars and other vehicles) Letter of the Federal Tax Service dated February 18, 2013 No. BS-4-11 / [email protected] ) are recognized as movable property.
It's safer to pay tax from elevators in buildings
K. Sinkevich, Moscow region
At the beginning of the year, we put into operation new elevators in our building, we take them on record as separate objects of the OS, since the service life of the building is 50 years, and each elevator is 15 years. Do I need to pay tax on them now: are they considered movable property or is it immovable?
: If you want to exclude disputes with the tax authorities, it is safer to pay the tax from the elevators adopted in 2013 to account 01 (as well as built-in ventilation, heating, sewerage systems, etc.). The Ministry of Finance insists that even if you are in full compliance with clause 6 of PBU 6/01 and its own Letters and Letters of the Ministry of Finance dated 23.10.2009 No. 03-03-06 / 2/203, dated 23.09.2008 No. 03-05-05-01 / 57, dated 26.06.2006 No. 03-06-01-04 / 136 you take into account elevators as separate objects of the fixed assets, they still form a single real estate object with the building. Therefore, according to the financial department, they cannot be considered movable property.
At the same time, the question of whether an elevator is a part of a building or an independent object has already been considered in the courts in relation to income tax. And there is court decisions that the elevator is a separate object Resolutions of the FAS MO dated 16.09.2011 No. A40-130812 / 10-127-755, dated 21.01.2011 No. КА-A40 / 16849-10... If you want to take the risk, you can take advantage of them. But keep in mind: these courts did not assess whether elevators are real estate or not. Therefore, one cannot be sure that the decisions on property tax will be the same.
However, the Ministry of Finance does not provide any compelling arguments. He refers to the Law on Technical Regulations for the Safety of Buildings and Structures sub. 6 p. 2 art. 2 of the Law of 30.12.2009 No. 384-FZ, which refers to the elevator as part of the building. But the scope of this Law is narrow - safety requirements. It has nothing to do with tax regulation.
Such a problem will most likely arise not only with objects located inside buildings, but also with those adjacent to them. These are, for example, access and on-farm roads, asphalted areas, which are accounted for as separate inventory objects of the OS. Often, the government agency refuses to register them as separate real estate objects, considering them to be an integral part of a complex real estate object, for example, a factory complex.
And we can assume that here the Ministry of Finance will take the same position: since this is part of the real estate, then it must be included in the tax calculation, even if the object is accepted on account 01 starting from 01.01.2013 Letter of the Ministry of Finance dated 16.10.2012 No. 07-02-06 / 247.
Property tenants are still required to tax inseparable improvements
Y. Perebezhkina, Stavropol Territory
We rent a building, in it, with the consent of the landlord, we conduct capital works... The result will be inseparable improvements that we will register as an asset in 2013.
Do we understand correctly that this asset for us as a tenant is not real estate and we will not have to pay property tax on it? After all, the ownership of any real estate is subject to state registration and h. 1 tbsp. 131 of the Civil Code of the Russian Federation and no property rights are registered for inseparable improvements.
: With this question, we turned to a specialist of the Ministry of Finance. In his opinion, the lessee must pay tax on the cost of inseparable improvements from the moment they are registered as part of the fixed assets and until they receive reimbursement of their value from the lessor, or until the expiration of the lease agreement.
FROM AUTHORIZED SOURCES
Head of the Property and Other Taxes Division of the Tax and Customs Tariff Policy Department of the Ministry of Finance of Russia
“Capital investments in the leased property (that is, the cost of irreplaceable improvements), which the lessee has recognized as part of property, plant and equipment since January 1, 2013, is subject to taxation until disposal.
They are not subject to tax exemption for movable objects registered as fixed assets from 01.01.2013 sub. 8 p. 4 art. 374 of the Tax Code of the Russian Federation... And that's why. The costs of modernization and reconstruction of a property after their completion increase its initial value p. 27 PBU 6/01... That is, such expenses of the owner are subject to property tax as part of the increased value of the property. And especially for the case when such costs are borne not by the owner, but by the lessee, the specifics of their accounting have been established - as part of the lessee's OS as a separate inventory object a nn. 5, 6 PBU 6/01... Therefore, it is the lessee who pays the property tax on these costs until the disposal of this inventory item a ”.
However, there are arguments in favor of the opposite point of view that can be used if the issue price is high for you.
According to the Civil Code, real estate is a thing clause 1 of Art. 130 of the Civil Code of the Russian Federation... Capital investments in the improvement of the leased object, which you, as a tenant, take into account in yourself as an asset p. 5 PBU 6/01; nn. 3, 10 Methodical instructions, approved. By order of the Ministry of Finance of 13.10.2003 No. 91n, are costs that are not a thing. This means that they are not real estate and therefore are not subject to tax if they are accepted by the tenant on account 01 starting from January 1, 2013. p. 1, sub. 8 p. 4 art. 374 of the Tax Code of the Russian Federation
What is considered for property tax as the acceptance of a movable object on record starting from January 1, 2013
An obvious thing, but the Ministry of Finance had to emphasize it in several letters at once: if in 2013 you acquired a second-hand movable property, which until this year was accounted for by the previous owner as his asset, then you do not have to pay tax - the date of registration is important by you, that is, by the taxpayer himself Letters of the Ministry of Finance dated 07.02.2013 No. 03-05-05-01 / 2767, dated 07.02.2013 No. 03-05-05-01 / 2766, dated 05.02.2013 No. 03-05-05-01 / 2422.
But there are also not so obvious cases.
Revamped facility with zero residual value: costs are subject to tax
T. Starchuk, Krasnodar Territory
There is an old vehicle, which as of 01/01/2013 has long been fully depreciated, so we are taxed on property last years didn't get paid. In 2013, it was modernized: the engine was changed, installing a more powerful one costing 150,000 rubles. Do I need to pay property tax on this amount?
: You will have to pay the tax. You have repaid the cost of an item of fixed assets, and the item itself has not been written off from the register (you must keep it on account 01 as long as it is in your organization and is able to bring economic benefits as a fixed asset p. 29 PBU 6/01; p. 76 Methodical instructions, approved. By order of the Ministry of Finance of 13.10.2003 No. 91n).
Details about accounting component parts complex property as separate objects of the OS is written:Once the car was registered before 2013, it is not subject to tax exemption. Upgrades increase the initial cost of the asset p. 27 PBU 6/01... Therefore, now the residual value of the car is 150,000 rubles. plus the cost of work to replace the engine. You must take it into account in the property tax base about clause 1 of Art. 375 of the Tax Code of the Russian Federation; Letter of the Ministry of Finance dated 01.03.2013 No. 03-05-05-01 / 6096.
The tax would not have to be paid if in 2013 new parts were installed on an object that, due to its unsuitability for use as a fixed asset, was previously written off from the balance sheet, but was never liquidated. Then in 2013 this object would have to be registered as discovered during the inventory and re-accepted to account 01. Initial cost would be market value The “discovered” object plus the cost of bringing it to a state in which it becomes usable again (including the cost of purchasing and installing new parts).
When modernizing fixed assets included in fixed assets as of 01.01.2013, see if some of the costs can be taken into account as independent fixed assets.
For example, you have equipped one of the company's cars with some technical devices whose service life is significantly different from the service life of the car itself and which, if necessary, can be easily rearranged to other cars. That is, they do not form a single indivisible complex with the car. Register them in 2013 as separate OS p. 6 PBU 6/01, and you will not have to pay tax on them.
Leasing: will changing the asset holder save on tax
A. Nikolaeva, St. Petersburg
We are lessors, we have industrial equipment leased before 2013. We are thinking of drawing up an agreement to the contracts on the transfer of equipment to the balance of the lessees so that neither we nor they pay property tax on it. After all, their equipment will be accepted for accounting as an OS already in 2013. Could there be tax claims and what?
: Claims are possible.
Of course, the lessee has a formal reason not to pay tax on the leased object in your situation. After all, the Tax Code does not specify that the property registered as a fixed asset from 01.01.2013 is exempt from tax only as a result of its acquisition.
The Ministry of Finance was already asked a similar question, and he avoided answering a Letter of the Ministry of Finance dated 11.02.2013 No. 03-05-05-01 / 3372... Apparently, now he has no definite position. Until it appears, field inspectors will act as they see fit.
Firstly, they may insist that such property cannot be considered registered this year.
After all, the equipment has long been put into operation, after the change of the asset holder it will be used by the same lessee and will not change the owner: the lessor will remain for them, that is, in clause 1 of Art. 11 of the Law of October 29, 98 No. 164-FZ... And in your leasing agreement, the equipment was accounted for as fixed assets until 2013. So the tax authorities may well come to the conclusion that the lessee is obliged to pay tax on this property, even if it only got on its balance sheet in 2013.
Secondly, You may be accused of receiving an unjustified tax benefit if you do not indicate other reasons, other than tax savings, for the sudden change of the balance holder. After all, the relationship between the parties does not change.
One can argue with this: in itself, the introduction of amendments to the agreement is not a reason to consider the resulting tax benefit unreasonable. Clause 4 of the Resolution of the Plenum of the Supreme Arbitration Court of 12.10.2006 No. 53.
Please note: when transferring the equipment to the balance of the lessee, you will lose the ability to depreciate it in tax accounting. clause 10 of Art. 258 of the Tax Code of the Russian Federation; clause 2 of Art. 31 of the Law of October 29, 98 No. 164-FZ... Therefore, first compare the property tax savings with the amount by which your income tax will increase.
Purchased in 2012, transferred to account 01 in 2013, the question is: why?
L. Mushikhina, Rostov-on-Don
At the end of last year, we bought warehouse equipment and machinery, and put them into operation and took them into account on account 01 only in 2013. Do we understand correctly that property tax on these objects can not be paid, since the date is not of acquisition, but of acceptance on accounting as an OS?
: It all depends on the reasons why the purchased property remained on account 08:
- <если>it was ready for use last year, but you took it into account on account 01 only at the time of commissioning this year, then you did it wrong and must pay tax on these objects. After all, as soon as the object is ready for use as an OS, it must be immediately transferred to account 01, without waiting for commissioning. p. 4 PBU 6/01;
- <если>it was not ready for operation, that is, it required some more capital investments, which were completed only in 2013, then there is no need to pay tax nn. 4, 7, 8 PBU 6/01; p. 41 of the Accounting Regulations, approved. Order of the Ministry of Finance dated July 29, 1998 No. 34n; Clause 8 of the Information Letter of the Presidium of the Supreme Arbitration Court dated 17.11.2011 No. 148... For example:
- after you received the ownership of the purchased objects, you had to deliver them to the place of operation, where they arrived only in 2013;
- commissioning or installation was required, some details were missing for use according to the planned purpose.
All this must be confirmed by documents. They can be both external documents (for example, a primary source for the purchase of something necessary for installation, transport documents), and internal (for example, a director's order with a list and terms of work to prepare the object for use).
We do not expect registration in the traffic police for cars purchased at the end of 2012
E. Bocharov, Voronezh
We bought the car in December 2012, the registration with the traffic police took place this year. Do I need to pay property tax on the car?
: Yes. After all, the car is suitable for use, regardless of the presence of registration (obtaining it is a matter of time). This means that you should have taken it into account on account 01, without waiting for commissioning, that is, already in the month of purchase (for more details, it is written:,), in your case - in December 2012. So your car is not subject to tax exemption. falls under.
We divided the old OS into several: we still pay the tax
E. Zemskaya, Moscow region
We sold several air conditioners from the air conditioning system, accounted for as a single OS object. I formalized the disposal of this object and the creation of several new ones on its basis: one remains with us, the rest - for sale. Accordingly, the one that remained with us was accepted on account 01 in 2013. Do we have the right not to pay property tax on it, because this is another asset with a new inventory number?
: Tax must be paid. To register the disposal of an object and the acceptance of new ones in your case is a mistake. Correctly - to reflect the division of the object into several parts by internal transactions on account 01. That is, the asset object should have remained the same, only its value decreased after the sale of air conditioners.
What to include in reporting and what not
Show only property that is subject to tax in the reporting
M. Rudnitskaya, Solnechnogorsk
How to show in the calculations the cost of movable fixed assets registered in 2013: include it in line 140 "Average cost of tax-exempt property for reporting period»?
: The cost of such objects does not need to be reflected in the property tax reporting at all. Indeed, line 140 shows the cost of objects falling under the benefits. And movable property, accounted for as a fixed asset from 01.01.2013, does not apply to privileged property - it is not subject to taxation at all clause 1 of Art. 56, sub. 8 p. 4 art. 374 of the Tax Code of the Russian Federation... It is only necessary to report on the value of fixed assets, which are an object. clause 1 of Art. 80 of the Tax Code of the Russian Federation; Letter of the Federal Tax Service dated 12.02.2013 No. BS-4-11 / [email protected] .
By the way, due to the fact that this is not a privilege, but an exception from the object of taxation, the inspectorate does not have the right to request from you documents on movable fixed assets registered from 01.01.2013 within the framework of the cameral office. After all, the documents for office check tax authorities can only demand from those who declare in the declaration the use of one or another benefit clause 6 of Art. 88 of the Tax Code of the Russian Federation.
Reflect movable property accepted for accounting from 01/01/2013 on a separate subaccount of account 01 (03). This makes it easier to prepare property tax reports.
Do I need to report to those who do not have real estate
N. Zarechnaya, Vologda
We have no real estate. Residual value of all movable fixed assets as of 01.01.2013 is equal to zero. Do I need to submit the calculation for the I quarter of 2013 and generally report in 2013?
: Necessary. You will have to hand over zero calculations until you write off from the balance sheet all objects registered before 2013 in connection with their sale, liquidation and other disposal of m Letter of the Federal Tax Service dated 08.02.2010 No. 3-3-05 / 128; p. 29 PBU 6/01.
It is not necessary to report only to those organizations that have neither real estate, nor movable fixed assets, put on account 01 before 2013 (for example, all movable fixed assets you have are rented or acquired already in 2013). These organizations are not property tax payers. clause 1 of Art. 373, p. 1, sub. 8 p. 4 art. 374 of the Tax Code of the Russian Federation, which means that they do not have such a duty of payers as submitting tax reports to clause 1 of Art. 386 of the Tax Code of the Russian Federation.
Many are now looking for ways to turn movable assets registered before 2013 into registered movable assets this year, for example:
- friendly companies in 2013 sell each other their fixed assets of the same type (exchange furniture, office equipment, etc.). That is, each receives approximately the same property as the one that she sold, but it was delivered to account 01 in 2013 and is not formally subject to tax;
- the company in 2013 first sells, and after a while buys back its OS. As a result, it remains with the same property, only it was registered in 2013;
- the company sells its OS and then leases it. They were taken into account by the buyer in 2013, and he does not pay tax on them.
We warn you: in these and similar cases, the inspectors will certainly charge additional tax, insisting that the tax benefit was received unreasonably Clause 3 of the Resolution of the Plenum of the Supreme Arbitration Court of 12.10.2006 No. 53... Moreover, those companies that will carry out these operations for reasons other than tax savings are also at risk. They should work out a detailed rationale for the business purpose of such transactions.
Since January 1, 2015, fixed assets included in the first or second depreciation group are not recognized as objects of taxation in accordance with the Classification of fixed assets approved by the Decree of the Government of the Russian Federation of 01.01.2002 No. 1 (subparagraph 8 of paragraph 4 of article 374 of the Tax Code of the Russian Federation) ...
Note. To the 1st depreciation group include fixed assets with a maturity useful use from 1 to 2 years inclusive, to the 2nd depreciation group - fixed assets with a useful life of 2 to 3 years inclusive.
What is property? Definition and types of property: movable and immovable, state, municipal, organizations and individuals
It is collective and heterogeneous in its composition. Property can be considered as a separate thing or as a kind of aggregate material values(see Art. 133-135 of the Civil Code). In another sense, this term can cover property rights (see 301, 303 of the Civil Code of the Russian Federation). In inheritance law, the concept "" includes not only objects of the material world and rights, but also the obligations of the testator (see.
What property (movable or immovable) does the car belong to?
Immovable things also include those subject to state registration air and sea vessels, inland navigation vessels, space objects. Other things may be referred to immovable things by law.
Items not related to real estate, including money and securities, are considered movable. Registration of rights to movable things is not required, except for the cases specified in the law.
How to distinguish movable property from immovable property?
However, this rule only applies to items registered as property, plant and equipment after January 1, 2013. At first glance, everything is very simple. First, we determine whether movable property or not, then we find out the date of registration and make the appropriate conclusion: whether to charge tax or not. It is known that real estate is inextricably linked with land, and movable property does not have a strictly defined and permanent place.
The criteria by which the courts assess whether an object is movable property or relates to real estate
8 p. 4 art. 274 of the Tax Code of the Russian Federation). In this regard, it is important for the company to correctly determine the type of the acquired object.
The concepts of movable and immovable are contained in article 130 of the Civil Code of the Russian Federation. However, this norm does not establish a specific list of such objects, but only indicates a general criterion for classifying it as real estate. In particular, immovable things include land, subsoil plots and everything that is firmly connected with the land.
On assignment of objects to movable
Question: In accordance with paragraphs. 8 p. 4 art. 374 of the Tax Code of the Russian Federation is not recognized as an object of taxation for the tax on the property of organizations, movable property accepted from January 1, 2013 on record as fixed assets.
TPP is an energy production and technological complex of power plants, which unites movable and immovable property, designed to convert the chemical energy of fuel into electrical energy and heat.
Does the car belong to real estate
Auto vehicles do not meet the above criteria for real estate objects. They are also not directly related to real estate objects by law. Thus, vehicles should be considered movable, despite the mandatory state registration.
If you need help in solving any legal problem that has arisen (return of a driver's license, assistance in an accident, consumer protection or any other questions), you can contact lawyers and attorneys for free help by filling out and sending an application for consultation.
Clarified the procedure for classifying fixed assets as movable and immovable property
Aircraft and sea vessels, inland navigation vessels, space objects subject to state registration are also recognized as immovable. The law does not movable property can be attributed to something else. Items not related to real estate are considered movable.
In addition, the Ministry of Finance of Russia noted that when classifying fixed assets as movable and immovable, it is necessary to take into account the provisions Federal law from 30.
What is the difference between an immovable object and a movable one?
By the way, apply this rule also when you buy used fixed assets (letter of the Ministry of Finance of Russia dated March 11, 2013 No. 03-05-05-01 / 7108).
Which objects are real estate and which are not, spelled out in article 130 Civil Code RF. However, in practice, questions arise, the answers to which the code, alas, does not provide. Let's say you purchased and installed fire alarms in your office premises this year.
In this article, we would like to talk about property and its main types. Including we will give definitions to such terms as movable property and real estate. We will also look at the concept of property and discuss its forms and types. We hope you find this information useful.
Property is a complex legal term with different interpretations
In different legal regulations, depending on the field of application, this concept can be used in different meanings. It is collective and heterogeneous in its composition. Property can be considered as a separate thing or as a kind of aggregate of material values (see Art. 133-135 of the Civil Code). In another sense, this term can cover property rights (see 301, 303 of the Civil Code of the Russian Federation). In inheritance law, the concept of "property" includes not only objects of the material world and rights, but also the obligations of the testator (see Art. 1112 of the Civil Code of the Russian Federation). Until now, there is no common understanding of property in the legal literature. Nevertheless, many researchers, including V.A.Lapach, support the most capacious definition of this term. In their opinion, it should include any products of nature and human activity (including intellectual), which are endowed with a certain value and turn into a commodity, as well as the rights and property obligations arising from them. Summarizing the above, let's summarize. Property is the main object of civil rights, which includes tangible things (including securities and money), the results of intellectual labor and other intangible benefits, as well as property rights and property obligations.
Movable property. Money and securities
In civil relations, the most common object is things. They are classified into two main types - movable and immovable. Movable goods can easily move with their owners, can be generic or individually defined, and are usually interchangeable. In paragraph 2 of Art. 130 of the Civil Code of the Russian Federation describes that the category of movable property includes not only various objects of the material world, but also money with securities. The latter are special documents certifying property rights. They have requisites and a fixed form. In Art. 143 of the Civil Code of the Russian Federation are described Various types valuable papers, including government bonds, bills of exchange, checks, savings and certificates of deposit, bill of lading, and stocks.
List of objects related to real estate
Real estate is objects of the material world that are always in one place, having a close connection with the earth, and are irreplaceable. In Art. 130 of the Civil Code of the Russian Federation describes what things can relate to real estate... Their list is as follows:
Article 132 of the Civil Code of the Russian Federation supplements this list and refers to it another type of real estate - an enterprise understood as a property complex used for entrepreneurship and acting as an independent subject of sale and purchase and other transactions. Also in Art. 1 of the Federal Law (dated 21.07.97) No. 122-FZ as immovable property are considered Living spaces intended for the residence of citizens and meeting all the established sanitary, technical, fire-prevention and other requirements, and non-residential premises, intended for commercial, administrative, warehouse, industrial use.
The concept of ownership. Common property
In this article, we would like to highlight another important term. civil law- "property". In a legal context, it denotes the attitude of a person to the thing he has as to his own, and reflects the entire complex of property rights. The concept of ownership implies that the subject of legal relations has several rights, including the right to use (the ability to use a thing at will and have income from it), possession (that is, physical possession of the thing) and disposal (the ability to present, exchange and sell an item). Common property is a special type of legal relationship that arises when the rights of use, disposal and possession of the same good are held by several persons (two or more) at once. In this case, the good is a common property, it can consist of indivisible and divisible things or their combination. may arise on indivisible things in the event that they are inherited by several persons by law or by will. An example is the situation when the children of the deceased testator receive his housing - a country house.
State owned property
In the Russian Federation, various forms of ownership are recognized and protected by law, including state, municipal, and private. In Art. 212 of the Civil Code of the Russian Federation gives their classification. (i.e state property movable and immovable) is represented by two types: federal and property of subjects - republics, regions, cities, territories, etc. The state acts as a subject of legal relations, like any other owner, and therefore has the right to dispose of material and intangible benefits at its discretion give, lease, sell, etc. An example of such property can be factories, mines, military production, etc. The RF and its subjects exercise their property rights through government bodies authorities or on special instructions of the President, Government and representative bodies.
Property of municipalities
Municipal property is a separate form of property that exists in parallel with the state property. Municipal property belongs by law to rural, urban settlements or other municipalities and is intended to meet the interests of their residents. It is divided into two types: property, which is assigned to municipal institutions and enterprises, and property, which is not assigned to enterprises and municipal institutions and which constitutes the treasury. The list of municipal property includes municipal natural and municipal organizations, enterprises, banks, extrabudgetary funds, living quarters and housing stock, etc.
Private ownership. Property of individuals
It is classified as property of individuals and legal entities. The first is a form in which the results of production and funds belong to individuals. TO private property natural person can include any property, except for that which is excluded by law from the right of private property, the value and quantity of which is not limited (except for some established cases). Legal entities acting as subjects of property rights can be any commercial and non-profit organizations- associations, charitable foundations, business partnerships, consumer cooperatives, unions, etc. Exceptions are state, municipal enterprises and owner-funded institutions. The property of an organization is any movable and immovable property that any commercial or non-commercial enterprise uses in its production or other activities. This can be equipment, land, money, buildings, raw materials, products, etc. In the Russian Federation, the movable and immovable property of an organization is recognized as an object of taxation. Wherein the tax base calculated as average annual cost material values and is charged in accordance with the data accounting enterprises. Based on the results of tax period equal to one calendar year, a property declaration must be submitted from each organization.
Instead of a conclusion
So, in this article we have answered the question: "Is property?" and defined important concepts such as "property" and " common property". We talked about and found out how the movable property differs from the immovable thing. In addition, we talked about the forms of ownership existing in the Russian Federation and considered the difference between state and municipal property, as well as private property of individuals and legal entities.
