Today, a banking operation called “leasing” is becoming increasingly widespread. What is "leasing"? How is it better and why is it worse than a regular loan? Why is leasing beneficial for a bank or credit institution (lessor), and why is it beneficial for an enterprise (client). How accessible is it and who is it intended for? What exactly can you get by leasing? How does a leasing transaction take place? I will try to answer these and some other questions relatively briefly in this article.
Perhaps we should start with a definition. So, leasing is one of the forms of credit, in which the property is transferred for a long-term lease with a subsequent right of purchase and return. If we adhere to greater rigor in concepts, then the following definition of leasing should be mentioned. Leasing is a set of economic and legal relations, according to which the lessor undertakes to acquire ownership of the property specified by the lessee from a seller identified by him and to provide the lessee with this property for a fee for temporary possession and use with the right of subsequent redemption. The leasing agreement may provide that the choice of the seller and the purchased property is made by the lessor. Now we can identify the main participants in the leasing operation. This:
- Lessee(The client is usually a legal entity)
- Lessor(Commercial bank or other credit non-banking organization, etc.)
- Supplier(Equipment seller: industrial enterprise, real estate company, auto manufacturer or dealer, etc.)
- Insurer(Basically, any insurance company)
Let's consider the role and functions of each of them.
Lessee- an individual or legal entity who, in accordance with the leasing agreement, is obliged to accept the leased asset for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement. Actually, it all begins with him.
Lessor- an individual or legal entity who, at the expense of borrowed and (or) own funds, acquires ownership of property during the implementation of a leasing agreement and provides it as a leased asset to the lessee for a certain fee, for a certain period and on certain conditions for temporary possession and use with transfer or without transfer to the lessee of ownership of the leased item. As noted above, a commercial bank, a non-bank credit organization, or a leasing company can act as a lessor. In principle, the lessor can be a legal entity or an individual.
Supplier or seller- an individual or legal entity who, in accordance with a purchase and sale agreement with the lessor, sells to the lessor within a specified period the property that is the subject of leasing. The seller is obliged to transfer the leased item to the lessor or lessee in accordance with the terms of the purchase and sale agreement. The seller can simultaneously act as a lessee within the same leasing legal relationship. Any of the leasing entities can be a resident of the Russian Federation or a non-resident of the Russian Federation.
Insurer is an insurance company that is usually a partner of the lessor or lessee. It participates in a leasing transaction, insuring property, transport and other types of risks associated with the leased asset and/or the leasing transaction. The function of the insurer in a leasing operation is to draw up an insurance contract when concluding a transaction between the lessee and the lessor. Unlike other participants, it is not required when concluding a leasing transaction. It is used only in certain schemes when transaction insurance is required.
So, some commercial banks carry out operations called leasing. Leasing assumes that the bank (lessor) purchases equipment, which it leases to its client with a subsequent right to purchase the leased equipment. Today, this area of non-traditional banking operations is developing very actively; there are hundreds of credit institutions that provide their clients - commercial organizations - with leasing services for this or that equipment. (As a rule, legal entities use leasing more often). It should be noted that now one can often encounter a situation where leasing is separated from the total mass of various banking operations into a separate division.
Credit organizations most often provide financial leasing services through specially created one hundred percent “subsidiaries” - leasing companies, therefore often the first part of the name of the leasing company coincides with the name of the founding credit organization. (Examples: PromSvyazLeasing, Avangard-leasing; Petroconsult Leasing company; KMB-leasing; Agroprom Leasing, etc.) Leasing contains elements of credit, rental and delivery. Today we can say that leasing is no longer just one of the banking operations, but a separate specialized type of business. (It is for this reason that separate leasing companies are often created, since sometimes for a number of reasons it is simply not profitable for banks to carry out leasing operations on their own).
Question: What can you get on lease?
Answer: any movable and immovable property that can be used for business activities. For example, buildings, special equipment, equipment, transport, aircraft, communications. However, it is quite difficult to lease real estate, since the minimum depreciation period is 10-12 years, while financial lease usually does not exceed 5-6 years. Car leasing is especially popular today: often they are even registered to the company, but are actually given to employees for use. The subject of leasing cannot be land plots and other natural objects, as well as property that is prohibited for free circulation by federal laws. (For example, weapons).
Many firms and enterprises at a certain stage of their development, be it the opening (or creation) of a new enterprise, expansion, or technological update of an existing one, come to the conclusion that it is more profitable for them to purchase certain equipment on credit (leasing), so that, gradually by paying the shares determined by the bank, redeem it completely. This allows you to reduce the costs of the enterprise, but at the same time purchase the necessary equipment in the shortest possible time.
How does a leasing transaction work? Let's assume that a certain company has already chosen a suitable organization that provides leasing services. Then, as a rule, everything begins with a regular telephone call from a potential lessee to the leasing company. Then there is a direct meeting between representatives of the leasing company (lessor) with representatives of the lessee company or the lessee himself. During the meeting, the parties receive information about each other and also discuss the nuances of the proposed transaction. In the event that both parties to this meeting are ready to begin implementing the project, the company will be asked to fill out a leasing application, after which it will also require a certain list of documents necessary for consideration of the application. (). After which a thorough analysis of the information provided is carried out. Typically, processing of such information takes about 10 days. Sometimes a little less, sometimes a little more, depending on specific conditions. After the credit institution (lessor) makes a positive decision on the company’s application, a stage occurs at which all necessary agreements are drawn up and signed between the lessor, lessee, supplier (seller) and, if required, by the insurer. After concluding an appropriate agreement between the lessor and the lessee (company), the lessor directly acquires ownership of the leased item specified by the client (company) from the supplier (seller), also specified by the client. The purchase and sale agreement for the leased asset, concluded between the lessor and the supplier (seller), fixes the obligations of the supplier (seller) to deliver equipment (the leased asset) within a certain time frame, its cost and payment procedure, quality and completeness, delivery and installation obligations, if not otherwise stated. Next, the leased item is delivered either directly to the client or first to the lessor, depending on the agreement. In advance, if required, it is possible to insure it against a full range of property risks. From the moment the equipment (the leased item) is transferred to the client, he is responsible for the safety, proper storage conditions and maintenance of the equipment in working condition. (Unless otherwise stated). During the term of the leasing agreement, ownership of the leased asset remains with the lessor, and the client company uses the equipment for its own purposes, paying monthly (or quarterly) payments established by the leasing agreement. In case of failure to make payments in accordance with the leasing payment schedule specified in the contract, the lessor has the right to withdraw the equipment owned by him and sell it on the secondary market. If the client makes lease payments in accordance with the schedule and pays the contract amount in full, ownership of the equipment passes to him. All income and profits received by the client during the use of the equipment are the property of the client.
As it turns out, everything is not so complicated. And now, after all the main theoretical issues have been considered, I will move on to describe the most important advantages and disadvantages of leasing, while simultaneously comparing it with a loan.
- Leasing allows the lessee company to save on taxes. For example, Chapter 25 of the Tax Code of the Russian Federation states that payments under leasing agreements fully reduce the tax base for income tax. This means that the state gives domestic enterprises the legal opportunity, through leasing, to direct their resources to expand production and introduce advanced technologies, and not to pay taxes. By the way, the leasing company also has the opportunity to save on taxes.
- Leasing interest rates, which, according to various estimates, range from 9-15.5% in foreign currency and 16-21% in rubles, can often be 2-4% higher than the rates when obtaining a loan. After all, as a rule, the leasing company (if it is separate) itself gets a loan from the bank, which means it lays down a certain margin. However, even despite this, leasing operations turn out to be 15-25% more profitable than a loan. (The total tax savings, technical capabilities of the lessor and other advantages, in general, easily pay for all costs of margin, etc.) (The scheme discussed in this paragraph is presented below. It is quite common).
- Leasing gives a company the opportunity to update technological equipment without any special complications, and therefore restore and increase the company’s potential. (About 70% of all equipment in Russia is worn out, both physically and morally. Many promising enterprises cannot fully realize their potential, working on outdated equipment that is unable to produce products that meet the requirements of the modern market. Leasing is an effective way to replace worn-out equipment, accessible to enterprises in the real sector of the economy). This also allows the lessee company to fully comply with all modern requirements, both in terms of equipment and the quality of the products produced (or services provided). Having modern equipment, the lessee company has the opportunity to plan its business for several years in advance, reducing the main risks.
- Minimization of risks due to the limited liability of the lessee. At the same time, the leasing company reduces the risk (compared to a loan), because has an indisputable right to ownership of the property, and accordingly, in the event of bankruptcy for any reason, the lessee company (client) has the priority right to payments. (Refunds)
- Thanks to minimizing the risks of the leasing business, it is often much easier for a client to enter into a financial lease agreement than to obtain a “long-term” loan. This is especially true for medium and small businesses, for which banks provide loans very carefully. Some companies sometimes do not require any additional guarantees from the client, since the equipment itself (the leased item) is the collateral.
- A leasing agreement is more flexible than a loan agreement: a loan always involves limited terms and amounts of repayment. When leasing, the lessee company has the opportunity to work out a convenient and flexible financing scheme with the lessor.
That, in principle, is all that any company (and possibly an individual) needs to know as a potential lessee. Often, leasing actually turns out to be much more profitable than a loan, both for the lessee and for the lessor.
To update equipment, purchase new vehicles, expand production or office space, large financial investments are required. What to do if it is not possible to collect the required amount at a time or take out a loan? There is a very effective alternative - leasing. Let's talk about what this term means, what types of leasing there are, what property can be leased, how to correctly complete such a transaction, and what pitfalls this procedure has.
Despite the fact that “lease” is translated from English as “rent,” leasing is a kind of “hybrid” of rent and credit with the involvement of a third party – a leasing company. The latter buys the property from the seller and transfers it to the lessee. He pays a certain amount monthly, which is both a rental payment and a loan payment (depending on the user’s further intentions). At the end of the period specified in the contract, the property can be purchased at its residual value or returned to the leasing company.
Simple example:
The auto company plans to renew its bus fleet. It enters into an agreement with a leasing company (let it be VTB Leasing, YarKamp Leasing or any other). A leasing company buys 10 buses from a manufacturing plant (for example, MAZ) for a total amount of 60 million rubles. The buses are transferred to the auto company, which pays an initial payment of 10 million rubles, and then deposits 1.6 million rubles monthly into the leasing company’s account for three years.
In the 19th century, leasing began to actively develop in the USA and Great Britain. The concept of “lend-lease” during the Great Patriotic War became significant for our country: the provision of military equipment was also a leasing option. Leasing began to significantly influence economic development in the 50s of the last century. The founder of the modern leasing industry is called American entrepreneur Henry Schofeld, who opened the first specialized leasing company in San Francisco.
In the USSR, leasing was used for enterprises to purchase expensive imported equipment back in the 70s and 80s, but its scale was limited. In the domestic market, the first leasing operations began in 1989. Until the mid-90s, leasing did not have a serious impact on the Russian economy. After the modernization of tax legislation and the adoption of the federal law “On Financial Lease (Leasing)” in 1998, business interest in this instrument increased significantly. At the end of 2017, the volume of the leasing market in the Russian Federation was estimated by specialists of the rating agency RAEX (Expert RA) at a trillion rubles.
Parties to the leasing transaction
Typically there are three parties involved in the leasing process:
1 Seller– a legal entity or individual entrepreneur (necessarily a VAT payer) that owns or sells the necessary equipment. The property is transferred to the lessor on the basis of a purchase and sale agreement.
2 Lessor– its role is played by a leasing company, which can be registered both as a legal entity and as an individual entrepreneur. Most often, banks or structures with them that have sufficient capital to purchase expensive property (vehicles, real estate, equipment) act as a lessor.
3 Lessee- this is a buyer, also either a legal entity in any organizational and legal form, or an individual entrepreneur who needs equipment, transport or real estate of the seller for use in commercial activities and obtaining.
Sometimes the seller is also the lessor, then there are two parties involved in the transaction, not three.
What is the economic meaning of leasing?
Each party to a leasing transaction has its own reasons for participating in it.
- The seller sells his goods and receives the full value of the property and no risks;
- The lessor benefits from an increase in the value of the property included in the lease payment.;
- The lessee purchases the property on more favorable (interest rate/down payment) or more favorable (solvency requirements) conditions compared to a bank loan. He has the right to refuse the purchase if the circumstances of his business have changed. In addition, the buyer saves on tax payments (VAT, income tax, property and transport taxes, if vehicles are purchased).
A feature of a leasing transaction is a reduction in the redemption price of the property by the end of the contract. This happens due to depreciation– annual write-off of part of the value of an asset as it wears out. Depreciation is taken into account using special formulas and does not depend on the actual wear and tear of the product. In leasing transactions for certain types of property, accelerated depreciation is applied, due to which, by the end of the contract, transport or equipment have zero value and become the property of the lessee without additional payment.
According to the federal law “On financial lease (leasing)” (No. 164-FZ dated October 29, 1998 with subsequent amendments), movable and immovable property can be leased: vehicles, equipment, real estate, enterprises as economic complexes.
The subject of leasing cannot be natural objects, land plots and property with limited circulation. An exception in this sense is weapons - the Russian Federation has the right to sell them to other countries on lease under the conditions established in international treaties and the law on military-technical cooperation.
There are other leasing restrictions set by the lessors themselves. In particular, buyers who wish to lease the following are refused:
Labor leasing relations in Russia are regulated by federal law dated May 5, 2014 No. 116-FZ. It outlines the following rules:
- Personnel leasing can only be carried out by private recruitment agencies operating on the basic tax system and accredited by the state employment service.
- Contracts for the employment of an employee with a lessee cannot be concluded for longer than 9 months.
- All employee transfers can only be carried out with his written consent.
- The salary of a “leasing” employee for the same work cannot be lower than that of the lessee’s full-time employees.
- The leasing company is obliged to pay all necessary compensation for occupational hazards - the same ones that are paid to the main employees of the lessee.
The law establishes certain restrictions for “rental” labor. You cannot engage leasing personnel:
- To perform work of I and II hazard classes or 3 and 4 degrees of harm;
- To perform the work of a freight forwarder or other employees on shipping transport;
- To perform work at enterprises that are in bankruptcy;
- To replace striking workers
- To work in conditions of threat of dismissal of key employees
What types of leasing are there?
In a leasing transaction, a lot depends on the terms of the contract. Depending on them, three types of leasing can be distinguished:
1 Financial
With this option, the lessor is, in fact, only a financial intermediary, formally participating in the transaction. The property is delivered directly from the seller to the lessee; the latter makes claims regarding the quality of this property to the seller. By the end of the lease agreement, the property, as a rule, has a minimum residual value.
In such a scheme, the leasing agreement often stipulates the seller’s obligation to accept the property if the buyer returns it to the lessor. The bank does not need old cars or machines, to put it simply. VTB24, Avangard Bank, Promsvyazkapital group and others have their own leasing subsidiaries.
2 Operating
With this leasing option, the contract term is significantly shorter than the service life of the acquired property (real estate, industrial complex, etc.). In this regard, the role of the leasing company in the transaction is key. The lessor assumes full responsibility for the safety of the leased property, organizing repairs, insurance and maintenance.
The role of the lessee in this scheme is close to the role of the tenant. When the contract ends, the buyer has the right:
- Buy the property at its residual value (in this case, this value is quite high due to the long depreciation period);
- Return the property to the leasing company;
- leasing agreement, if the lessor does not object to this;
- Exchange property for another (for example, production equipment for more modern or different characteristics).
The operational type of leasing is often used by dealers of large automakers: the buyer uses a car of a certain brand for 2-3 years, and then rents out and leases again a more modern model.
3 Returnable
The most specific type of leasing. Here the seller and the lessee are one person. In fact, the transaction is a form of secured lending, when the property is transferred to the lessor only formally, while actually remaining in its place. An enterprise can sell the equipment it owns and then lease it, receiving a large sum of money for development and maintaining production capacity.
However, these types of transactions are also the most corruption-intensive.
A fresh example from the Vologda region
A leasing transaction for the sale of a large cinema center took place here. The seller was an LLC, let's call it Alpha. This company owned the cinema center for over 10 years. but the business did not take off, the debts grew, and the founders of Alpha turned to the regional business support center with a request for state support - the object is socially significant, the building has historical value. Support in the amount of 10 million rubles was provided with the condition that it would be used to develop the film business in the region.
Immediately, Alpha LLC entered into a leasing deal, selling to the lessor (let it be Beta LLC, one of the founders of which was the same regional business support center that provided support to Alpha) property for film exhibition in the amount of 24 million rubles. The lessor transferred this property to the buyer - Gamma LLC, having concluded an agreement for 34 million rubles with the payment of 10 million as a down payment. Nothing unusual, if you do not pay attention to the fact that the founders of Gamma were the same people as Alpha, and the difference between the sale and purchase price exactly repeated the amount of state support provided to film entrepreneurs in the region.
The regional government eventually came to its senses and demanded the money paid as state support back. This led to the bankruptcy of Gamma LLC (the debt written off due to the impossibility of collection amounted to 10.07 million rubles), the cessation of the activities of Beta LLC, internal proceedings in the regional government and heated discussions about whether government agencies should even participate in repayments. leasing transactions.
Leasebacks constantly attract the attention of tax authorities: a transaction in which there is no clear economic feasibility can be recognized as a form of tax evasion.
Signs of a fictitious leaseback transaction:
- The seller and the buyer are related to each other (for example, one is a legal entity dependent on the second). In this case, the Federal Tax Service may refuse to pay a VAT refund.
- Payment for the leaseback transaction in one of its parts was carried out by checks, bills and other non-cash methods. This may indicate an attempt to withdraw funds by the seller or buyer.
- At least one of the participants has already been caught in unscrupulous leasing schemes.
Leasing transactions by risk level
Like any other transaction for the transfer of property, leasing has its risks - some of them have already been described above. Based on the degree of risk, there are three types of leasing transactions:
1 Guaranteed
The process of transfer of property is insured by specialized insurance companies or several other companies act as guarantors of the lessee, capable of fully compensating the lessor for the cost of the property in case of violation of the contract.
2 Partially secured
The security deposit, paid by the lessee to the leasing company's account, covers part of the cost of the property. If nothing not specified in the contract happens during the entire leasing period, the funds will be returned to the buyer.
3 Unsecured
Transactions in which the parties do not guarantee each other the fulfillment of their obligations. Nowadays, such relationships between leasing entities are becoming less and less common; the lack of insurance usually “hints” at a dubious or fictitious transaction.
All stages of the leasing transaction
There are usually five stages of selling property on lease. Let's look at each of them.
Stage 1. Analysis of the leasing market, selection of a leasing company.
The leasing market in the Russian Federation is almost identical to the size of the first hundred of the banking sector. You can choose a leasing company based on the conditions offered and the reliability of the parent company. The rating of lessors is maintained, for example, on the portal banki.ru/products/leasing/companies/.
Stage 2. Analysis of the conditions offered by the lessor.
The most important points: initial payment (advance payment), monthly payment, amount of overpayment, term and repayment schedule, conditions for terminating the leasing agreement.
Stage 3. Drawing up a leasing agreement.
To draw up the text of the contract, the lessor usually requires the following documents:
- statement of intention to lease property indicating the parameters;
- financial statements for the last reporting period;
- an account statement of an enterprise or individual entrepreneur (to assess the turnover of a company or entrepreneur);
- copy of the passport of the manager/individual entrepreneur, order of appointment/certificate of registration;
- insurance policy for the leased object.
The leasing company may also require other documents.
Stage 4. Making an advance (down payment).
The down payment amount usually starts from 5% (these are the conditions for most companies involved in operational leasing of vehicles). On average, the advance in the market is 20-30%. After paying the required amount, the buyer receives the property for use.
Stage 5. Use of property during the term of the contract.
The leased property must be used in strict accordance with the terms of the contract. This applies to annual insurance, maintenance (vehicle, equipment) and, of course, timely payment of monthly payments.
Leasing payment options
Regular payments under leasing agreements can have one of three types of schedule:
1 Regressive – the first payments are the largest, then decrease. An analogue of differentiated payments on loans. This scheme allows you to minimize interest payments.
2 Annuity – payments in equal installments. The most “expensive” schedule, because the first payments go almost entirely to repay the lessor’s interest/margin.
3 Seasonal - a schedule adapted to certain types of business (for example, agriculture, where the main profits occur in autumn and winter - during these periods payments increase compared to average, in other seasons they decrease).
Other special payment schedules may also be used, depending on the specifics of the activities of specific companies.
What is more profitable: credit or leasing?
In each specific case, the answer to this question may be different. It depends on both the type of leasing and the property, the conditions of the lessor and the creditor bank and many other aspects. Let’s not forget that leasing is used primarily for business purposes, and lending conditions for legal entities and individual entrepreneurs differ significantly from those for “physicists.”
First, let's look at the comparison based on external features. Let's say we decide to buy a car worth 1 million rubles. Let’s compare the average parameters of the lending and leasing program at the beginning of 2018.
It seems that it is obviously more profitable to take out a loan. However, let's not forget that the interest rate and the amount of overpayment are not always the main factors when choosing a method of acquiring property.
If you put together all the characteristics by which leasing and lending can be correctly compared, you will get something like this table:
| Options | Leasing | Lending |
| Subject | Legal entities and individual entrepreneurs. | Any individual (including individual entrepreneurs) and legal entities |
| Right to property after the transaction | The object remains the property of the lessor until full payment of its cost by the buyer | The property becomes the property of the client, remaining pledged to the bank |
| Terms of service | The history of previous leasing transactions and credit history does not matter (except for attempts at fraud) | A positive credit history is required |
| Payments under the agreement |
|
|
| Depreciation of property | For some types of property, it is possible to use accelerated depreciation For cars over 300,000 rubles and minibuses over 400,000 rubles, a decreasing depreciation coefficient is applied. | The usual procedure for calculating depreciation |
| Tax payments | ||
| VAT | Included in payments under the leasing agreement. The tax can be claimed for refund after the property is redeemed. | Not taxed |
| Property tax | If the property is on the balance sheet of the lessor, the buyer does not pay tax. If the property is on the buyer's balance sheet, the tax is reduced due to accelerated depreciation. | Property purchased on credit immediately becomes the property of the buyer and is subject to full tax. |
There are also differences in the purpose of leasing and credit for business purposes. In general they can be expressed as follows:
- Loan funds can be used by an entrepreneur for any purpose, while leasing funds can be used primarily for business development and renewal of fixed assets.
- In the case of a loan, the bank has to control the intended use of the loan. In leasing, control is not required since the property belongs to the lessor.
- When lending to a business, the bank requires guarantees in the form of collateral of property the client already has (which may not exist), as well as insurance. In the case of leasing, the purchased property itself acts as collateral.
- Property purchased with loan funds immediately goes to the balance sheet of the company that took out the loan. After acquiring property under lease, it can either be on the balance sheet of the lessor or go to the balance sheet of the lessee, depending on the terms of the agreement.
- Property purchased with borrowed funds is displayed on the borrower's balance sheet and limits the possibilities for further lending. Leasing property most often passes through the balance sheet of the leasing company, allowing the lessee to easily take out loans.
- Stopping loan payments may also lead to the sale of assets to pay off the debt. Termination of leasing payments only leads to the seizure of the leased property.
From a formal point of view, leasing is similar to renting. In both cases, there is an owner of the property and a person who would like to take possession of this property, but does not immediately have the entire amount to purchase. The owner, in turn, is ready to rent out the property for use at a certain markup.
But along with the similarities between renting and leasing, there are also significant differences.
| Options | Rent | Leasing |
| Formal parameters | ||
| Legislative basis | Civil Code of the Russian Federation, Art. 34 Federal laws on certain types of rentals. | Federal Law “On Financial Lease (Leasing)” |
| Deadlines | Most often short terms with the possibility of extension. | In a significant part of leasing transactions, the contract term is equal to or close to the full depreciation period of the transferred property. |
| Item | Any non-consumable property that is not limited in circulation. | Non-consumable property that is not limited in circulation and is not a natural object (for example, a land plot).. |
| Possibility of purchasing the property at the end of the contract | No | There is |
| Right to property | use | |
| Who chooses the property provided? | Landlord | Lessee |
| Package of documents | Confirmation of solvency is not required | Documents confirming the existence of the business and solvency |
| Business scheme | ||
| Transaction participants | Landlord, tenant | Seller, lessor, lessee. Banks, insurance companies, guarantor firms, etc. may also participate. |
| Status of seller (manufacturer) of property | Not involved in the deal | The participant in the transaction enters into an agreement with the lessor. |
| Responsibility for compliance of property with stated requirements | Landlord bears | It is borne by the lessee, with the exception of the situation when the lessor offers the property for leasing, and he is also looking for a seller. |
| Risk of accidental loss/damage to property | Landlord bears | Bears the lessee |
| Property insurance subject | Landlord | Most often the lessee |
Leasing and taxes
Income tax
For the lessee, leasing payments are considered other expenses (Article 264, clause 1 of the Tax Code of the Russian Federation). Accordingly, the higher the payment, the less income tax you have to pay. This, according to the legislator, stimulates the development of enterprises and the renewal of fixed assets.
When concluding a leasing agreement, there are two options:
1 If the property is left on the balance sheet of the lessor
In this case, the lessee includes the entire amount of the lease payment as expenses.
For example, if a leasing agreement is concluded for 24 months, and the total amount of payments excluding VAT is 300,000 rubles, then the monthly amount included by the buyer in his expenses will be: 300,000 rubles / 24 months = 12,500 rubles.
2 If the property is placed on the balance sheet of the lessee
The property must be included in one or another depreciation group at the cost of the lessor's costs for the purchase of the leased asset and its pre-sale servicing. Depreciation is calculated depending on the group - the multiplying factor for some types of property can reach 3 (depreciation occurs 3 times faster than usual).
The lessee may include the lease payment minus the amount of depreciation of the property as expenses.
Let's take the same example with property leased for 300,000 rubles, and a monthly payment of 12,500 rubles, and the cost of purchasing the leased item (let it be a computer-controlled machine belonging to the 5th depreciation group) was 200,000 rubles. The minimum period of use of property of the 5th group is 85 months. 200,000 rub. / 85 months * coefficient 3 = 7058 RUR.
This amount will be included in expenses to determine the income tax base as the cost of depreciation. Plus, the costs will take into account part of the leasing payment in the amount of 12,500 – 7,058 = 5,442 rubles. As a result, the deduction will still be the same 12,500 rubles, but if it is not completed correctly, income tax will have to be paid without any deductions.
Value added tax
Under leasing agreements, you can receive a VAT refund from the state (Articles 171, 172 of the Tax Code of the Russian Federation). This will happen if you meet the following conditions:
- The leased property is acquired by the lessee for activities subject to VAT.
- The lessor can confirm that he actually provided the lessee with the property (copies of contracts, other documents at the request of the Federal Tax Service).
- The lessee can confirm that he has reflected the leasing transaction in his accounting.
- There is an invoice for the lease payment provided by the lessor to the buyer.
Property tax
If the property remains on the balance sheet of the lessor, the lessee does not pay tax. When registering property on the balance sheet of the lessee, it is possible to reduce property tax due to accelerated depreciation. During the period of validity of the leasing agreement, tax on movable property is not charged, regardless of whose balance sheet it is on.
Transport tax
Everything is simple here: this tax is paid by the party that registered the leased vehicle with the State Traffic Safety Inspectorate or Gostekhnadzor, regardless of whose balance sheet the property is on during the period of validity of the leasing agreement.
Frequently asked questions about leasing
Is it possible to close a leasing transaction early?
Most companies provide for early repurchase of the leased asset (this clause must be included in the contract). However, for the lessee this is not the most profitable option: with early payment of the residual value, the repurchase amount is higher and the tax preferences are lower. In addition, a quick buyout leads to increased attention to the transaction from the tax authorities: the Federal Tax Service may cancel the leasing agreement and recognize it as a commodity loan agreement. Then there will be no tax deductions at all.
In what cases does property purchased under lease need to be registered with government agencies?
According to the legislation of the Russian Federation, it is necessary to register the following property and the right to it:
- transport (aviation, sea, road)
- high-risk equipment
In each of these cases, the leased asset is registered by agreement between the lessor and the lessee in the name of one of them. If the leasing agreement is terminated due to the lessee's failure to pay regular payments, the registration authorities will cancel the record of the user of the property.
We are a government agency. Can we lease property?
Yes, state and municipal institutions have the right to act as a lessee. However, for them, the leasing law (Article 9.1) establishes a number of features:
- The lessor independently determines the seller and is responsible for the timely delivery of the property.
- Payments are made only in cash, barter is not allowed.
- Only leased property can be used as collateral.
The lessor delays the delivery of equipment, citing problems with the supplier. He refuses to compensate for lost time, citing the fact that we were looking for a supplier ourselves. Is this legal?
The legislation (Article 34 of the Civil Code of the Russian Federation and Article 22 of the Federal Law “On Financial Lease (Leasing)”) directly indicates that the risk of the supplier’s failure to fulfill its obligations under the leasing agreement rests with the party that selected the supplier. Most often, the lessee plays this role. The same applies to the non-compliance of the property with the objectives of the project. If you select equipment and it turns out to be unsuitable, you will be responsible for the costs. If a leasing company was looking for a supplier or equipment, it will pay the costs.
What is subleasing?
This term refers to the transfer of the right to use leased property to third parties. Let's say equipment was leased to implement a project. It was completed ahead of schedule. Closing the contract early means incurring losses in terms of tax compensation. A decision is made to sublease the equipment. The former lessee becomes the lessor. In this case, permission to the transaction is required from the original lessor. The new lessee has the same tax preferences as the main lessee. If the main leasing agreement is violated (regular payments are not made), the subleasing agreement is also invalid.
We often hear about fictitious leasing. What is it?
Most often, fictitious leasing is a cover for an installment purchase and sale transaction. Issued in order to receive tax benefits. Since many regions have programs to stimulate economic development, leasing operations there are subsidized by government funds. This also opens up wide scope for fictitious transactions.
In St. Petersburg and the Tyumen region, at the end of 2017, trials were held in high-profile cases of theft under fictitious leasing agreements: in the first case, 18 million rubles went into the pockets of fraudsters, in the second - over 50 million. The scheme was the same: the authorities received a fake leasing agreement (in fact, no property initially existed or was transferred), according to which the attackers received compensation for the down payment or interest rate provided for by regional programs. In the northern capital, an employee of the business support center participated in the scheme, turning a blind eye to the obvious fictitiousness of the contract.
Conclusion
So, leasing is one of the most convenient financial instruments that allows a company to update fixed assets or purchase equipment to develop new business areas. Its main advantage is that to implement his plans, an entrepreneur does not need to invest large amounts of his own money and jeopardize the financial stability of the company.
The state provides a number of benefits and tax preferences for companies that use leasing schemes for their development. Some particularly enterprising individuals are trying to benefit from this by using fictitious leasing, but for such things you can get a conviction under the article “Fraud” of the Criminal Code of the Russian Federation.
It must be taken into account that leasing cannot replace a loan in every case: the decision must be preceded by a careful calculation of upcoming expenses and taking into account the accompanying circumstances. However, the prevalence of leasing in the Russian Federation suggests that very often it is the best option for expanding your business.
Video for dessert: 42-year-old extreme sportsman accelerated to 167 km/h on a bicycle
UDC 347.453 BBK 67
RIGHTS AND OBLIGATIONS OF THE LESSON AND THE LEASEE
DMITRY ANATOLIEVICH IVANOV,
applicant for the Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikotya E-mail: [email protected] Scientific specialty 12.00.03 - civil law;
business law; family law;
private international law
Citation index in the NIION electronic library
Annotation. Considers the rights and obligations of the lessor and lessee from the point of view of the Civil Code of the Russian Federation and the Federal Law “On Financial Lease (Leasing)”.
Key words: leasing, lessor, lessee, rights and obligations of the lessor, rights and obligations of the lessee.
Annotation. In the article, the author examines the rights and obligations of the lessor and the lessee in terms of the Civil Code of the Russian Federation and the Federal law on financial lease (leasing).
Keywords: leasing, the lessor, the lessee, the rights and obligations of the lessor, the lessee's rights and responsibilities.
An analysis of the norms of the Civil Code of the Russian Federation and the Federal Law “On Financial Lease (Leasing)” dated October 29, 1998 No. 164-FZ (as amended on December 31, 2014) allows us to determine the range of rights and obligations of the lessor and lessee.
The lessor is obliged:
To acquire ownership of certain property from a certain seller for its transfer for a certain fee for a certain period, under certain conditions, as a leased item to the lessee;
Provide the lessee with the property that is the subject of leasing in a condition corresponding to the terms of the leasing agreement and the purpose of this property (together with all its accessories and all documents, technical passport, etc.), unless otherwise provided by the leasing agreement;
Fulfill other obligations arising from the contents of the leasing agreement.
The lessor has the right:
1. In the field of inspection and financial control:
Monitor the lessee’s compliance with the terms of the leasing agreement and other related agreements (the goals and procedure for control are determined by these agreements);
Exercise financial control over the activities of the lessee in that part that relates to the subject of leasing, the formation of financial results of the activity
ity and fulfillment by the lessee of obligations under the leasing agreement;
Send written requests to the lessee to provide information necessary to carry out financial control.
2. In the area of recovery from the lessee:
Require payments for the period of delay if the lessee did not return the leased item or returned it untimely.
If the specified fee does not cover the losses caused to the lessor, he may demand compensation. If a penalty is provided for the untimely return of the leased asset to the lessor, losses may be recovered from the lessee in the full amount in excess of the penalty, unless otherwise provided by the leasing agreement;
Indisputably write off such payments from the lessee's account by sending to the bank or other credit institution in which the lessee's account is opened, an order to write off funds from his account within the limits of the amounts of overdue lease payments in the event that the lessee fails to transfer lease payments more than two times in a row. expiration of the payment period established by the leasing agreement.
Undisputed write-off of funds does not deprive
the lessee has no right to go to court;
Remove the leased asset from the possession and use of the lessee in cases and in the manner provided for by the legislation of the Russian Federation and the leasing agreement.
The leasing agreement may stipulate circumstances that the parties consider an indisputable and obvious violation of obligations and which lead to termination of the leasing agreement and seizure of the leased asset;
Require early termination of the leasing agreement and return of the property within a reasonable period of time by the lessee in cases provided for by the legislation of the Russian Federation, the Federal Law “On Financial Lease (Leasing)” by the leasing agreement.
In this case, all costs associated with the return of the property, including the costs of its dismantling, insurance and transportation, are borne by the lessee
3. The lessor has the right to use the leased asset, which will be acquired in the future under the terms of the leasing transaction, as collateral to raise funds.
The lessee is obliged:
Accept the leased asset for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement;
Pay leasing payments to the lessor in the manner and within the terms stipulated by the leasing agreement;
At your own expense, carry out maintenance of the leased asset and ensure its safety, as well as carry out major and current repairs of the leased asset, unless otherwise provided by the leasing agreement;
Provide the lessor with unimpeded access to financial documents and the leased asset;
Satisfy the lessor's requests to provide him with information necessary for financial control;
Upon expiration of the lease agreement, return the leased item (in the condition in which he received it, taking into account normal wear and tear or wear and tear stipulated by the leasing agreement), unless otherwise provided by the specified leasing agreement, or acquire ownership of the leased item on the basis of a purchase agreement. sales.
If the leased asset is not returned or returned untimely, the lessor has the right to demand payment for the period of delay (if this payment does not cover the losses caused to the lessor, he may demand compensation for them). If the contract provides for a penalty for untimely return of the leased asset to the lessor, losses may be recovered from
the lessee in the full amount in excess of the penalty. The loss of the leased asset or the loss of its functions by the leased asset due to the fault of the lessee does not relieve the lessee from obligations under the leasing agreement, unless otherwise provided by the leasing agreement;
Fulfill other obligations arising from the contents of the leasing agreement.
The lessee has the right:
Own and use the leased asset in full, unless otherwise provided by the agreement;
Submit directly to the seller of the leased item requirements for quality and completeness, deadlines for fulfilling the obligation to transfer the goods and other requirements established by the legislation of the Russian Federation and the purchase and sale agreement between the seller and the lessor;
Demand that the lessor fulfill his obligations under the leasing agreement, and if they fail to fulfill them, demand through the court compensation for direct losses from the preparation for acceptance of the leased asset (if preparation costs were incurred);
For compensation after termination of the leasing agreement for the cost of improvements to the leased object, inseparable without harm to this object, made at the expense of one’s own funds with the written consent of the lessor, unless otherwise provided by the leasing agreement.
If such improvements are made without the written consent of the lessor, and unless otherwise provided by federal law, the lessee has no right, after termination of the leasing agreement, to reimbursement for the cost of these improvements.
An important aspect of determining the legal status of the parties to a contract is the issues of liability and guarantees of ensuring rights.
Article 22 of the Federal Law “On Financial Lease (Leasing)” distributes risks between the parties to the leasing agreement as follows:
Responsibility for the safety of the leased asset from all types of property damage, as well as for the risks associated with its destruction, loss, damage, theft, premature breakdown, error made during its installation or operation, and other property risks from the moment of actual acceptance of the leased asset is borne by lessee;
The risk of failure by the seller to fulfill obligations under the contract for the sale and purchase of the leased asset and the associated losses is borne by the party to the leasing agreement that has chosen the seller;
The risk of non-compliance of the leased item with the purposes of using this item under the leasing agreement and the associated losses is borne by the party that chose the leased item.
Bulletin of Moscow University of the Ministry of Internal Affairs of Russia
Each of these conditions applies “unless otherwise provided in the leasing agreement.”
Thus, it is in the interests of the parties to allocate the parties' risks in each specific situation.
We emphasize that the leasing agreement may stipulate circumstances that the parties consider an indisputable and obvious violation of obligations and which lead to the termination of the leasing agreement and the seizure of the leased asset.
It must be taken into account that the parties to the leasing agreement cannot change the mandatory requirements of the Law, and, for example, tighten the penalties.
The Law “On Financial Lease (Leasing)” provides for ensuring the rights of the lessor. If the lessee fails to transfer lease payments more than two times in a row after the expiration of the payment period established by the leasing agreement, they are written off from the lessee's account in an indisputable manner by sending the lessor to the bank or other credit institution in which the lessee's account is opened, an order to write off funds from his account within the limits of the amounts of overdue lease payments.
Let us emphasize once again that the undisputed write-off of funds does not deprive the lessee of the right to go to court.
All other amounts (except for amounts of overdue lease payments) are not included in the order for undisputed write-off. To satisfy such demands (including the payment of interest for the illegal use of someone else's money), the lessor must file a corresponding claim in court.
In accordance with paragraph 2 of Art. 13 of the Law “On Financial Lease (Leasing)”, the lessor has the right to demand early termination of the leasing agreement and the return of the property within a reasonable time by the lessee in cases provided for by the leasing agreement.
Article 619 of the Civil Code of the Russian Federation, which regulates general provisions on leases, including financial leases, states that “at the request of the lessor, the lease agreement may be terminated early by the court in cases where the lessee:
Uses the property with a significant violation of the terms of the contract or the purpose of the property or with repeated violations;
Significantly degrades property;
fails to pay rent more than two times in a row after the expiration of the payment period established by the contract;
Fails to carry out major repairs of the property within the time period established by the lease agreement, and in the absence of them in the agreement, within a reasonable time period in cases where, in accordance with the law, other legal acts or the agreement, major repairs are the responsibility of the tenant.”
Along with this, paragraph 2 of Art. 450 of the Civil Code of the Russian Federation, as a rule of a more general nature, provides for the possibility of changing or terminating a contract by a court decision at the request of one party:
If there is a material breach of the contract by the other party;
In other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.
In this case, a violation of the contract by one of the parties is considered significant, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract. In the event of termination of the contract due to the above circumstances, all costs associated with the return of the property, including the costs of its dismantling, insurance and transportation, are borne by the lessee.
In practice, the lessor quite often transfers the leased asset earlier than stipulated by the terms of the leasing agreement. Let’s say a preliminary agreement is concluded between the parties, then a leasing agreement and a custody agreement. Thus, the tenant receives the leased item earlier than he can begin to use it in his business activities. If the lessee does not return the leased item or returns it untimely, the lessor has the right to demand payment for the period of delay. When the specified payment does not cover the losses caused to the lessor, he may demand compensation. If a penalty is provided for the untimely return of the leased asset to the lessor, losses may be recovered from the lessee in the full amount in excess of the penalty, unless otherwise provided by the leasing agreement.
Literature
1. Federal Law “On Financial Lease (Leasing)” dated October 29, 1998 No. 164-FZ (as amended on December 31, 2014) // SPS “Consultant Plus”
2. Vitryansky V.V. Lease agreement and its types: rental, temporary charter, rental of buildings, structures and enterprises, leasing. M.: Statute, 1999.
2. Gazman V.D. Leasing: theory, practice, comments. M., 2007.
3. Civil law: In 2 volumes / Ed. E.A. Sukhanov. M., 2008.
5. Gromov S.A. Subject of leasing in civil circulation // Objects of civil circulation: Sat. Art. / Rep. ed. M.A. Rozhkova. M.: Statute. 2007.
6. Ivasenko A. Leasing: economic essence and development prospects. Novosibirsk: NGAEiU, 2006.
7. Kabatova E.V. New forms of transfer of machinery and equipment for temporary use (leasing) in the civil law of bourgeois states: Diss. ...cand. legal Sci. M., 1981.
9. Pavlodsky E.A. Leasing as a tool of market relations: ways of improvement // Journal of Ros. rights. 2006. No. 10.
10. Reshetnik I.A. Civil regulation of leasing in the Russian Federation: Author's abstract. diss. ...cand. legal Sci. Perm, 1998.
Lessor– one of the subjects of the leasing transaction, which purchases the necessary equipment (equipment, real estate) from the supplier and transfers it for temporary operation (rent) to the lessee. In this case, it is drawn up under certain conditions that are stipulated in the leasing agreement.
Lessor– is an individual or legal entity. In the first case, the participant in the leasing transaction can be an individual entrepreneur (individual) with the appropriate state registration in hand. In the second case - credit institutions or banks whose charter makes it possible to carry out leasing activities. In addition, this category of legal entities includes specialized or organizations whose constituent documents allow them to deal with leasing issues.
Role and responsibility of the lessor
Lessor– this is one of the connecting links between the selling company (supplier) and the leasing recipient (tenant). At the same time, the algorithm for registering leasing and the participation of the lessor in it is as follows:
The leasing recipient finds a seller who has the necessary property;
The lessor purchases the goods needed by the client as personal property. In this case, the equipment is not purchased for personal use, but for subsequent lease to its client (the recipient of the lease);
The leasing company deals with the process of transferring the leased object based on the terms of the contract and for a fee;
Upon completion of the leasing transaction (depending on the terms of the agreement), the property is transferred to the leasing recipient (at the residual price) or returned to the leasing company.
For the entire period specified in the contract, the leased object is in the use of the lessee. In this case, the owner still remains the leasing company. If the leasing recipient fails to fulfill obligations in a timely manner or in full, and also delays payments, then the leasing company, based on the terms of the agreement, can take away the property from the leasing recipient. In the event that the leasing recipient goes bankrupt, the leasing company must receive the first payments.
If the lessor in one way or another interferes with the client’s choice of the supplier company or the object of the leasing transaction, then he bears full responsibility for the untimely delivery of equipment. In addition, the lessee is responsible for damage that may be caused to the life of the client or citizens during the period of use of the leased asset. But lately this point has been included less and less often, and all responsibility is shifted from the lessor’s shoulders directly to the user (lessee).
If we are talking about making a major transaction and purchasing a large batch of equipment, then the lessor has the right to attract investment funds, insurance companies, banking institutions, independent private investors, and so on as auxiliary investors.
Rights and obligations of the lessor
When drawing up an agreement, the lessor, as a party to the transaction, assumes certain rights and obligations. All of them are reflected in the contract and must be strictly observed by the party to the transaction.
Thus, the lessor undertakes the following obligations:
1. Buy from the product supplier (seller) a specific type of property, which for a certain fee and on fixed terms is transferred to the second party to the transaction - the tenant (lessee).
2. Notify the seller (supplier company) that the purchased property will be leased to a specific party to the transaction. This requirement is stated in Article 667 of the Civil Code of the Russian Federation. In this case, notification to the seller must be made exclusively in writing.
To implement such a requirement, the full details of the leasing recipient are specified in the goods purchase and sale agreement between the parties to the transaction. In addition, when drawing up an agreement with the seller, the document may contain links directly to the leasing agreement. In addition, the seller (supplying company) can be notified of the relevant purpose of the purchase by writing a letter. In this case, the seller can undertake to deliver the goods purchased by the lessor directly to the lessee.
3. Compensate the second party to the transaction (the leasing recipient) for everything for improvement, maintenance or repair of obvious defects of the leased asset (if such was provided for in the contract).
4. Accept back equipment transferred under a leasing agreement in the event of termination of the latter or expiration of its validity period.
5. Fulfill all other obligations that are specified in the agreement between the parties. These include:
Purchase of intellectual property rights (license rights, brands, software, trademark rights, etc.);
Purchase from a third party of equipment necessary for commissioning;
Carrying out repair and commissioning work at the lessee’s facility (if there is an agreement on this);
Personnel training;
Ensuring the repair of equipment transferred to the disposal and its timely post-warranty service.
The leasing company (lessor), as a rule, can undertake the most serious work, such as major repairs or routine operation;
Prepare the necessary area for the installation of the necessary equipment;
Provide assistance in the installation of transferred equipment, its installation, adjustment, and communications;
Other types of activities without which it is not possible to properly use the leased asset.
Along with the obligations, the lessor also has some rights. :
1. Invest funds to purchase an object to be leased. For these purposes, both personal and borrowed funds can be used.
2. Conduct inspections of the lessee to ensure that he is complying with the terms of use of the object of the leasing transaction, as well as the quality of the maintenance conditions.
3. Terminate the agreement and demand the return of the object of the leasing transaction if the conditions of the second party to the transaction are not fulfilled and on the basis of the conditions specified in the leasing agreement.
4. Refuse from the agreement in those cases provided for by the law of the Russian Federation or a documentary agreement of the parties.
5. Reclaim debts from the leaseholder indefinitely, based on a notarial signature.
6. Demand from the second party to the transaction (lessee) compensation for all material losses in cases discussed in the leasing agreement.
7. Require the lessee to immediately return the object of the leasing transaction or fulfill financial obligations in the event of failure to comply with the terms of the subleasing agreement, for example, an obvious delay in the agreement.
Costs and remuneration of the lessor
The leasing agreement, as a service, relates to investment activities. Consequently, the leasing recipient undertakes to compensate the leasing company for expenses in financial and material form, as well as to pay remuneration in full. In this case, the total amount of the leasing transaction consists of two components - payment of remuneration and compensation of investment costs. Each of the “components” has its own characteristics:
1. Investment costs – these are the expenses of the leasing company that are associated with the purchase and use of the object of the leasing transaction by the recipient of the lease.
“IZ” includes:
