I would like to ask you to clarify the following question: the replacement of the party in the lease agreement is expected. How can you safely arrange this replacement so that there are no questions from the outside tax authorities: interested in the correctness of the calculation of the redemption value and settlements between the original lessee and the new one.

Leasing agreement ( finance lease) is a separate type of lease agreement (Article 625 of the Civil Code of the Russian Federation). At the same time, the leased asset remains in the ownership of the lessor all the time until the completion of the lease agreement, regardless of whose balance sheet it is accounted for (clause 1 of article 11 of the Law of October 29, 1998, No. 164-FZ). That is why the lease agreement with the condition of property purchase is mixed. It contains elements of two transactions:

- an agreement on the provision for temporary use and possession of the lessor's property - rent;

- a condition on the transfer of ownership from the lessor, on the redemption of his property - purchase and sale.

Thus, the lessee has the right, with the consent of the lessor (lessor), to transfer his rights and obligations under the lease agreement to another person, that is, to transfer the property in lease (clause 2 of article 615 of the Civil Code of the Russian Federation). When re-leasing, the tenant is replaced in the obligations arising from the lease. Therefore, the re-lease must be carried out in compliance with the requirements for the assignment of the right of claim (if the lessee can demand certain amounts, for example, transferred in advance on account of lease payments) and the transfer of debt (if there are arrears on lease payments) (subparagraphs 1, 2 of Art. 391, p. . 1 article 389 of the Civil Code of the Russian Federation, letter of the Ministry of Finance of Russia dated July 14, 2009 No. 03-03-06 / 1/463).
The parties must also set a lease fee. For the purpose of calculating income tax, the payment for the acquisition of rights under the lease agreement is taken into account by the new lessee as part of other costs associated with production and sale, on the basis of sub. 49 p. 1 of art. 264 of the Tax Code of the Russian Federation. Specified consumption is recognized evenly during the remaining term of the lease agreement (paragraph 2, clause 1, subparagraph 3, clause 7 of article 272 of the Tax Code of the Russian Federation, Letter of the Ministry of Taxes and Duties of Russia for Moscow dated January 27, 2004 No. 26-12 / 5331).

The final redemption of property under the contract is carried out in in this case only by the new lessee. The former lessee does not carry out the redemption, but only draws up a re-lease.

Oleg Khoroshy, Head of the Division for Taxation of Profits of Organizations of the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia

How can a lessee reflect the return of leased property in accounting and taxation?

Situation: how to reflect in the lessee's accounting the transfer of obligations under the contract to another lessee. The leased item is on the balance sheet of the lessee. There are no lease payments owed to the lessor

The transfer of rights under a lease agreement is reflected in accounting in the same manner as the transfer of debt, but taking into account the specifics of the lease agreement.

A lease (finance lease) agreement is a separate type of lease agreement (). The lessee has the right, with the consent of the lessor, to transfer his rights and obligations under the lease agreement to another person, that is, to transfer the property in lease (clause 2 of article 615 of the Civil Code of the Russian Federation). When re-leasing, the tenant is replaced in the obligations arising from the lease. Therefore, the reassignment must be carried out in compliance with the requirements for the assignment of the right of claim and the transfer of debt (subparagraph, article 391, paragraph 1 of article 389 of the Civil Code of the Russian Federation, letter of the Ministry of Finance of Russia dated July 14, 2009 No. 03-03-06 / 1/463 ).

In the accounting of the lessee, the transfer of the leased asset under the debt transfer agreement should be reflected in the following entries:

Debit 76 subaccount "The cost of the leased asset" Credit 76 subaccount "Settlements on loan"
- the amount of obligations under the lease agreement transferred to the new lessee is reflected;

Debit 02 subaccount "Depreciation of property received on lease" Credit 01 subaccount "Fixed assets received on lease"
- the amount of accumulated depreciation of the leased asset has been written off;

Debit 76 subaccount "Settlements on lease" Credit 01 subaccount "Fixed assets received on lease"
- the residual value of the leased asset has been written off.

The described procedure corresponds to the provisions of the current Chart of Accounts (Instructions to the Chart of Accounts - accounts,,).

Situation: how can a new lessee reflect operations under a lease agreement in accounting if the property was received from the former lessee as a result of a change of persons in the obligation (we transfer). Under the agreement, the leased asset is recorded on the balance sheet of the lessee

The new lessee shall reflect the operations under the lease agreement in the accounting in the general manner.

Only the value of the property received from the previous lessee must be determined in a special way. So, you need to take into account the leased asset according to residual value, which was formed by the former lessee at the time of the transfer of the object. For more information about the formation of the cost of leased property, see How to a lessee to reflect the receipt of leased property in accounting and taxation.

Since, according to the terms of the agreement, the leased item is on the balance sheet of the lessee, make the entries in the accounting:

Debit 08 subaccount "Property received on lease" Credit 76 subaccount "The cost of the leased asset"
- the value of the property received on the balance sheet is reflected;

Debit 01 subaccount "Fixed assets received on lease" Credit 08 subaccount "Property received on lease"
- leased equipment was put into operation.

Term useful use determine based on the period during which you intend to use the object. But at the same time, it is necessary to take into account the data of the first lessee (clause 20 PBU 6/01). You can take them from the deed of transfer of property.

Let us clarify that the lessee can transfer his rights and obligations under the lease agreement to another person, that is, transfer the property in lease (clause 2 of article 615 of the Civil Code of the Russian Federation). After that, the lease continues to operate. It's just that now all the rights and obligations to the lessor are borne by the legal successor - the new lessee.

The reflection of the operation for the return of the leased property in the accounting of the lessee depends on whose balance sheet it is listed on:

This follows from Section III instructions approved by order of the Ministry of Finance of Russia dated February 17, 1997 No. 15. This document can be used in the part that does not contradict later regulatory legal acts on accounting (letter of the Ministry of Finance of Russia dated July 3, 2007 No. 07-05-06 / 180 ).

Property on the lessor's balance sheet

In accounting, the leased property that remains on the lessor's balance sheet is accounted for off the balance sheet on account 001 "Leased Fixed Assets".

Execute the operation to return the leased property with the following entry:

Credit 001
- debited from off-balance sheet property received on lease in connection with its return to the lessor.

This is stated in paragraph 1 of clause 10 of the instructions approved by order of the Ministry of Finance of Russia dated February 17, 1997 No. 15.

An example of the reflection in the accounting of the lessee of the return of the leased asset. The property is recorded on the lessor's balance sheet

Due to the expiration of the contract, LLC "Production Company" Master "returns to the lessor the leased equipment.

The leased item was received in January 2010 for a period of 5 years (60 months). Property value - 967,000 rubles. (including VAT - 147,508 rubles). The total amount of lease payments for the entire leasing period is 1,300,000 rubles. (including VAT - 198,305 rubles) The lessee made payments according to the schedule on a monthly basis in equal installments of 21,667 rubles. (1,300,000 rubles: 60 months), including VAT in the amount of 3305 rubles. (198 305 rubles: 60 months).

According to the terms of the agreement, the leased equipment is on the balance sheet of the lessor.

In January 2010, the lessee made the following entries in accounting:

Debit 001
- 819 492 rubles. (967,000 rubles - 147,508 rubles) - reflects the cost of the leased asset specified in the agreement in the amount of the cost of acquiring the property by the lessor;

Debit 20 Credit 60
- 18 362 rubles. (RUB 21,667 - RUB 3305) - accrued lease payment for January;

Debit 19 Credit 60
- 3305 rubles. - input VAT on leasing services for January is taken into account;

- 3305 rubles. - presented for deduction of input VAT on leasing services for January;

Debit 60 Credit 51
- 21 667 rubles. - the lease payment for January has been transferred.

Monthly from February 2010 to December 2014:

Debit 20 Credit 60
- 18 362 rubles. (RUB 21,667 - RUB 3305) - lease payment for the corresponding month has been charged;

Debit 19 Credit 60
- 3305 rubles. - the input VAT on leasing services for the corresponding month has been taken into account;

Debit 68 subaccount "Calculations for VAT" Credit 19

Debit 60 Credit 51
- 21 667 rubles. - the lease payment for the month has been transferred.

In December 2014:

Credit 001
- 819 492 rubles. - the property received under the lease agreement was written off.

Property on the balance sheet of the lessee

The leased property, which, according to the agreement, is transferred to the balance sheet of the lessee, is accounted for by him as a fixed asset.

During the term of the agreement, the lessee on the leased asset recorded on his balance sheet had to accrue depreciation. For more information on how depreciation is charged, see How to a lessee to reflect lease payments in accounting .

The procedure for recording the operation to return leased property to the lessor's balance sheet contains clause 10 of the instructions approved by order of the Ministry of Finance of Russia dated February 17, 1997 No. 15. However, it can be used only in the part that does not contradict the current Chart of Accounts and Instructions for its use.

When returning the leased asset, the lessee writes off its residual value from accounting (clause 29 of PBU 6/01). At the same time, the lessee must reflect the termination of the remaining obligations to the lessor, accrued at the time of receipt of the property. During the term of the agreement, these liabilities were settled at the moment of depreciation.

To account for the disposal of the leased asset, it is permissible to open a separate subaccount "Disposal of fixed assets received on lease" to account 01. This procedure follows from the Instructions to the chart of accounts (account 01).

From the month following the month of the return of the leased asset, stop depreciation (clause 22 PBU 6/01).

Situation: how to reflect the return of property to the lessor in accounting? Under the agreement, the leased asset was on the balance sheet of the lessee.

Record the return of leased property without using financial performance accounts.

This is due to the fact that when the leased asset is returned, the sale does not take place. Therefore, income and expenses associated with the disposal of this property are not generated in the lessee's accounting records (clause 2 of PBU 9/99, clause 2 of PBU 10/99).

However, in regulations accounting, this procedure is not directly fixed. In addition, according to clause 10 of the instructions approved by order of the Ministry of Finance of Russia dated February 17, 1997 No. 15, the canceled account 47 "Sale and other disposal of fixed assets" should be used to reflect the return of the leased asset. Therefore, in practice, organizations use various options for accounting for the return of the leased asset to the lessor's balance sheet. Including general procedure for disposal of fixed assets ... But in private explanations, the specialists of the Ministry of Finance of Russia indicate that it is not correct to reflect the return of leased property using financial performance accounts.

The operation to return the leased property to the lessor's balance sheet can be reflected as follows:

- amortization, accrued for the period of exploitation of the leased asset, has been repaid;

Debit 76 subaccount "The cost of the leased asset" Credit 01 subaccount "Fixed assets received on lease"
- property received on lease was written off from the register (at residual value).

The described procedure corresponds to the provisions of the current Chart of Accounts (Instructions to the Chart of Accounts - accounts 01, 02).

An example of the reflection in the accounting of the lessee of the return of the leased asset to the lessor. The property is recorded on the balance sheet of the lessee

LLC Production Company Master in January 2009 received under a lease agreement without the right to redeem production equipment for a period of 5 years (60 months). Under the terms of the agreement, the equipment is on the balance sheet of the lessee and must be returned to the lessor in January 2014. Property value - 967,000 rubles. (including VAT - 147,508 rubles). The total amount of lease payments under the agreement is 1,300,000 rubles. (including VAT - 198,305 rubles). The amount of the monthly paid lease payment according to the schedule - 21,667 rubles. (including VAT - 3305 rubles). The first payment is due in January 2009.

The accountant determined the useful life based on the term of the contract - 5 years (60 months). In accounting, the organization calculates depreciation on a straight-line basis.

In January, the following entries were made in the lessee's accounting:

- 819 492 rubles. (967,000 rubles - 147,508 rubles) - the value of the property received on the balance sheet is reflected;

- 819 492 rubles. - leased equipment was put into operation.

Monthly starting from January 2009 until the end of payments under the lease schedule in December 2013:

Debit 20 Credit 60 subaccount "Settlements for the use of the leased asset"
- 18 362 rubles. (RUB 21,667 - RUB 3305) - lease payment for the current month has been charged;

Debit 19 Credit 60 subaccount "Settlements for the use of the leased asset"
- 3305 rubles. - input VAT on the amount of the lease payment is taken into account;

Debit 68 subaccount "Calculations for VAT" Credit 19
- 3305 rubles. - presented for deduction of input VAT on leasing services;

Debit 60 subaccount "Settlements for the use of the leased asset" Credit 51
- 21 667 rubles. - the lease payment for the current month has been paid.

Monthly from February until the month of property return (January 2014):

- 13 658 rubles. (819,492 rubles: 60 months) - depreciation was charged for the current month in order to reduce the amount of liabilities at the value of the property received for temporary use.

When the property was returned (in January 2014), the following entries were made in the accounting:

Debit 76 subaccount "The cost of the leased asset" Credit 02 subaccount "Depreciation on property received on lease"
- 13 658 rubles. - depreciation was charged for the last month in which the property was recorded on the lessee's balance sheet.

Debit 02 subaccount "Depreciation of property received on lease" Credit 01 subaccount "Disposal of fixed assets"
- 819 492 rubles. (RUB 13,658 × 60 months) - depreciation accrued over the period of operation of the leased asset is reflected.

Situation: how to reflect in the lessee's accounting the transfer of obligations under the agreement to another lessee? The leased asset is on the balance sheet of the lessee. There are no lease payments owed to the lessor.

A leasing agreement (financial lease) is a separate type of lease agreement (Article 625 of the Civil Code of the Russian Federation). The lessee has the right, with the consent of the lessor, to transfer his rights and obligations under the lease agreement to another person, that is, to transfer the property in lease (clause 2 of article 615 of the Civil Code of the Russian Federation). When re-leasing, the tenant is replaced in the obligations arising from the lease. Therefore, the reassignment must be carried out in compliance with the requirements for the assignment of the right of claim and the transfer of debt (subparagraphs 1, 2 of article 391, paragraph 1 of article 389 of the Civil Code of the Russian Federation, letter of the Ministry of Finance of Russia dated July 14, 2009 No. 03-03-06 / 1 / 463).

In the accounting of the lessee, the transfer of the leased asset under the debt transfer agreement should be reflected in the following entries:

Debit 76 subaccount "The cost of the leased asset" Credit 76 subaccount "Settlements on loan"
- the amount of obligations under the lease agreement transferred to the new lessee is reflected;

Debit 02 subaccount "Depreciation of property received on lease" Credit 01 subaccount "Fixed assets received on lease"
- the amount of accumulated depreciation of the leased asset has been written off;

Debit 76 subaccount "Settlements on lease" Credit 01 subaccount "Fixed assets received on lease"
- the residual value of the leased asset has been written off.

The described procedure corresponds to the provisions of the current Chart of Accounts (Instructions to the Chart of Accounts - accounts 01, 02, 76).

Situation: How can a new lessee reflect in the accounting transactions under a lease agreement if the property was received from the former lessee as a result of a change of persons in the obligation (we reassign)? Under the agreement, the leased asset is recorded on the balance sheet of the lessee.

Operations under the lease agreement are reflected in the accounting records of the new lessee in general order.

Only the value of the property received from the previous lessee must be determined in a special way. So, the leased asset must be taken into account at the residual value that was formed by the former lessee at the time of the transfer of the object. For more details on the formation of the value of leased property, see. How can a lessee to reflect the receipt of leased property in accounting .

Since, according to the terms of the agreement, the leased item is on the balance sheet of the lessee, make the entries in the accounting:

Debit 08 subaccount "Property received on lease" Credit 76 subaccount "The cost of the leased asset"
- the value of the property received on the balance sheet is reflected;

Debit 01 subaccount "Fixed assets received on lease" Credit 08 subaccount "Property received on lease"
- leased equipment was put into operation.

Determine the useful life based on the period during which you intend to use the object. But at the same time, it is necessary to take into account the data of the first lessee (clause 20 PBU 6/01). You can take them from deed of transfer of property .

Let us clarify that the lessee can transfer his rights and obligations under the lease agreement to another person, that is, transfer the property in lease (clause 2 of article 615 of the Civil Code of the Russian Federation). After that, the lease continues to operate. It's just that now all the rights and obligations to the lessor are borne by the legal successor - the new lessee.

Expenses related to the return of leased property

The lease agreement may include a condition for the lessor to provide additional services(Clause 2, Article 7 of the Law of October 29, 1998, No. 164-FZ). The costs associated with the return of the leased property, which, according to the contract or the law, must be paid by the lessee (for example, transportation), reflect in the accounting by entries:

Debit 20 (23, 25, 26, 29, 44, 91-2 ...) Credit 76 (60, 70, 69 ...)
- reflects the costs associated with the return of the leased asset (depending on the nature of the use of the returned property - in the main activity, for management needs, etc.).

This follows from paragraphs 5, 7 and 11 of PBU 10/99.

It is not always possible for an enterprise to acquire its own fixed asset. One of the ways to solve this situation is to conclude a lease agreement.

There are two types of lease agreements:

1. Operating lease agreement;
2. Financial lease (leasing) agreement.

Advantages of using the leasing form of rent:

• Inclusion of related costs in income tax;
• Payment and subsequent refund of VAT;
• Balance sheet display of leasing costs, which does not worsen the balance sheet indicators.

Accounting for leasing transactions at the legislative level is regulated by order of the Ministry of Finance of the Russian Federation No. 15 of 17/02/1997. and PBU 6/01 for fixed assets accounting. The order in which they are displayed in accounting is determined by two factors:

1. Leasing object, which is recorded on the balance sheet of the lessee;
2. The object of lease, which is accounted for on the balance sheet of the lessor.

Accounting of the leased object, which is on the balance sheet of the lessee

If, according to the terms of the lease agreement, the property is accepted on the balance sheet of the lessee, then the lessee generates lease transactions taking into account the following points:

• Before taking into account the leased asset on the lessee's balance sheet, it is necessary to form the initial cost of the leased property. It usually consists of several elements, excluding VAT. For this, account 08 "Investments in fixed assets", Which upon acceptance of the leased object for accounting is closed on account 01" Fixed assets ".
• Depreciation is charged by the lessee, which he has the right to write off to the main production on account 20.

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Varieties of lease payments

The size, frequency and method of payment of lease payments are governed by the terms of the agreement.

There are three ways to calculate lease payments:

1. Fixed from the total amount. Leasing payments are charged monthly in equal amounts;
2. Less advance payment. The amount of lease payments is also calculated in equal installments, but only from the difference between the fixed total amount and the received advance.
3. By the amount minimum payments... This amount is prescribed in the contract and consists of: depreciation, payment for the use of the leased property, commission and others.

Typical transactions for displaying leasing transactions at the lessee

Change of lessors for lessors

In a lease obligation, replacement of the parties is allowed. The law provides for both the possibility of complete replacement of the lessor by a third party, and the possibility of the lessor assigning part of its claims to the lessee.

In this article, we will consider the civil legal basis of leasing, what conditions the parties must fulfill when changing the lessor, and whether the new lessor can apply accelerated depreciation on leased items.

Legal basis.

The legal relationship of the parties under financial lease (leasing) agreements is enshrined in Article 665 Civil Code Russian Federation(hereinafter referred to as the Civil Code of the Russian Federation), as well as in the Federal Law of October 29, 1998 No. 164-FZ "On Financial Lease (Leasing)" (hereinafter referred to as Law No. 164-FZ).

In accordance with Article 2 of the aforementioned Federal Law, under a financial lease (lease agreement), the lessor (lessor) undertakes to acquire the ownership of the property specified by the lessee from a specified seller and provide the lessee (lessee) with this property for a fee for temporary possession and use.

The subject of leasing can be any non-consumable things, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property.

Cannot be leased land and other natural objects, as well as property that is prohibited by federal laws for free circulation or for which a special procedure for circulation has been established, with the exception of military products, the leasing of which is carried out in accordance with international treaties of the Russian Federation, Federal law dated July 19, 1998 No. 114-FZ "On military-technical cooperation of the Russian Federation with foreign states"In the manner prescribed by the President of the Russian Federation, and technological equipment foreign production, leasing of which is carried out in accordance with the procedure established by the President of the Russian Federation (Article 3 of Law No. 164-FZ).

The lessor is a physical or entity, which at the expense of attracted and (or) own funds acquires property in the course of the leasing agreement and provides it as a leased asset to the lessee for a specified fee, for a specified period and under certain conditions for temporary possession and use with or without the transfer to the lessee of ownership of the leased asset (Article 4 of the Law No. 164-FZ).

Lessee - an individual or legal entity who, in accordance with the lease agreement, is obliged to accept the leased asset for a specified fee, for a specified period and under certain conditions for temporary possession and use in accordance with the lease agreement (Article 4 of Law No. 164-FZ).

Clause 1 of Article 11, Clause 1 of Article 31 of Law No. 164-FZ establishes that the leased asset transferred for temporary possession and use to the lessee is the property of the lessor and is recorded on the balance sheet of the lessor or lessee by mutual agreement of the parties.

Upon termination of the lease agreement, the lessee undertakes to return the leased item or acquire it into ownership on the basis of the sale and purchase agreement (clause 5 of Article 15 of Law No. 164-FZ). In this case, the transfer of ownership to the lessee on the terms established by agreement of the parties can be carried out both after the expiration of the contract and before its expiration (Article 19 of Law No. 164-FZ).

If the lease agreement provides for the transfer of ownership of the leased asset to the lessee, then the redemption price of the leased asset may be included in the total amount of the lease agreement (clause 1 of Article 28 of Law No. 164-FZ).

Change of lessor.

In accordance with paragraph 1 of Article 18 of Law No. 164-FZ, the lessor may assign to a third party all or part of his rights under a lease agreement. At the same time, he is obliged to warn the lessee about all the rights of third parties to the leased asset. Note that failure to comply with this requirement gives the lessee the right to demand termination of the contract due to a violation of a material nature (paragraph 2 of Article 450 of the Civil Code of the Russian Federation).

When changing the lessor, the written consent of the lessee is not required. However, in order to avoid disagreements, the author recommends that the parties nevertheless draw up it properly in accordance with the rules of Article 391 of the Civil Code of the Russian Federation.

The full assignment of the lessor's rights to a third party is possible only after he has fulfilled his obligation to purchase certain property for the lessee from a certain seller and transfer it to the lessee for a specified fee and for a specified period. Otherwise, he must obtain the consent of the lessee to transfer his debt (Article 391 of the Civil Code of the Russian Federation). In other words, it is the assignment of ownership of the leased asset and the receipt of lease payments. Such an assignment must be made in compliance with the general rules on the assignment of a claim (Articles 382-390 of the Civil Code of the Russian Federation) and state registration rights to the leased asset.

The assignment of part of the claims represents the transfer to a third party of the rights to receive lease payments or lease payments arrears. Note that the first concession option is typical for cases of the so-called split leasing, in which the lessor takes the loan amount from the lenders on the terms "Without the right to reclaim", returning the debt to them in the future from the received amounts of lease payments, or directly - formalizing the assignment of their rights to receive lease payments.

From the moment the lessor fully cessions of its rights and obligations under the lease agreement, the lessee is obliged to pay lease payments to the new lessor (Resolution of the Federal Antimonopoly Service of the Moscow District of May 30, 2006 in case No. KG-A40 / 4202-06).

According to paragraph 1 of Article 617 of the Civil Code of the Russian Federation, the transfer of ownership (economic management, operational management, life-long inherited ownership) to the leased property to another person is not a basis for changing or terminating the lease agreement, including in terms of revising the amount of lease payments.

Thus, if the new lessor decides to increase the lease payments, the lessee can go to court. In these cases, the arbitrators, as a rule, take the side of the lessee: Resolution of the FAS Volgo-Vyatka District of October 10, 2005 in case No. А79-10625 / 2004-SK2-9987, Resolution of the FAS West Siberian District of August 1, 2005 in case No. F04-4851 / 2005 (13466-A27-24).

Note that if the leasing agreement needs state registration, then when the lessor changes, the assignment must also be registered in the manner prescribed for the registration of this type of agreement (Resolution of the FAS of the Volgo-Vyatka District of June 3, 2004 on case No.A17-254 / 15 / 3).

According to paragraph 1 of Article 15 of Law No. 164-FZ, the lease agreement, regardless of the term, is concluded in writing.

If the lessor, whose leased property is on the balance sheet, transfers its rights and obligations under the lease agreement without changing the terms of the agreement to another person by selling the leased property, then in this case it is necessary to amend the current agreement. Such changes are made by concluding an additional agreement on changing the parties to the contract (if the legislation of the Russian Federation does not provide for the registration of ownership of this property). Such clarifications are contained in the Letter of the Federal Tax Service of the Russian Federation for the city of Moscow dated January 25, 2008 No. 20-12 / 05964.

Thus, as a result of the sale of the leased asset, the corresponding agreement remains in force, and the rights and obligations of the lessor are transferred to the new owner by virtue of the law under the agreement, the subject of which is this property (Resolution of the FAS of the Far Eastern District of March 27, 2007 in case No. F03-A24 / 07-1 / 248, FAS of the West Siberian District of August 19, 2008 in case No. F04-5083 / 2008 (10125-A27-4)). At the same time, regardless of whether the financial lease agreement is reissued, the previous owner loses, and the new one acquires the right to receive income from the lease of property (paragraph 23 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 11, 2002 No. 66 "Review of the practice of resolving disputes related to rent ") (hereinafter - Information letter No. 66).

It should be noted that when the owner of the leased asset changes, the financial lease agreement should be amended with respect to information about the new lessor (paragraph 24 of Information Letter No. 66).

Note that many lessors forget the most important thing, that along with the requirements and rights under the lease agreement, there is also a transfer of ownership of the leased asset.

Thus, when changing a lessor, the algorithm of actions should be as follows:

1) the transfer of rights and obligations under a lease agreement on the basis of an agreement for the implementation of property rights, at a separate price, is possible without a price at all, since the agreement contains obligations, the author recommends obtaining the consent of the lessee;

2) assignment of the lessee's debt (if any) under a lease agreement on the basis of an agreement for the assignment of rights of claim, at a separate price;

3) either the conclusion of a new lease agreement between the new lessor and the old lessee on the same terms, or the change of the side of the old lease agreement, with the appointment by the seller of the leased asset of the old lessor;

4) return, only according to documents, of the leased item from the lessee to the old lessor, keeping it in safe custody with the lessee, termination of depreciation from the old lessor;

5) purchase and sale of leased items from the old lessor - the seller to the new lessor - the buyer, at a separate price, with the transfer under the invoice from the safekeeping of the lessee from the old lessor to the new lessor - the buyer, definition financial result from the sale from the old lessor;

6) commissioning of the leased asset with a new lessor, with initial cost, consisting of the price of the leased asset and a share of the value of the property right under the lease agreement, the transfer of the leased items under the act of acceptance - transfer of fixed assets.

Income tax.

With regard to income tax when changing lessors, I would like to note the following: on the basis of paragraph 10 of Article 258 Tax Code Of the Russian Federation (hereinafter - the Tax Code of the Russian Federation) property received (transferred) in a financial lease under a financial lease (lease agreement) is included in the corresponding depreciation group(subgroup) by the party with which this property should be accounted for in accordance with the terms of the financial lease agreement (lease agreement).

Clause 2 of Article 259.3 of the Tax Code of the Russian Federation allows the taxpayer-balance holder to apply to the basic rate of depreciation special coefficient, but not more than 3, in relation to depreciable fixed assets that are the subject of a lease agreement. This factor does not apply to fixed assets belonging to the first, second and third depreciation groups.

Since upon the transfer of ownership of the leased property new owner by virtue of the law, it acquires the rights and obligations of the lessor under a financial lease agreement; it is fully subject to the provisions of the Tax Code of the Russian Federation on the use of special coefficients for the amortization of the leased asset.

Thus, when depreciating a fixed asset that is the subject of lease and accounted for in accordance with the terms of the financial lease agreement on the balance sheet of the lessor (new owner), the latter has the right to apply a special coefficient to the main depreciation rate in the manner prescribed by Article 259.3 of the Tax Code of the Russian Federation. A similar opinion was expressed by representatives of the tax authorities (Letter of the Federal Tax Service of the Russian Federation for the city of Moscow dated January 25, 2008 No. 20-12 / 05964).

Note that the new lessor will not only be able to accrue accelerated depreciation on the cost of the leased asset, but also take into account the period of use of the leased asset by the old lessor. Depreciation for the new lessor will begin no earlier than the first day of the next month.

Note that this algorithm is minimal, and when transferring rights under a lease agreement, when changing a lessor, other problems may arise that can only be seen by examining the agreement and other primary documents.

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Change of lessors for lessors A change of parties is allowed in the lease obligation. The law provides for both the possibility of complete replacement of the lessor by a third party, and the possibility of the lessor assigning part of its claims to the lessee.