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Файл:Basics of entrepreneurship in the motor transport industry. Study guide
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under certain conditions for temporary possession and use. In this case, the lease
term is equal in duration to the full depreciation period of the leased asset or
exceeds it. All risks associated with the property are assumed by the lessee.
Upon expiration of the lease agreement, the leased asset becomes the property of
the lessee. Financial leasing, in turn, can be direct, indirect, and leaseback.
Leasing companies are commercial organizations (residents of the
Russian Federation or non-residents of the Russian Federation) that perform the
functions of lessors in accordance with the legislation of the Russian Federation
and their constituent documents. Leasing companies have the right to attract
funds from legal entities and (or) individuals (residents of the Russian
Federation and non-residents of the Russian Federation) to carry out leasing
activities in the manner established by the legislation of the Russian Federation.
Methods and procedure for calculating depreciation amounts: the
depreciation amount for tax purposes is determined by taxpayers monthly in the
manner established by this article. Depreciation is accrued separately for each
depreciable property item.
Property tax (lease item) is accrued and paid to the budget by the
Balance Holder. Transport tax on a vehicle (lease item) is accrued and paid to
the budget by the Company (legal entity) that registered the vehicle with the
Driving Licensing Office (indicating this legal entity in the vehicle registration
certificate).
Accrual of depreciation on a depreciable property item begins on the
1st day of the month following the month in which this item was put into
operation. Depreciation is calculated for an amortizable asset in accordance with
the depreciation rate determined for the asset based on its useful life.
The residual value of fixed assets is determined as the difference
between their initial value and the amount of depreciation accrued over the
period of use.
The initial value of the property that is the subject of leasing is the
amount of the lessor's expenses for its acquisition.
The leasing item is any non-consumable item, including enterprises and
other property complexes, buildings, structures, equipment, vehicles, and other
movable and immovable property. The leasing items cannot be land plots and
other natural objects, as well as property that is prohibited from free circulation
by federal laws or for which a special circulation procedure has been
established. The leasing item transferred to the lessee for temporary possession
and use is the property of the lessor.
The leasing item becomes the property of the lessee upon expiration of
the Lease Agreement or before its expiration, under the terms stipulated by the
agreement of the parties.
Cash flow is the difference between the amounts of receipts and payments
of funds of the Company for a certain period of time.
A seller is an individual or legal entity that, in accordance with the
purchase and sale agreement with the lessor, sells to the lessor within the agreed
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period of time the property that is the leasing item. The seller is obliged to
transfer the leasing item to the lessor or the lessee in accordance with the terms
of the purchase and sale agreement. The seller may simultaneously act as
a lessee within the framework of one leasing relationship. Any of the leasing
entities may be a resident of the Russian Federation or a non-resident of the
Russian Federation.
Registration of a motor vehicle fleet is a military transport obligation to
register the Company with the military commissariat department. It is assigned
to a legal entity, which will subsequently register the motor vehicle with the
Driver Licencing Office (indicating this legal entity in the vehicle registration
certificate).
The term of the lease agreement must be commensurate in duration with
the full depreciation period of the leasing item or exceed it.
The lease term is the period for which the Leasing Item is transferred by
the Lessor to the Lessee for possession and use under the Lease Agreement.
The insurer is an insurance company that insures property, transport and
other types of risks associated with the leasing item and/or the lease transaction.
The function of the insurer in a leasing transaction is to draw up an insurance
agreement when concluding a transaction between the lessee and the lessor.
Subleasing is a type of sublease of a leasing item, whereby the lessee
under the Agreement transfers to third parties (lessees under the Sublease
Agreement) for temporary possession and use for a fee and for a term in
accordance with the terms of the Sublease Agreement) the property
previously received from the lessor under the Lease Agreement and
constituting the leasing item.
Appreciation which means that in leasing, instead of the term «interest
rate», which is used in lending, the term «Appreciation» is used, which is usually
expressed as the amount of interest per annum. Appreciation in leasing differs
from the interest rate on a loan and depends on the composition of expenses
(a large set of expenses associated with the transaction may be included in the
composition of expenses when calculating lease payments). Moreover, the
difference (in the amount of appreciation) can be either up or down. It is incorrect
to simply compare the Leasing Appreciation with the loan interest «straight
forward», especially considering the difference in taxation of credit and leasing
transactions. If the Appreciation is higher than the loan interest, this does not
mean that leasing is less profitable than a loan. A more objective way to assess the
effectiveness of a particular method of «acquiring» property is to calculate the
cash flow for the entire period of the transaction, taking into account the savings
on taxes and the amount of VAT refund from the budget.
Accelerated depreciation: in accordance with the Law «On Leasing»
(Article 31) and the Tax Code (subparagraph 1 of paragraph 2 of Article 259.3),
the balance holder of the leasing item has the right to apply accelerated
depreciation with a coefficient of up to 3 to the leased property. There is
a limitation: the accelerated depreciation coefficient (special coefficient) is not
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applied to property related to the first – third depreciation groups (i.e. with
a useful life from 1 year to 5 years).
Accounting for the leasing item on the balance sheet of the Lessor
(Balance Holder – Lessor) – lease payments are fully attributed to the cost of
goods, works (services) of the Lessee.
Accounting for the leasing item on the balance sheet of the Lessee
(Balance Holder – Lessee) – depreciation of the leased asset is attributed to the
cost of works (services) of the Lessee in accordance with the accelerated
depreciation coefficient. Lease payments paid to the Lessor are attributed to
expenses minus depreciation.
The founders of leasing companies (firms) can be legal entities,
individuals (residents of the Russian Federation or non-residents of the Russian
Federation).
In post-crisis conditions, when obtaining bank loans is very difficult, and
attracting long-term investments is a serious problem for Russian enterprises,
leasing (financial lease) is the most effective technology for business
development. It provides an opportunity to expand the production base of an
enterprise, introduce advanced technologies into production, increase the fixed
assets of an enterprise, and acquire the latest equipment.
A leasing company acquires specific property and transfers it to a third
party for a long period of time. At the same time, the seller is chosen by a third
party, i.e. the consumer of this financial service.
During the term of the leasing agreement, the consumer pays the cost of
the acquired property plus a fee for leasing. After the specified time and
payment of the agreed amount, the property becomes the property of the lessee.
Unlike a loan, collateral is not required for a leasing transaction, and a long-term
installment plan significantly reduces the amount of payments and allows for the
optimal management of the company's assets.
The uniqueness of this financial instrument is that leasing perfectly
combines the characteristics of long-term rent and a financial loan.
The advantages of this type of investment activity for the consumer:
leasing allows you to reduce the taxable base of the enterprise, since all
payments under the leasing agreement are included in the cost, resulting in
a reduction in income tax;
the entire amount of VAT under the agreement is offset;
as a result of accelerated depreciation of the leasing item, the amount of
property tax is reduced by three times.
Examples of items acquired on lease:
cars;
commercial vehicles;
freight transport;
special equipment;
buses;
equipment;
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air transport;
water transport;
rail transport;
the power industry;
leasing for the oil and gas sector;
leasing for the agro-industrial complex;
leasing for the timber industry;
real estate;
leasing for metallurgy and industry;
leasing of telecommunications equipment.
Consumers of leasing services are legal entities (representatives of large,
medium, or small businesses). Both macro- and microeconomic factors have
become prerequisites for the active growth of consumption of leasing services.
First of all, this is the stabilization of the country's economy as a whole.
However, a significant role is also played by a decrease in interest rates and the
availability of the service.
Currently, there is an expansion of leasing transactions in the regions of
the country, an extension of the economic cycle of leasing, and an increase in
the terms of leasing in general [15].
Who participates in the leasing transaction:
The lessor is a company that, at its own expense, acquires a car, which is
provided to the lessee as a leasing item for a fee for temporary possession and
use, under certain conditions and for a certain period.
The lessee is an individual entrepreneur or organization that receives from
the leasing company, on the basis of a leasing agreement, a car for temporary
possession and use for an agreed fee for a period agreed upon by the parties to
the transaction.
The seller (supplier) is a car dealer or a real estate company that supplies
the property selected by the lessee. The leasing item is transferred by the
manufacturer or supplier to the lessor under the terms of the purchase and sale
agreement.
The insurer is an organization participating in the transaction as an
insurer of transport, property, and other risks in relation to the leasing item.
The insurant is a legal entity that enters into an agreement with the
insurer. The insurant may be either the lessor or the lessee.
The advance payment is a payment under the Lease Agreement, paid by
the Lessee before the start of the lease term and credited towards the lease
payments in the manner and within the timeframes stipulated in the Lease
Agreement.
The depreciation group is a group of assets with a specific useful life.
The useful life is the period during which a fixed asset or intangible asset serves
to achieve the objectives of the taxpayer. The useful life is determined by the
taxpayer independently on the date of commissioning of this depreciable
property in accordance with the Tax Code of the Russian Federation and taking
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into account the classification of fixed assets approved by the Government of the
Russian Federation.
The lease agreement is an agreement under which the lessor undertakes
to acquire the property specified by the lessee from a seller determined by him
and provide the lessee with this property for a fee for temporary possession and
use. The lease agreement may provide that the choice of the seller and the
acquired property is carried out by the lessor.
The term of the lease agreement depends on the choice of the leasing item
and the financial condition of the Client. Within the framework of standardized
products, transactions with financial institutions; leasing companies; pawnshops;
driving schools; organizations leasing vehicles; municipalities, unitary
enterprises and constituent entities of the Federation are excluded from
consideration.
Vehicles are increasingly becoming the item of many leasing transactions.
This is explained by the fact that transport is not the last among the priority
areas of socio-economic development of the Russian Federation.
However, not all motor transport enterprises can afford to expand their
fleet of vehicles using their own funds. Here, financial lease, or a leasing
agreement, comes to help, which allows one to use the received property for
commercial purposes, and make payments for this property periodically during
the term of the leasing agreement.
In other words, a leasing transaction remains one of the priority options
for purchasing vehicles in installments if other methods of purchasing it are not
available to the enterprise.
For example, it is believed that leasing of vehicles is more affordable than
a bank loan, since the requirements imposed by leasing companies on clients are
always softer than the requirements imposed by banks on borrowers [16].
How leasing of vehicles helps to develop business:
1. Distribution of tax payments. During the term of the agreement, leasing
payments are classified as expenses, which reduces the total amount of VAT and
makes it possible to pay it in equal parts.
2. A competent investment of funds. An individual or legal entity pays no
more than 50 % of the total purchase price. The money saved can be invested or
spent on purchasing additional equipment.
3. Quick solution to issues. Under the terms of leasing, the equipment is
immediately put into operation by the customer. There is no need to look for
sources of financing or sort out suitable offers.
Registration of a leasing agreement is possible with a minimum advance
payment. The businessman pays 10-20 % of the purchase price. Taking into
account the terms of the agreement, which can be adjusted, it reduces the
amount of overpayments. Moreover, representatives of small and medium
businesses can take part in the state support program. Under its terms, financial
participation of businesses is reduced to a minimum.
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Features of leasing for small businesses:
1. Purchase at full price from a car dealer or used by advertisement.
Everything is relatively simple here, but also, accordingly, more expensive: you
need to have the entire amount on hand at the time of purchase and sale, pay the
purchase tax, arrange insurance at the market price and then invest in the
maintenance of the car.
2. Purchase of a car on credit from a car dealer. In order for the
conditions to be as favorable as possible, one needs to have as large a down
payment as possible on hand, and also get approval for a loan for small
businesses. In addition to the difficulties in finding favorable terms for
payment, one should also remember that, in addition to the overpayment, one
will need to pay the tax in full. Also, the payment for insurance and
registration remains with the buyer. If they do not cope with their obligations
under the loan, they will receive a negative credit history.
3. Car leasing for small and medium businesses. The advantage of leasing
is the registration of a VAT refund. Businesses can save up to 40 % of the cost
of the vehicle on tax contributions. Another advantage of leasing is that it does
not affect your credit history [17].
7.2. International leasing of cars and equipment
To assess the tax consequences of international leasing, it is necessary to
determine the place of sale of this service in accordance with the current Russian
legislation. Since if the place of sale of the service is the Russian Federation, the
lessee is forced to pay VAT twice, namely: upon import of property and upon
payment of periodic leasing payments.
As for the payment of VAT on leasing payments, the tax will be charged
if the place of sale of leasing services is recognized as the territory of the
Russian Federation. The place of sale of works (services) is determined in
accordance with the provisions of Art. 148 of the Tax Code of the Russian
Federation. Leasing is a type of rent, but Art. 148 does not say anything about it.
The official position is as follows: leasing as a type of rent is subject to the same
rules for determining the place of sale as property leasing services.
The place of sale of the service is recognized as the territory of the
Russian Federation if:
– the place of activity of the lessee of movable property, with the
exception of land vehicles, is the territory of Russia;
– the subject of the lease is real estate (except for aircraft, sea vessels and
inland waterway vessels) located on the territory of Russia.
Based on the above, we can conclude: the Russian Federation is
recognized as the place of sale of services for the provision of any equipment on
lease, and the sale of services for the provision of real estate located on the
territory of the Russian Federation is subject to VAT in any case. Therefore,
international leasing of such objects is an extremely rare situation.
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In international leasing, the lessor is a foreign organization, and in
accordance with subparagraph 7 of paragraph 1 of Article 309 of the Tax Code
of the Russian Federation, income received by a foreign organization from
leasing operations with property used on the territory of the Russian Federation
(if the receipt of such income is not related to the entrepreneurial activity of the
foreign organization through a permanent Russian representative office) is
related to the income of the foreign organization from sources in the Russian
Federation and is subject to income tax withheld at the source of income
payment. Such income includes, in particular, income from leasing operations. If
the lessor is a resident of a state with which the Russian Federation has
concluded and is in effect a corresponding agreement on the avoidance of
double taxation, the provisions of such an agreement must be taken into account
when taxing the lessor's income.
In particular, income tax on lease payments is not withheld on the territory
of the Russian Federation in accordance with the provisions of the Agreements
between the Government of the Russian Federation and the Government of the
Republic of Cyprus, Germany, Finland, the Swiss Confederation, Canada,
Ukraine, the Republic of Turkey, the Republic of Poland, the United Kingdom
of Great Britain and Northern Ireland, etc., provided that the leased item is
movable property and there is no permanent establishment of the lessor on the
territory of the Russian Federation.
In international leasing, the most acceptable customs regime is temporary
import, when foreign goods are used for a certain period (temporary import
period) on the customs territory of the Russian Federation with full or partial
conditional exemption from customs duties, taxes and without applying to these
goods prohibitions and restrictions of an economic nature established in
accordance with the legislation of the Russian Federation on state regulation of
foreign trade activities (Article 209 of the Customs Code of the Russian
Federation).
Despite the fact that this regime is preferential, since it provides for full or
partial exemption from import customs duties, Russian organizations – lessees
rarely use it, since it is limited by the maximum permissible period of stay of the
leased item on the territory of the Russian Federation of two years (Article 213
of the Labor Code of the Russian Federation). In relation to goods related to
fixed production assets (means), provided that they are not the property of
Russian persons using them on the customs territory of the Russian Federation,
temporary import is allowed with the use of partial exemption from customs
duties and taxes for 34 months.
In addition to limiting the period of stay of goods in the territory of the
Russian Federation, the Customs Code of the Russian Federation contains
a number of other conditions for the application of the temporary import regime,
which are as follows. Temporary import is permitted provided that the goods
can be identified by the customs authority upon their re-export. Thus,
temporarily imported goods must remain in an unchanged condition, with the
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exception of changes due to natural wear and tear or natural loss under normal
conditions of transportation (transportation), storage and use (operation). It is
permitted to carry out operations with temporarily imported goods that are
necessary to ensure their safety, including repairs (except for major repairs and
modernization), technical maintenance and other operations necessary to
preserve the consumer properties of the goods and maintain the goods in the
condition in which they were on the day they were placed under the customs
regime of temporary import. Disposal of temporarily imported goods in other
ways is not permitted (clauses 2-4 of Article 211 of the Customs Code of the
Russian Federation).
At the same time, the customs authority has the right to demand from the
person declaring the temporary import customs regime, the provision of
guarantees for the proper fulfillment of the obligations established by the
Customs Code of the Russian Federation (Article 160), including the provision
of an obligation to re-export temporarily imported goods (clauses 1 and 2 of
Article 210 of the Customs Code of the Russian Federation).
Another important condition for the application of the temporary import
regime is that temporarily imported goods can be used by a person who has
received permission for temporary import (Article 211 of the Customs Code of
the Russian Federation). Due to this condition, for the purpose of further use of
the leasing item in the territory of the Russian Federation, the declarant must be
a Russian organization – the lessee.
As a general rule, when importing leased property into the territory of the
Russian Federation, Russian lessee organizations pay at customs in accordance
with subparagraphs 1, 3, 5 of paragraph 1 of Article 318 of the Customs Code of
the Russian Federation the import customs duty, the value added tax levied upon
import of goods into the customs territory of Russia (subparagraph 4 of
paragraph 1 of Article 146 and subparagraph 1 of paragraph 1 of Article 151 of
the Tax Code of the Russian Federation), as well as the customs processing fee.
However, as already indicated, the application of the temporary import regime
entails full or partial conditional exemption from customs duties and taxes.
Full exemption is possible if the temporary import of goods does not
cause significant economic damage to the Russian Federation. The list of
categories of goods temporarily imported with full conditional exemption from
customs duties and taxes, as well as the conditions for such exemption,
including the maximum periods for temporary import, were determined by
Government Resolutions, and more recently by decisions of the Commission of
the Customs Union of Russia, Belarus and Kazakhstan.
In 2012, Resolution No. 147 of 2003, within the framework of which, for
a long time, motor vehicles used for international transportation enjoyed full
exemption from customs duties within the framework of the resolution, was no
longer in effect. The document used to provide for vehicles imported into the
customs territory of the Russian Federation and placed under the customs
regime of temporary import, full exemption from customs duties and taxes,
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except for customs clearance fees, for the entire period of use, provided that they
are used for international transportation of goods.
Currently, a list of unique equipment approved annually, as well as most
aircraft, enjoys full exemption from customs duties.
In case of partial conditional exemption from customs duties and taxes,
3 % of the amount of customs duties and taxes that would have been payable if
the goods had been released for free circulation is paid for each full or partial
calendar month of the goods' stay in the customs territory of the Russian
Federation.
When calculating the volume of customs payments, problems may arise
with determining the amount of customs duty, since the legislation currently
does not contain clear instructions on the procedure for determining the customs
value of goods transferred under a leasing agreement. Lessees often use the first
method (based on the transaction value of imported goods) when importing
leased items, since it is the most advantageous, since it allows taking into
account the real price of the goods and the costs of acquiring them. Customs
authorities often dispute the possibility of using the first method and the need to
use the sixth method (reserve) when determining the customs value of the leased
item, explaining this by the specifics of leasing relations (Letter of the Federal
Customs Service of Russia dated November, 2008 No. 05-33/48386).
The temporary import regime must be completed either by removing the
equipment from the customs territory of the Russian Federation, or by placing it
under a different customs regime. The current legislation does not establish
a strict procedure for completing the temporary import regime, but it should be
taken into account that it is necessary to strictly adhere to the deadlines for the
possibility of applying this customs regime (two years, and in some cases –
34 months).
In addition to the obligation to pay VAT on the value of the leasing item
as part of customs duties, which can subsequently be deducted, the lessee has to
act as a tax agent for the lessor for VAT when paying lease payments (Articles
148, 161, 174 of the Tax Code of the Russian Federation). Namely, to withhold
the VAT amount from the amount due to the foreign lessor. Thus, for the lessee,
the transaction automatically becomes 18 % more expensive. At the same time,
the lessor must be aware that the lease payment schedule must be built taking
into account the client's obligation to withhold the tax amount required by law.
Otherwise, the non-resident does not simply receive a significant portion of the
payments they were counting on. This circumstance leads to the fact that this
form of international leasing is disadvantageous to either party to the transaction
and is not widespread in practice.
In order to avoid paying VAT on the value of the property a second
time by a non-resident, it is necessary that the value of the property is always
separately identified in the leasing agreement. This allows avoiding double
taxation when paying leasing payments. The services or leasing remuneration
of a non-resident must already include Russian VAT of 18 %, since the lessee
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is the tax agent, and it is they who withhold these amounts and pay them to
the budget.
In order to avoid paying income tax for a foreign legal entity, a foreign
organization must provide the Russian lessee with confirmation that it has
a permanent place of residence in a state with which the Russian Federation has
concluded an agreement on the avoidance of double taxation. This document
must be certified by the authorized body of the country of incorporation of the
company. Certificates of registration in the territory of foreign states (certificates
of incorporation), extracts from trade registers, etc. cannot be considered as
documents confirming the permanent location of the organization in a foreign
state for tax purposes. Thus, if the lessor organization provides the lessee with
confirmation that it has a permanent location in a state with which the Russian
Federation has concluded an agreement on the avoidance of double taxation, no
income tax is withheld from it when paying income. In the absence of such
confirmation, the Russian organization is a tax agent in accordance with Article
310 of the Tax Code of the Russian Federation [18, 21].
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