Rent a car from an individual (employee): We are looking for a profitable option. Confirm the cost of the car, rented by the employee rental car taxation

the main / KPP

In some cases, the employer is more profitable to use the employee's car than to acquire a vehicle. Arrange the organization can in various ways:

pay an employee compensation for use and wear personal car under an employment contract;
rent a car from a worker;
conclude a contract for the provision of transport services.

The transfer of the car to free use or leasing is also possible.
Payment to employees compensation for the use of their passenger car for official purposes is beneficial for the organization only when its size is stacked in the norms established by the Decree of the Government of the Russian Federation of 08.02.2002 N 92. In the approved amounts, it was difficult to meet even at the time of the release of the specified decree, currently same time it is practically impossible. Therefore, many employers conclude a car rental treaty with employees.

Lease contract

The civil code of the Russian Federation provides for the lease of vehicles:

with the provision of management services and technical exploitation (rental with crew) (Art. Art. 632 - 641 of the Civil Code of the Russian Federation);
without a crew (Art. Art. 642 - 649 of the Civil Code of the Russian Federation).

Under the rental agreement vehicle With the crew, the Landlord provides a tenant to the vehicle for temporary possession and use and provides its own services for managing them and on its technical operation (Article 632 of the Civil Code of the Russian Federation).

Under the vehicle rental agreement without a crew, the landlord provides a tenant for a vehicle for temporary possession and use without providing services for managing it and its technical operation (Art. 642 of the Civil Code of the Russian Federation).
Employers more often conclude a lease agreement without crew with employees.

An employee who granted his employer to the employer to temporarily acts as a landlord, the employer is a car tenant. The vehicle, as mentioned above, in this case is provided with the landlord to the tenant for temporary possession and use without the provision of services for managing them and without obligation on its technical operation. The tenant organizes on its own by car management and its operation (Art. 645 of the Civil Code of the Russian Federation).

The car rental agreement without a crew lies in writing, regardless of the term of the contract (Art. 643 of the Civil Code of the Russian Federation). State registration under its conclusion is not required.

The lease agreement should indicate data that allow us to determine the property to be transferred to the tenant as a lease object (clause 3 of Article 607 of the Civil Code of the Russian Federation). This means that in the car rental contract you must specify at least: brand of car, year of its release, color, body number and engine, state registration number. In the absence of the condition listed in the contract, the facility to be leased is considered not agreed by the parties, and the corresponding contract is not considered concluded (clause 3 of Art. 607 of the Civil Code of the Russian Federation).

The parties have the right to agree on the possibility of sublease. Irregulation of such a condition allows the tenant to hand over a car into a sublease without the consent of the owner (paragraph 2 of Art. 647 of the Civil Code of the Russian Federation). At the same time, the tenant remains responsible for the contract. The sublease agreements apply rules on lease agreements, unless otherwise established by law or other legal acts (paragraph 2 of Art. 615 of the Civil Code of the Russian Federation).

The wishes of the owner of the vehicle in terms of restricting its use part can also reflect in the contract. For example, for a passenger minibus may not be admissible passenger traffic and ban on the transport of goods.

The tenant, as mentioned above, is obliged to pay the landlord to the landlord. Therefore, the contract should register the procedure, conditions and deadlines rental.

The size of the rent can be determined on the basis of the cost of the vehicle and the useful life of a car having similar characteristics. And in this case, it will be comparable from the car accrued with similar characteristics. Financiers, when setting the size of rental payments, it is recommended to be guided by the prices established in the region (the letter of the Ministry of Finance of Russia of August 19, 2005 No. 03-11-04 / 2/52).

Dates of making payments The tenant and the landlord is determined independently. As a rule, the rent is made monthly in the form of a fixed payment (PP. 1 of paragraph 2 of Art. 614 of the Civil Code of the Russian Federation). In the contract, it is possible to establish another order, for example, depending on the time of work, the mileage, the number of departures. If the rent is installed in a solid amount, its size can only change by agreement of the parties and no more than once a year (paragraph 3 of Art. 614 of the Civil Code of the Russian Federation).

The employee is entitled to demand early termination of the contract if the rent was not paid in time two times in a row (paragraph 5 of Art. 614 of the Civil Code of the Russian Federation).

Conditions on the procedure and timing of the rental fee are not significant terms of the contract, as well as the terms of the lease (paragraph 1 of Art. 614 of the Civil Code of the Russian Federation). In the absence of such a condition, the contract is considered to be concluded indefinitely (paragraph 2 of Art. 610 of the Civil Code of the Russian Federation).

In the contract, it is advisable to bring replacement value The car at the time of his transfer to the leaser. It is possible to determine it by agreement of the parties.

When the employer detects the disadvantages (for which the employee meets), it is fully or partially impeding the work of the leased car, it has the right to demand, in particular, reducing rental payments (paragraph 1 of Art. 612 of the Civil Code of the Russian Federation). The worker is not responsible for the shortcomings of the car scheduled, if they (paragraph 2 of Art. 612 of the Civil Code of the Russian Federation):

marked at the conclusion of the contract;
known tenant in advance;
detected by the tenant during the inspection of the machine at the conclusion of the contract.

Civil law on the tenant is charged (Art. Art. 644, 646, 648 of the Civil Code of the Russian Federation):

to maintain in the proper condition of the leased car;
to carry out its current and overhaul;
in carrying out costs for the maintenance of a leased vehicle, insurance, including their liability insurance, as well as expenses arising in connection with its operation;
for harm caused to third parties.

However, the parties have the right otherwise to redistribute duties for the content (small and overhaul), insurance, operation of a leased car. Based on this, the contract is desirable to clearly register the duties of the parties to carry out costs. The conditions for the distribution of expenses is a justification for their recognition when calculating income tax at the tenant.

Civil liability insurance owners motor vehicles It is a prerequisite for the operation of the car (paragraph 1 of Art. 4 of the Federal Law of 25.04.2002 N 40-FZ "On compulsory insurance of civil liability of vehicle owners"). It is possible that by the time the car is transferred to the rent, the employee already insured civil liability and in the CTP policy indicates specific persons who have the right to control the car. The employer, most likely, wants to manage other faces. In this case, an employee must independently contribute to the change in the policy, concluding an additional agreement on the admission to drive the driven by the employer, or an unlimited number of persons with the insurance company. This duty of the landlord is recommended to register in the contract.

If the car will manage the face, not included in the insurance policy, then the organization may finf by 300 rubles. By virtue of paragraph 1 of Art. 12.37 Administrative Code (paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of October 24, 2006 No. 18 "On some issues arising from courts when applying a special part of the Code Russian Federation about administrative offenses ").

The contract may also be provided and voluntary insurance of the car from various risks (CASCO), from theft (theft, theft, robbery, robbery) and damage (accident, fire, explosion, natural disaster, etc.), as well as additional to the CTP happening:

the occurrence of responsibility not related to insurance risk on mandatory insurance in the cases listed in paragraph 2 of Art. 6 of the law N 40-ФЗ (for example, with damage to the driver during loading of cargo to the vehicle or its unloading);
the insufficiency of insurance payments on the CTP to complete compensation for harm caused to life, health or the property of the victims.

The car is transmitted to the tenant on the act of receiving and transmission. It can be made in an arbitrary form or take advantage of the act of acceptance of the object of fixed assets (form N OS-1, approved. Resolution of the State Statistics Committee of Russia dated January 21, 2003 No. 7). In the act it is advisable to specify the characteristics of the transmitted car, its consistent cost, mileage, as well as the technical condition according to the results of the inspection.

Documents on the vehicle are applied to the act: a certificate of registration, a copy of the passport of the vehicle, the policy of OSAGO.

The contract is considered concluded from the moment of transmission to the ledator of the vehicle (Art. 642, paragraph 2 of Art. 433 of the Civil Code of the Russian Federation).

By general rule The lease agreement stops after the lease term. If the landlord or tenant wishes to terminate the treaty at any other time, then it is necessary to prevent the other side for the month (paragraph 2 of Art. 610 of the Civil Code of the Russian Federation), although the contract may also establish and other terms.

With the termination of the lease agreement, the tenant is obliged to return the car to the landlord in the state in which he received it, taking into account the normal wear, or in a state due to the contract, if this was said in a contract separately (para. 1 Art. 622 of the Civil Code of the Russian Federation). Return of the rental car employee is also issued as an act of receiving-gear.

Agreements on the change or termination of the contract parties should issue in writing (clause 1 of Art. 452 of the Civil Code of the Russian Federation).

Accounting

To summarize information on the availability and movement of fixed assets obtained by the Organization for rent, instructions on applying an accounting account plan for financial and economic activities of organizations (approved by the order of the Ministry of Finance of Russia from 31.10.2000 N 94N) recommends using a non-balance account 001 "Rental fixed assets" . Receiving a car for rent is reflected in the account on the debit of account 001, and its return at the end of the contract expiration - on credit account 001. At the same time, property is taken into account for the balance sheet specified in the lease agreement. If the parties could not determine it, the rented car is reflected in zero cost:

The rented car is accepted for off-balance account.

The tenant organization is desirable to open an inventory card accounting card for the object of fixed assets (form N OS-6, approved by the State Statistics Committee of Russia from 01/21/2003 No. 7).

Rental and operating costs at the tenant are recognized as expenses on ordinary activities. These costs are recognized in the reporting period in which they took place, regardless of the time of the actual payment of funds (paragraphs 5, 7, 18 of the Regulations on accounting "Expenses of the organization PBU 10/99, approved by the order of the Ministry of Finance of Russia from 05/06/1999 N 33N).

When the rent is accrued, 73 "Calculations with staff for other operations" is used. Depending on which the structural unit is operated by a rented car, the specified account corresponds to cost accounting accounts: 20 "Basic Production", 23 "Auxiliary Production", 25 "general production costs", 26 "general expenses" or with account 44 " for sale":

Debit 20 (23, 25, 26, 44) Credit 73

Accrued rent per car.

Tax liabilities and insurance premiums

When calculating profit tax The rent is taken into account in the amount of actual costs in other expenses related to production and implementation (PP. 10 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation). The amount of rental payments and the procedure for their transfer are determined by the contract concluded in the manner prescribed by civil law.

As a general rule, the date of reflection of the rent is the day of calculations provided for in the contract. If this condition is absent, then costs can be taken into account on the last day of the reporting period (PP. 3 of paragraph 7 of Art. 272 \u200b\u200bof the Tax Code of the Russian Federation).

Tenant During the entire term of the lease agreement, the vehicle without a crew is obliged to maintain the proper condition of the leased vehicle, including the implementation of the current and overhaul. He owns his own and means by controlling the leased vehicle and its operation, both commercial and technical.

Unless otherwise provided by the contract for the lease of a vehicle without a crew, the tenant carries the cost of insurance, as well as expenses arising from its operation.

The above allowed financiers to conclude that the costs of the Organization made under the lease agreement with an individual, including the acquisition of fuel (fuel) to ensure work this car Based on the actual mileage of the car (taking into account the actual fuel consumption in the production purposes and the cost of its acquisition), as well as the acquisition of spare parts can be taken into account when calculating the tax base for income tax, subject to their compliance with the criteria set out in paragraph 1 of Art. 252 Tax Code of the Russian Federation (a letter of the Ministry of Finance of Russia of 13.02.2007 No. 03-03-06 / 1/81).

Recall that economically sound and documented costs incurred by the taxpayer are recognized as expenses for tax purposes, which have incurred taxpayers.

Operational costs are a comprehensive concept that includes several types of costs, in particular the acquisition of fuel, maintenance of the car, its storage and washing, the driver's salary with the insurance premiums charged on it in state extrabudgetary funds. Each type of costs is taken into account by the rules set for the corresponding type of costs. Costs:

for the purchase of fuels and other supplies Considered in material expenditures according to PP. 5 p. 1 Art. 254;
to carry out the current and overhaul rented car - in the cost of repairs in accordance with paragraph 2 of Art. 260 NK RF;
maintenance, car wash, parking, parking lot - in other expenses by virtue of PP. 11 p. 1 Art. 264 of the Tax Code of the Russian Federation;
insurance of a car and autocarted responsibility - in insurance costs on the basis of paragraph 1 of Art. 263 of the Tax Code of the Russian Federation;
the remuneration of the driver, managing the leased car, is in the cost of labor in accordance with paragraph 1 of Art. 255 NK RF.

For documentary confirmation of costs in the form of rent for taxation purposes, there is enough lease agreement and the act of transferring the car to the employer. The financiers do not insist on the monthly design of the Act on the provision of rental services (the emails of the Ministry of Finance of Russia from 06.10.2008 No. 03-03-06 / 1/559, from 09.11.2006 No. 03-03-04 / 1/742).

Only his owner or a person authorized by law or the owner (Article 608 of the Civil Code of the Russian Federation) is to take the property. Therefore, to recognize the costs of the tenant, the employee who transfers his car to rent must submit to the leaser organizations documents confirming his ownership of the car. Such a document may be a vehicle passport (TCP). During the lease agreement, the tenant should be a copy of it. If an employee controls the car by proxy, then its copy is necessary. In addition, the employee must transfer the organization certificate of registration of the car and the insurance policy (if the risks have previously insured the employee).

The basis for accounting costs for fuel waybills and documents on the acquisition of fuel and lubricants: Cash and commodity checks, consolidated invoices, etc.

Organizations that are not automotive, can use his unified form as travel sheets (approved. Resolution of the State Statistics Committee of Russia of 28.11.1997 N 78) or an independently developed form of a travel sheet, which is prescribed among approved forms of primary accounting documents applied by the Organization. In such a waystone, all mandatory details provided for in paragraph 2 of Art are required. 9 of the Federal Law of 21.11.1996 N 129-FZ "On Accounting" and paragraph 3 of the provisions on compulsory details and the procedure for filling out travel sheets (approved by the order of the Ministry of Transport of Russia of September 18, 2008 No. 152).

Confirm car repair implemented own forces, the tenant will help the estimate repair work, Defective statement, invalid on acquired parts and act on the write-off speakers. The cost of repairing a car produced by a contractor's specialized organization confirms the contract for the performance of work (contract contract), the act of acceptance of work performed, the invoice and payment documents on the payment of repair. In addition, both when repairing the car on its own, and when repairing in a specialized organization, information about the work performed must be reflected in the act on the acceptance of the repaired objects of fixed assets in the form of N OS-3 and the inventory card of the car in the form of N 6.

Insurance costs The tenant is entitled to take into account only if, under the terms of the lease agreement, these expenses are assigned to it (Article 637 of the Civil Code of the Russian Federation, paragraphs 1, paragraph 1 of Art. 263 of the Tax Code of the Russian Federation).

The expenses of the Organization for Insurance Contracts (both mandatory and voluntary) are insurance premiums paid by the insurance company (paragraph 1 of Art. 2 of the Law of the Russian Federation of 27.11.1992 N 4015-1 "On the organization of insurance business in the Russian Federation").

If the organization applies the accrual method and the insurance contract concluded for a period of more than one reporting period (quarter, half of the year, nine months), then insurance costs are taken into account when calculating income tax uniform during the period (clause 6 of Article 272 of the Russian Federation):

contract actions if the insurance premium is listed by a one-time payment;
for which part of the insurance premium is paid if the insurance premiums are paid in installments.

At the same time, in both cases, the amount included in expenses is calculated in proportion to the number of calendar days of the Agreement of the Treaty in the reporting period.

If the term of the contract is less than one reporting period, the costs of insurance are included in the cost of expenses at the time of payment (clause 6 of Art. 272 \u200b\u200bof the Tax Code of the Russian Federation).

The rest of the above expenses the organization can take into account in the reporting (tax) period to which they relate, by virtue of paragraph 1 of Art. 272 Tax Code of the Russian Federation (the letter of the Ministry of Finance of Russia of 12/22/2011 N 03-03-06 / 1/844).

At the cash method, all listed costs are included in costs when calculating income tax after their payment (clause 3 of Article 273 of the Tax Code of the Russian Federation). If such organizations have the procedure for accounting for the mentioned costs in accounting and tax accounting, there is a need to apply the accounting situation "Accounting for calculations on the income tax" PBU 18/02 (approved by the Order of the Ministry of Finance of Russia dated 19.11.2002 N 114n).

As a general rule, the car tenant is not accrued, because in this case the ownership of it does not switch to the organization (paragraph 1 of Art. 256 of the Tax Code of the Russian Federation, Art. 608 of the Civil Code of the Russian Federation). However, if the employer with the consent of the employee made inseparable improvements in the leased car (for example, put the air conditioner on the car) and at the same time the employee does not reimburse their cost, then such improvements the organization has the right to accrue depreciation from the 1st day of the month following the month of their input Operation, during the entire period of the lease agreement (paragraph 4 of paragraph 1 of Art. 256, paragraph 1 of Art. 258, paragraph 3, 4, Art. 259.1, p. 6, 7, Art. 259.2 of the Tax Code of the Russian Federation ). The rate of depreciation of capital investments It is necessary to establish based on the usefulness of the useful use determined in accordance with the classification of fixed assets included in the depreciation groups (approved. Decree of the Government of the Russian Federation of 01.01.2002 No. 1) (para. 6, 1 Art. 258 NK The Russian Federation, a letter of the Ministry of Finance of Russia from 01/21/2010 No. 03-03-06 / 2/7).

On the possibility of accounting by the tenant for the purpose of taxation of profits of expenses in the form of depreciation deductions from the value of inseparable improvements to the facility of fixed assets rented from individual, in the general order is indicated in the letter of the Federal Tax Service of Russia of August 17, 2009 No. 3-2-13 / [Email Protected]

Recall that inseparable improvements that cannot be removed without harming the rented property (paragraph 2 of Art. 623 of the Civil Code of the Russian Federation).

If, at the date of return of the leased car, inseparable improvements are not allowed, their residual value is not recognized by the flow rate (paragraph 16 of Art. 270 of the Tax Code of the Russian Federation).

When determining the tax base NDFL All taxpayer incomes obtained by both monetary and natural form (paragraph 1 of Article 210 of the Russian Federation) are taken into account.

The tax agent is obliged to calculate and hold the tax from all taxpayer income, the source of which it is (paragraph 2 of Art. 226 of the Tax Code of the Russian Federation). The exceptions are income for which the calculation and payment of tax is carried out by the taxpayer independently in accordance with Art. Art. 214.1, 214.3, 214.4, 227, 227.1 and 228 of the Tax Code of the Russian Federation. In the listed articles, income in the form of rent are not mentioned. Therefore, when renting a rent, the employer should calculate and hold the NDFL. The amount of tax should be transferred to the budget no later than the day of the actual receipt of money in the bank for the payment of the rent or the day of its transfer to the employee (paragraph 1, 4, 6, Article 226 of the Russian Federation).

Rental fee paid to the Lessor employee, VAT It is not subject to an individual is not a payer of this tax (Art. 143 of the Tax Code of the Russian Federation, the letter of the Ministry of Finance of Russia of 10.02.2004 No. 04-04-06 / 21).

The tenant has the right to take to deduct the VAT summies of VAT on fuels, other material and production reserves, including spare parts, works and services provided in connection with the operation of a leased car, after their posting in the presence of appropriate invoices and conditions that specified Property, work, services are purchased for operations, the implementation of which is subject to VAT (PP. 1 of paragraph 2 of Art. 171, paragraph 1 of Art. 172 of the Tax Code of the Russian Federation).

Note that when making insurance for a car for the services of the Insurance Company VAT is not charged (paragraph 7 of paragraph 3 of Art. 149 of the Tax Code of the Russian Federation).

Object of taxation property tax For Russian organizations, movable and immovable property admitted on the balance sheet as objects of fixed assets in accordance with the established procedure for conducting accounting (paragraph 1 of Article 374 of the Russian Federation) is recognized. The property tax on the object of fixed assets leased, pays the part of the transaction, on the balance of which the object is taken into account (letters of the Ministry of Finance of Russia dated December 10, 2009 No. 03-05-05-01 / 76, from 02.06.2006 No. 02-06 01-04 / 113). Thus, the organization does not pay the organization from the car rental tax, since the car is the ownership of the lessor worker, and not the tenant employer.

The transport tax pays the persons in which vehicles recognized by the object of taxing by this tax (paragraph 1 of Article 357 of the Tax Code of the Russian Federation). According to paragraph 20 of the rules for registration of automobiles and trailers to them in the State Security Inspectorate road Ministry of Internal Affairs of the Russian Federation (approved by the Order of the Ministry of Internal Affairs of Russia dated November 24, 2008 N 1001) vehicles are registered only with the owners of vehicles - individuals and legal entities specified in the passports of vehicles. Since when renting a car, the ownership of the organization does not pass, transport tax She does not pay. Therefore, it is the employee who is obliged to pay transport tax. At the same time, the fact of transferring a car for rent for the purpose of calculating the specified tax does not matter.

Exceptions are only cases of transferring their own cars under a lease or subliving contract to another person. Such vehicles under the agreement of the Parties to the Treaty may be registered either for the lessor, or for the lessee (paragraph 22 and 48 of the reference rules mentioned).

If the employer decided to compensate for the employment of the cost of payment of transport tax, the amount of such compensation to take into account when calculating the tax base for income tax will not be possible (paragraph 29 of Art. 270 of the Tax Code of the Russian Federation). At the same time, the organization will have a duty on calculating the NDFL and insurance premiums to state extrabudgetary funds (see below).

It was said that the employer does not have any restrictive standards for the size of the rent. Therefore, it is quite logical to increase it on the amount of compensation, because the entire amount of the rent is taken into account when calculating income tax.

Object of taxation insurance premiums In the FFR, FSS of the Russian Federation, FFOMs recognize payments and other remuneration in favor of individuals carried out in the framework of labor relations and civil law contracts, the subject of which is the performance of work or provision of services (paragraph 1 of Article 7 of the Federal Law of July 24, 2009 N 212-FZ "On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Fund for Mandatory Medical Insurance"). Do not belong to the object of taxation, in particular, remuneration under contracts related to the transfer to the use of property (clause 3 of Article 7 of the Law of N 212-FZ). Contracts related to transfer to the use of property (property rights) include property lease agreements.

The fact that the rental fee established by the lease agreement without a crew concluded between the organization and its employee is not the object of taxing by insurance premiums, confirmed the Ministry of Health and Social Development of Russia in a letter from 12.03.2010 N 550-19.

Not charged for rent and insurance premiums on compulsory social insurance against accidents at the production and occupational diseases (paragraph 1 of Article 20.1 of the Federal Law of 24.07.1998 N 125-FZ "On compulsory social insurance against accidents in production and occupational diseases ").

Example. In connection with the production necessity, the organization decided to rent a car for a period of three months from an employee of the organization V.Yu. Kotova. Under the terms of the contract, the rent is 18,500 rubles. per month, the agreed cost of the car is 385,000 rubles, the tenant carries the cost of maintaining the car and repair it in the case of need. For the acquisition of the fuels, the driver of the car was issued monthly under the report 5000 rubles. The costs of fuel in fuel in August amounted to 4615 rubles., In September - 4275 rubles, in October - 4495 rubles., The balance of the accountable amount driver returned to the office of the organization on the last day of the month. In September, parts for the car were purchased for the amount of 5015 rubles, including VAT 765 rubles, which were established, as issued an act on the replacement and write-off speakers. The car was transferred to the organization on August 1, 2012, the employee was returned on October 31 on the basis of the relevant acts of receiving a car for rent and on his return.
In accounting, the car rental costs are accompanied by the following records:
- in August:
Debit 001.
- 385 000 rubles. - A leased car is accepted for off-balance sheet;
- monthly:
Debit 20 Credit 73
- 18 500 rubles. - attributed to the cost of the accrued amount of rent for the car;
Debit 73 Credit 68, subaccount "Calculations of NFFL",
- 2405 rubles. (18 500 rubles. X 13%) - held the sum of the NDFL with rent;
Debit 73 Credit 51
- 16,095 rubles. (18 500 - 2405) - the employee is listed by the rent;
Debit 71 credit 50
- 5000 rubles. - issued a report cash for the acquisition of fuel;
Debit 10-3 Credit 71
- 4615 rubles. (4275, 4495 rubles) - acquired fuel acquired based on the advance report of the driver;
Debit 20 Credit 10-3
- 4615 rubles. (4275, 4495 rubles) - debited on the cost of the cost of consumed fuel;
Debit 50 Credit 71
- 385 rubles. (725, 505 rubles) - the balance of the accountable amount returned;
- in September, when purchasing and installing spare parts:
Debit 60 Credit 51
- 5015 rubles. - transfer funds to pay for spare parts;
Debit 10-5 credit 60
- 4250 rubles. (5015 - 765) - surrounded spare parts purchased for installation on a rented car;
Debit 19 Credit 60
- 765 rubles. - the amount of VAT submitted by the seller of spare parts;
Debit 20 Credit 10-5
- 4250 rubles. - written off on costs the cost of established spare parts instead of the failed;
Debit 68 Credit 19
- 765 rubles. - adopted to deduct the amount of VAT on the spare parts;
- in October:
Credit 001.
- 385 000 rubles. - Removed from off-balance account rented car returned to the employee.
Accrual of wages to the driver of a leased car, insurance premiums to state extrabudgetary funds, the number of NDFL is carried out in general.
When calculating income tax for the first 9 months of 2012, 8890 rubles is included in material and other expenses. (4615 + 4275) and 41 250 rubles. (18 500 + 18 500 + 4250).
When determining the taxable base for 2012, 4,495 and 18,500 rubles will be added to material and other expenses.

October 2012

Not always the organization has the opportunity and the desire to purchase a car. Often, cars are used for travel. At the same time, the question arises how it is better to place a car rental in an individual.

Maria Shcherbakova, ONP expert

Use free

You can make the use of a car belonging to the physical face in three different schemes. At the same time, they will be legal. However, the tax effects each of the options will entail their own.

The first option involves the conclusion of a contract for free use. According to such a contract, the organization (loans) is obliged to maintain a thing in good condition and bear all the costs of its maintenance (Art. 695 of the Civil Code of the Russian Federation). Such costs can be taken into account in expenditures when calculating obligations to the profit budget (sub. 49 p. 1 of Art. 264 of the Tax Code of the Russian Federation).

With a single social tax and personal income tax, the problems will not arise. Because by such a contract, the employee does not get a fee for using the car. It is in this that the main disadvantage of this option lies. However, if the employee agrees not to receive an additional remuneration, then free use is the ideal way of design.

Crew ordered?

The problem with the payment of remuneration relieves the conclusion of a car rental agreement. To document the costs of rent, it is necessary to conclude a contract in writing (Article 633, 643 of the Civil Code of the Russian Federation).

Rental payments refer to other expenses related to production and implementation (sub. 10, 1 Art. 264 of the Tax Code of the Russian Federation). The concept of "payments" includes not only the rent. The costs of fuel and spare parts compensated by the tenant can also be taken into account in expenditures if the contract contains such a condition (the letter of the Ministry of Finance of Russia of December 28, 2012 No. 03-03-04 / 1/463).

Since rent is not recognized as a service, the ESN rental should not be accrued (Article 38, paragraph 1 of Art. 236 of the Tax Code of the Russian Federation). However, if a vehicle lease agreement with the crew (that is, with management services), there are conflicts with tax on this occasion. Taxists believe that part of the fee for such a contract goes to pay for the driver's services. And this is the object of the taxation of the ESN. Such an approach is directly contrary to the Civil Code of the Russian Federation, which does not provide for the division of fees under the rental agreement with the crew (Art. 632 of the Civil Code of the Russian Federation). But in order to avoid the dispute, it is better to issue a lease agreement without a crew, and in the further order of the organization to instruct an employee to manage the leased car.

But there are no problems with NDFL. Rental as a lease agreement with crew and under the lease agreement without a crew is an employee's income (sub. 4, 1 Article 208 of the Tax Code of the Russian Federation). Therefore, the NDFL is subject. The organization in this case is a tax agent and must keep the tax when paying the rent.

Double compensation

Finally, the third option involves the design of the use of the car according to the rules of the Labor Code. Article 188 of the Labor Code of the Russian Federation permits an employee to use with its property when working if this happens with the consent and knowledge of the employer. The latter in this case is obliged, first of all, to reimburse the employee costs associated with the use of the machine. And secondly, to pay compensation for the use, depreciation (depreciation) of transport.

Taxation With this embodiment, the car use will be the following. And compensation, and reimbursement will not be created by the ESN and NDFL. So, compensation is subject to articles 238 and 217 of the Tax Code of the Russian Federation, respectively. These articles exempt from "salary" taxes, in particular compensation paid in accordance with the legislation of the Russian Federation. Please note that the ESN and NDFL are not charged to the entire amount of compensation established in the employee agreement and the employer (the resolution of the Federal Arbitration Courts of the Ural District of January 26, 2004 in case No. F09-5007 / 03-AK and the North-Western District of January 23, 2006 in case number A26-6101 / 2005-210).

Compensation of the same costs in principle does not fall under the object of taxation as the ESN and NFFL. Since it is not a remuneration for the employment contract, and therefore, an employee's income in the sense that article 41 of the Tax Code of the Russian Federation attaches to this concept.

As for income tax, the compensation paid by the employee can be taken into account in other expenses related to the production and implementation of only within the limits of norms (sub. 11 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation). These norms are contained in the Decree of the Government of the Russian Federation of 08.02.02 No. 92. For passenger cars with a motor up to 2000 cu. Santimeters An employee of the organization relies compensation of 1,200 rubles per month. If the engine size exceeds the specified value, then 1,500 rubles per month.

But reimbursement of expenses, in our opinion, can be taken into account in full (p. 49 of Art. 264 of the Tax Code of the Russian Federation). True, the Ministry of Finance in this case adheres to another position, believing that the cost of fuel, maintenance and current repairs are already taken into account when calculating the limit compensation size (letter dated 16.05.05 No. 03-03-01-02 / 140). However, this approach contradicts Article 188 of the Labor Code of the Russian Federation, which directly provides for two types of payments, relying an employee who uses their property when working.

Thus, the design of the use of the car according to the rules of the Labor Code of the Russian Federation makes it possible to take into account the payment of the employee in the taxation of the profit (within the limits) and to bring them out of the taxation of the ESN and the income tax. This option, in our opinion, is the most profitable.

Legal regulation of each of them has its own characteristics. Under the Treaty of Lease of a vehicle with the crew, the landlord must provide a tenant car and provide him with the management of this car and its technical operation (Art. 632 of the Civil Code of the Russian Federation). Under the Treaty of Rental Vehicle without a crew, the landlord simply must provide a tenant car for temporary possession and use (Art. 642 of the Civil Code of the Russian Federation).

Situation: Is it possible to conclude a vehicle lease agreement with crew with an employee of the organization

The question is ambiguous. According to the Civil Code of the Russian Federation, when renting a vehicle with the crew of the person who manage this vehicle and ensuring its technical operation should consist with a landlord in labor relations (paragraph 2 of Art. 635 of the Civil Code of the Russian Federation).

At the same time, controlling agencies do not dispute the possibility of imprisonment with an employee (founder) of a vehicle lease agreement with the crew (see, for example, a letter of the Ministry of Finance of Russia dated July 14, 2008 No. 03-04-06-02 / 73).

If there was a need to conclude a vehicle lease agreement with an employee with the provision of services for management and technical operation, conclude two contracts - a vehicle lease agreement without a crew and the contract for the provision of services for management and technical operation. In this case, the availability of hired employees is optional. At the same time, the provision of services for management and technical operation should not be included in official duties Employee. Otherwise, payments under the contract for the provision of services can be recognized as not inconspicuous (Art. 252 of the Tax Code of the Russian Federation).

When concluding a vehicle lease agreement, pay attention to the description of the leased car. It is necessary to register such its technical characteristics so that you can determine exactly which car leases the organization. Only in this case the lease agreement is considered concluded. This is stated in paragraph 3 of Article 607 of the Civil Code of the Russian Federation. Therefore, in the contract you need to specify the car brand, year of production and color, body number and engine, the state to be more complete, information can be transferred to the contract from the passport of the vehicle or the certificate of registration.

To operate the car organization (tenant), you will need a certificate of registration, a technical system, a coupon of technical inspection and policy (if the risk of responsibility of the organization was insured by an employee (landlord)). To ensure that the employee (landlord) does not shy away from the transfer of documents, this duty can be prescribed in the contract. In addition, the contract can be provided with the responsibility of the employee for violating the timing of documents in the form of a penalty (fine, penalties).

When renting a personal car employee, be sure to familiarize yourself with the terms of the insurance of this car (OSAGO). If the organization has leased already the insured car, there are three situations.

The first: in the insurance policy it is written that an unlimited circle of people is allowed to control the car. In this case, nothing needs to do anything with insurance.

Second: Specific people who have the right to drive a car are indicated in the insurance policy. If the organization plans to allow other people to drive to its driving, it will be necessary to make changes to the policy. Make it must be a landlord employee. For making changes to the policy will have to pay. If the lease agreement does not oblige an employee (landlord) insurance, all additional costs will incur an organization (tenant) (Article 646 and 637 of the Civil Code of the Russian Federation). These costs can be taken into account when calculating income tax (clause 2 of Art. 263 of the Tax Code of the Russian Federation).

Third: The Lessor Employee does not transmit an obligatory civil liability insurance policy. In this case, the organization must independently arrange the policy of OSAGO. After all, the owners of vehicles (which is responsible for insuring responsibility) not only the owners are recognized, but also those who rent transport (Article 4 of the Law of April 25, 2002 No. 40-FZ).

If the lease agreement does not provide for a car redemption by the organization (tenant), during the term of the contract for the car belongs to the Lessor employee (Art. 608 of the Civil Code of the Russian Federation).

The vehicle lease agreement may provide for the purchase of a vehicle. In this case, at the end of the term of the contract (or until the end of the term, but after payment redemption cost) The owner of the car becomes the tenant (paragraph 1 of Art. 624 of the Civil Code of the Russian Federation).

Rules of accounting

In the accounting cost of the car leased, reflect on the off-balance account in the assessment adopted in the contract. When receiving a car for rent, make the wiring:

Debit 001.

- Reflects the cost of the car obtained in the use.

Operations for receiving a car for rent in accounting reflect on the basis of an act on the reception-transmission of the vehicle. It needs to specify the agreed cost of the transmitted car, its mileage, as well as the technical condition according to the results of the inspection. The transmission act can be made on a typical form (forms No. OS-1 or OS-1B, approved by the Resolution of the State Statistics Committee of Russia of January 21, 2003 No. 7) or in an arbitrary form. Opening an inventory card forms on forms No. OS-6, OS-6A No, optional. This is stated in paragraph 14 of the methodological instructions approved by the Order of the Ministry of Finance of Russia of October 13, 2003 No. 91n.

The depreciation on the rented car, which is not listed on the balance sheet, do not charge (paragraph 50 of the methodological instructions approved by the Order of the Ministry of Finance of Russia dated October 13, 2003 No. 91n). The amounts of rent pay to accounting accounts for those activities for which the car is rented:

Debit 20 (23, 25, 26, 29, 44 ...) Credit 76

- reflects the fee for the rental of a personal car employee.

Example

In February 2015, Alpha LLC (Tenant) concluded with the staff driver of the wheel Yu. I. The vehicle lease agreement without crew.

Rental object - a car:

- Mark - Ford Focus;

– register sign - T543NE99;

- Identification number (VIN) - HTA211020x0325409;

- type - sedan;

- year of production - 2009;

- Engine - No. X02395409;

- White color;

- engine power (kW / l. P.) - 82/112;

- Passport TS - Series 62As No. 776059;

- Registration certificate - Series 45 EX No. 062540.

The car is rented for the commercial director's official trips, the term of the contract - from February 1, 2015 to January 31, 2016. Car cost - 175,000 rubles. The monthly rent for the car is 11,800 rubles.

Accountant Alpha LLC made the following postings.

In February 2015:

Debit 001.

- 175 000 rubles. - Accepted on off-balance accounting a car leased (based on the act on acceptance-transmission of the vehicle).

Monthly during the term of the lease agreement:

Debit 26 Credit 76

- 11,800 rubles. - reflects the fee for the rental of a personal car employee.

Calculation of taxes

NDFL. The rental fee is recognized by its taxable income (sub. 4 of paragraph 1 of Art. 208 of the Tax Code of the Russian Federation). Depending on whether an employee is a resident or non-resident, NDFL must be charged at a rate of 13 or 30 percent (Article 224 of the Tax Code of the Russian Federation). Ndfl hold with the actual rental payment (clause 4 of Art. 226 of the Tax Code of the Russian Federation).

Situation: It is necessary to keep NDFL from income in kind, if the organization pays repair, maintenance and other expenses related to the operation of the car leased with the employee. The organization applies the general tax system

The answer to this question depends on the type of costs and terms of the contract.

Repair costs take into account in the following order. If, according to the lease agreement, these costs carry the landlord, and in fact they were produced by a tenant organization, then this is the income of the lessor in kind (Art. 634, 644 of the Civil Code of the Russian Federation). Such revenues of the employee (landlord) include at the NDFL Base.

In all other cases, the cost of repairs is not the landlord. This is explained by the fact that the landlord (employee) does not arise from the economic benefit (income) (Art. 41 of the Tax Code of the Russian Federation). Therefore, there is no tax base on personal income tax.

Expenses for inspection, take into account in order similar to the accounting of costs for repairs. That is, if these expenses are carrying these expenses under the lease agreement, and in fact they were produced by a tenant organization, then this is the income of the lessor in kind (Art. 635, 645 of the Civil Code of the Russian Federation, paragraph 2 of Art. 211 of the Tax Code of the Russian Federation). Such revenues of the employee (landlord) include at the NDFL Base. In other cases, the cost of the technical inspection income of the landlord (employee) is not.

Food Fuel and other similar costs (the size of which depends on actual consumption) should not be included in the tax base of NFFL. The tenant carries out their own interests (Art. 636, 646 of the Civil Code of the Russian Federation).

Consequently, an employee (landlord) does not receive any economic benefit and the income in kind does not occur (paragraph 2 of Art. 211 of the Tax Code of the Russian Federation). Thus, the NDFL is not necessary to pay in this case.

The specialists of the Ministry of Finance of Russia were given similar explanations in letters of July 9, 2007 No. 03-04-06-01 / 220 and dated July 11, 2008 No. 03-04-06-01 / 194.

If the organization has made improvements in property (for example, reconstruction or modernization) with the consent of the employee (landlord), the costs of the tenant organization associated with such improvements are considered to be the income of the landlord in natural form (clause 2 of Art. 211 of the Tax Code of the Russian Federation). The date of receipt of income in this case is the moment of transferring a reconstructed (upgraded) car employee (lessant) at the end of the lease agreement (sub. 2, paragraph 1 of Art. 223 of the Tax Code of the Russian Federation). A similar point of view was expressed in the letter of the Ministry of Finance of Russia of November 18, 2005 No. 03-05-01-04 / 363.

Insurance premiums. As a general rule, contributions for compulsory pension (social, medical) insurance with the amount of rent do not charge. This is explained by the fact that payments for civil-legal agreements related to the transfer of property to use (in this case of the car) are not recognized as insurance premiums.

This order follows from the provisions of part 3 of Article 7 of the Law of July 24, 2009 No. 212-FZ, articles 606, 642 of the Civil Code of the Russian Federation and confirmed in the letter of the Ministry of Health and Social Development of Russia of March 12, 2010 No. 550-19.

If the organization has concluded a car rental agreement with the crew with an employee, such a contract can be regarded as mixed, that is, it has elements of two types of contracts (rental and provision of services) (clause 3 of Article 421, Art. 606, 779 of the Civil Code of the Russian Federation). Payments on mixed contracts have insurance premiums only in terms of remuneration relating to the work performed (services rendered).

Payments under the contract of sale or lease by insurance premiums are not subject. This follows from part 1 of Article 7 of the Law of July 24, 2009 No. 212-FZ.

Example

The organization in January 2015 concluded with Kondratyev A. S. Agreement for renting a car with crew. The term of the contract - from January 30 to February 10, 2015.

Under the contract, the cost of the driver services (Kondratyeva) is 15,000 rubles., Car rental - 5000 rubles.

In February, an accountant accrued insurance premiums only on the cost of the driver's services.

Rent a car is a property transfer service to use and therefore contributions are not subject to contributions.

For the payment of Kondratyev in February (15,000 rubles) Accountant accrued insurance premiums in such a size.

- In the FIU - in the amount of 3300 rubles. (15,000 rubles. × 22%);

- In FFOMS - in the amount of 765 rubles. (15,000 rubles. × 5.1%).

- B - in the amount of 435 rubles. (15 000 rubles. × 2.9%).

Situation: how to charge contributions for compulsory pension (social, medical) insurance, if in a mixed contract the cost of work performed (services provided) has not been allocated a separate amount

For payments on mixed treaties, in which the cost of the work performed (services provided) has not been allocated a separate amount, contributions will have to be charged for the entire amount under the contract. The fact is that organizations do not have the right to determine the database for accrualing insurance premiums. Only controlling agencies can be determined in such a way (paragraph 4 of Part 1 of Article 29 of the Law of July 24, 2009 No. 212-ФЗ).

If in a mixed contract the cost of the work performed (services provided) has not been allocated a separate amount, sign an additional agreement with the Contractor. In it, we will write separately the cost of work (services), taxed by insurance premiums, and the cost of other payments under the contract not taken into account when calculating contributions.

Based on the Supplementary Agreement, insurance premiums are charged only for payments related to the work performed (services rendered).

Situation: It is necessary to accrue contributions to compulsory pension (social, medical) insurance, if the organization pays repair, maintenance and other expenses related to the operation of a car leased with an employee (without crew). The organization applies the general tax system

There is no need.

Costs for civil legal agreements related to the transfer of property to use (in this case of the car) are not subject to insurance premiums (part 1 and 3 of article 7, sub. "F" of paragraph 2 of Part 1 of Article 9 of the Law July 24, 2009 No. 212-FZ). Such contracts, in particular, belongs a vehicle lease agreement without a crew (Art. 642 of the Civil Code of the Russian Federation).

Consequently, contributions to the mandatory pension (social, medical) insurance does not need to be accrued with the amount of rent or the cost of the car's operation costs.

Contributions for insurance against accidents and caregings for the amount of rental fees are not necessary. If the car rental agreement with the crew is concluded, then with the amount of remuneration, the driver will have to pay contributions. But this is only necessary to do this if the payment of contributions is provided for by the contract.

Such an order is established in part 1 of Article 5 of the Law of July 24, 1998 No. 125-FZ.

Profit tax. When calculating the income tax, the costs associated with the employee's car rental can be taken into account in the amount of actual costs (sub. 10 of paragraph 1 of Art. 264, paragraph 1 of Art. 252 of the Tax Code of the Russian Federation). At the same time, the organization is also entitled to take into account the costs:

the cost of fuel (sub. 2, paragraph 1 of Art. 253 of the Tax Code of the Russian Federation);
insurance payments, if the insuring responsibility is entrusted to the tenant (sub. 1, paragraph 1 of Art. 263 of the Tax Code of the Russian Federation, Art. 646 of the Civil Code of the Russian Federation).

A similar point of view adhere to the controlling agencies (letters of the Ministry of Finance of Russia of February 13, 2007 No. 03-03-06 / 1/81, dated November 29, 2006 No. 03-03-04 / 1/806, the UFNS of Russia for May 19, 2006 No. 28-11 / 43420).

VAT. The provision of a personal car employee for renting the organization VAT is not subject. This follows from the provisions of Article 143 of the Tax Code of the Russian Federation and confirmed by the letter of the Ministry of Finance of Russia of February 10, 2004 No. 04-04-06 / 21.

The costs of the current and overhaul under the vehicle rental agreement with the crew are obliged to carry the landlord (Art. 634 of the Civil Code of the Russian Federation). Therefore, if the vehicle lease agreement concludes the condition for the repair of the repair by the tenant, it can be recognized by the court invalid by virtue of the insignificance (Article 168, 180 of the Civil Code of the Russian Federation, the Resolution of the FAS of the Moscow District of January 20, 2009 No. KG-A40 / 12869 -08). To require the use of the consequences of invalidity (for example, compensation made by the tenant costs) through the court can anyone interested party: tenant, etc. (Art. 166 of the Civil Code of the Russian Federation).

Transport tax. Transport tax must pay the one to whom the car is registered. This defines Article 357 of the Tax Code of the Russian Federation.

The car leased with the employee is registered in his name. Therefore, the tenant organization should not pay the transport tax. This is the responsibility of the Lessor Employee. And it does not matter that in fact he does not use the car.

Situation: Is it possible in the contract to establish a duty on the payment of transport tax on the tenant. The organization rents a car from an employee and applies the general tax system

No you can not.

The lessor employee must pay the transport tax itself (Art. 45 Tax Code of the Russian Federation). For the temporary owner, the obligations of software do not go (p. 40 of the methodological recommendations approved by the Order of the Ministry of Affairs of Russia of April 9, 2003 No. BG-3-21 / 177). Therefore, nothing will give anything of attorney to the name of the organization.

The only way to compensate the expenses of the employee (landlord) is to establish such a fee in the contract that would include the sum of transport tax.

Then actually tax will be paid at the expense of the organization (tenant), and the entire amount of the rent can be included in the expenses of the organization.

Property tax. The rented car is not the property of the organization. So, already on this basis does not need to pay property tax. But even if the company will buy a car, it is not necessary to count with its cost tax. After all, from January 1, 2013, all the movable fixed assets of property tax are not subject to (sub. 8 p. 4 of Art. 374 of the Tax Code of the Russian Federation). That is, including cars.

Example

In January, the manufacturing company Master manufacturing company (tenant) concluded with the head of the shop Volkovov V. K. (Lessor) a vehicle lease agreement without a crew. The term of the contract - from February 1 to July 31, 2015.

The rental object is a passenger car. It is rented for shipping products to the organization's warehouse. Cost of car - 215,000 rubles. The monthly rent for the car is 14,000 rubles.

The income tax "Master" pays monthly.

The amount of rent is every month during the term of the contract is included in the tax base of personal income tax. Standard deductions for NDFL Volkov are not provided.

Contributions for compulsory pension (social, medical) insurance and insurance against accidents and caregings with the amount of rent are not credited.

The accountant made such entries.

In January:

Debit 001.

- 215 000 rubles. - Accepted on off-balance accounting a car leased (based on the act on acceptance-transmission of the vehicle).

Monthly from February to July inclusive:

Debit 25 Credit 76

- 14 000 rubles. - written off the rental fee of the employee's personal car;

Debit 76 Credit 68 subaccount "Calculations for NFFL"

- 1820 rub. (14,000 rubles. × 13%) - CPU has been retained;

Debit 76 credit 50

- 12 180 rubles. (14 000 - 1820) - the fee for renting a personal car employee is paid.

When calculating the income tax accountant "Master" monthly during the period when the car goes rent from the employee, reduces the tax base by 14,000 rubles.

Simplified. The tax base of organizations on the simplist, which pay income tax, rent payments do not reduce.

Organizations on simplified, which pay a single tax on the difference between income and expenses, may include the costs that reduce the tax base:

rental amounts (sub. 4 p. 1 Article 346.16 of the Tax Code of the Russian Federation);
the cost of fuel and other costs associated with the operation of the leased car (sub. 12 p. 1 of article 346.16 of the Tax Code of the Russian Federation).

Costs can be recognized only after the factual payment (clause 2 of Article 346.17 of the Tax Code of the Russian Federation).

All expenses should be documented (clause 2, Article 346.16, paragraph 1 of Art. 252 Tax Code of the Russian Federation, the letter of the Ministry of Finance of Russia of February 1, 2006 No. 03-11-04 / 2/24).

Example

Alpha LLC applies simplified and pays a single rate at a rate of 15 percent.

In January, the organization concluded with the driver of the wheel Yu. I. The vehicle lease agreement without crew. The term of the contract is one year. The rental object is a passenger car. The monthly rent for the car under the contract is 12,300 rubles.

The entire amount of payments accrued by the wheel under the lease agreement is included monthly in the tax base of personal incipping NDFL. Standard tax deductions are not provided to him.

The monthly amount of personal income tax from the income of the wheel will be:

12 300 rubles. × 13% \u003d 1599 rub.

Contributions for compulsory pension (social, medical) insurance and insurance against accidents and caregings with the amount of rent are not credited. When calculating a single tax, the accountant reduces taxable revenues on the amount of costs associated with the car rental, in the total amount of 12,300 rubles.

ENVD Tax base of organizations - ENVD payers The costs associated with a car rental from an employee do not reduce. This is explained by the fact that UNVD is calculated based on the imputed income (paragraph 1 and 2 of Article 346.29 of the Tax Code of the Russian Federation). And he does not depend on the company's expenses.

General system + UTII. The costs associated with the rent and the operation of the rented car of the employee, consider according to the rules of the tax regime used for the activities in which the employee is busy.

The organization can simultaneously use the rented car in activities, taxable ENVD, and activities on the general tax system in this case, the costs associated with the rental and operation of the leased car must be distributed. Such an order was established by paragraph 9 of Article 274 and paragraph 7 of Article 346.26 of the Tax Code of the Russian Federation.

Insurance fees with car rentalnot calculated and not paid by the tenant only if the car is rented without a crew. If the car is taken for rent with the crew, it will be necessary to charge and pay insurance premiums on the OPS and OMS. The need to pay contributions to the OSS in the case of injury is additionally discussed in the contract.

Vehicle lease agreement

If you want to take a car into temporary use, then in order to avoid any consequences, it is necessary to choose the way to choose the machine and draw up a vehicle lease agreement, prescribing all the obligations of the parties. The interaction between the landlord and the tenant under vehicle lease agreements is regulated by paragraph 3 of the ch. 34 of the Civil Code. The lease agreement between the legal entity and individual is a simple writing.

The lease agreement of vehicles, as a rule, is indicated:

brand and car model, vin, mileage;
lease term (beginning and end);
rights and obligations of the parties;
size, timing and order of rental fees;
the order of transferring the car (place of transfer and place of return), order and timing of the payment;
presence or absence of collateral;
responsibility of the parties;
grounds and procedure for termination of the contract;
addresses, details of the parties.

Act of receiving vehicles should be made to the vehicle rental agreement. In addition to the lease agreement, the leaser needs to transfer documents for the car: TCP, certificate of registration of the vehicle, the policy of the CCAMAG, if there is a CASCO policy.

Vehicle lease agreements There are 2 species: with crew and without crew.

Rent a car without a crew in an individual

Conditions for the transfer of cars without crew services are specified in Art. 642-649 Civil Code. In accordance with the terms of the contract for renting a car without a crew in an individual, the landlord receives a remunerator from the tenant from which a legal entrance, a car rental, must keep NDFL.

At the same time, the obligations to keep insurance fees with the physician at the tenant does not appear in view of the fact that the subject of the lease of vehicles is the transfer to the use of the property of the individuality, and not the provision of services or the fulfillment of work.

Such a type of service as transferring a car (as well as any other property, except the property right to copyright, etc.), is not an object for holding insurance premiums (paragraph 4 of Art. 420 Tax Code of the Russian Federation).

A similar view that the insurance premiums are not held with the rental fees with the Landlord with the Landlord, was expressed in the Ministry of Health from 12.03.2010 No. 550-19.

Car rental with driver

If the car is rented together with the crew, i.e. If the owner of the car intends to provide his services as a driver and a locksmith, following the serviceable state of the vehicle, then the situation with the holding of insurance premiums is different. The conditions for the transfer of a car for rent with the concomitant services of this kind are governed by Art. 632-641 Civil Code.

Due to the fact that the owner of the car together with the transfer of property for rent also offers its services in a civil law agreement, then contributions should be kept from these services. We are talking about the part of the amount paid by the physician under the rental agreement with the crew, which goes to payment for his work.

It will be more expedient to the rental rental service for rent directly by the car and the "labor subsitude" of its owner to divide by allocating these two amounts. Such a division of car rental services with crew for 2 parts is not regulated by civil law, but it is so desirable to do to avoid disputes with verifying.

Since in such a rental contract there are income for the work of the individuality, then the inspections will consider the amount of contributions from the entire amount of the contract, unless the amount of payment for the work of the car driver, which is also its landlord, will not be allocated separately.

If these 2 amounts are not divided into the contract, and accruals from the amount of less than the rent provided for by the Treaty, then when checking with a high probability, insurance premiums will be made.

To resolve the conflict with verifying will have to go to court. It should be borne in mind that the overwhelming majority of court instances agrees with taxpayers that the detachment of contributions is illegally, and the requirement for the division of these 2 amounts in the contract is unreasonable, since there is no such requirement in the Civil Code of the Russian Federation. An example of this is the following court decisions: 3 of the Arbitration Court of Appeal dated April 26, 2013 No. 03Ap-121/12, FAS of the Volga District of January 15, 2013 No. F06-10012 / 12.

As for what insurance payments are accrued when concluding such a contract, everything is quite simple here. So, with the income of the landlord, which also provides services for the management of the vehicle and monitors its technical condition will be in obligatory Called contributions to OPS and OMS.

But contributions to the socialization in case of accidents will be held only when the contract for the rental of vehicles will be spelled out by a condition for their retention (paragraph 1 of Art. 20.1 of the Law "On compulsory social insurance against industrial and occupational accidents" from 24.07. 1998 No. 125-FZ).

Accounting wiring for car rental

Tenant Yurlitsa will need to display a car rental operation with crew in accounting. To do this, we will use such wiring:

Dt 26 CT 76 - car rental costs;
Dt 26 Kt 69 (subaccount of calculations on the OPS) - accrual of contributions to the OPS from the amount of payment for services for the management and maintenance of the car;
Dt 26 CT 69 (subaccount of calculations on OMS) - the accrual of contributions for OMS on the amount of payment for services for managing and maintenance of the car;
Dt 76 CT 68 (subaccount of calculations on NDFL) - Painted NDFL with a total car rental fee with crew;
Dt 76 Kt 51 - a list of fees for the rental fee less NDFL is carried out;
Dt 69 (subaccount of calculations on the OPS) CT 51 - the contributions to the OPS are listed;
Dt 69 (subaccount of calculations for OMS) CT 51 - made a list of compliments on the OMS;
Dt 68 (subaccount of payments on NDFL) KT51 - paid tax on the income of individuals.

How to avoid payment of insurance premiums?

There are several ways to avoid payment of insurance premiums. The most common is to issue labor relations with an employee who have a car, which is subsequently issued a lease agreement. That is, employers in advance, posting ads for hiring to work, indicate such a condition as the presence of a car. This condition assumes that the activities of the new employee will be associated with the roads, for which he will need a car.

Also, the car can be rented and already operating an employee who works under the employment contract in case of such a need. Thus, only a car rental agreement is concluded without a crew, which means that this contract will not hold insurance premiums. As for the restraint of insurance premiums from the employee's salary, which stands for the landlord and manages the same car, then they should be kept.

Caution contained in paragraph 2 of Art. 635 of the Civil Code of the Russian Federation, on the fact that the crew members should be employed at the lessor concerns those cases when the landlord hires third-party leaser for the management and maintenance of the rented car. If he himself performs these functions, this warning does not apply to it, because it cannot issue labor relations with himself.

Another way to care from the payment of insurance premiums is not to conclude a lease agreement, but compensation for employee costs. So, if an employee was required to fulfill his employment duties to use the car (no matter, or not), then the employer compensates for him these costs.

At the same time, an important condition is the documentary justification of the costs incurred, because the amount of compensation is not subject to personal income tax, and contributions are not held (the emails of the Ministry of Finance dated December 31, 2010 No. 03-04-06 / 6-327, Ministry of Labels of July 25, 2014 No. 17-3 / B-347), therefore, the fiscal bodies when conducting inspections, special attention is paid to such cases.

Vehicle insurance

The obligation to insure authistics to third parties for harm, which can be caused in connection with the operation of the car (OSAGO), lies with the landlord. This condition is spelled out in Art. 637 of the Civil Code of the Russian Federation with amendment that other order can be specified in the lease agreement.

This means that by default, the cost of insurance of the car transmitted for rent is owned by the owner of the car, protruding the landlord in this transaction. In turn, if the insurance is paid by the tenant under the terms of the contract, this will allow it to reduce taxable profits in accordance with Art. 263 NK RF.

About what amount of insurance costs will be accepted on expenses, read in the article "Standards provided for by the Tax Code of the Russian Federation" .

RESULTS

Vehicle lease agreements are divided into 2 types: A car is provided with the crew and without it. The legal nature of these 2 types of lease agreement of vehicles are different, because when transferring a car for rent with the crew, there are 2 types of legal relations: the transfer of a vehicle (property) into temporary paid use and the establishment of labor relations with the owner of the car in terms of the provision of car management services and conduct Its maintenance.

Due to the presence of legal relations related to the implementation of employment duties, the tenant should pay insurance premiums. At the same time, insurance premiums on the OPS and OMS should be kept necessarily, but with the amount that goes to the remuneration of the driver (crew) of the vehicle. Payment of insurance premiums on insanity on injuries is made only if it is directly mentioned in the lease agreement.

The accrual of insurance premiums under the vehicle rental contract without a crew is not made, because there is no object of the calculation of compulsory insurance.

As for the payment of insurance payments in insurance company (OSAGO - MUST, CASCO - if desired), then by default these payments carry out the landlord. However, in the contract it is possible to provide such payments to payments, if it does not contradict the legislation.

Nikita Kulikov, Executive Director
Consulting company Heads.

Seminar Plan:

When an employee uses for service purposes personal carThe company must compensate for the depreciation of the machine and maintenance costs. For example, gasoline, repair and parking. This requirement is spelled out in Article 188 of the Labor Code of the Russian Federation. There are three options: pay compensation for the Labor Code of the Russian Federation, conclude with an employee or to issue a loan (free use by car).

We will talk about how it is more profitable to take into account the reimbursement, and choose the option in which the company's expenses and tax risks are minimal, and the employee will benefit.

Immediately say goodbye to the loan agreement. This option is the least profitable and the company, and the employee. After all, from gratuitous use, property will have to recognize income. This requirement from paragraph 8 of Article 250 of the Tax Code of the Russian Federation. To calculate income, it is necessary to focus on the market price of lease of similar property. In addition, the employee will not receive money from the company. It can only count on compensation for automotive expenses. It is unprofitable.

But on compensation and lease, we will stop more.

Compensation

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You can set any compensation size. The code does not limit the amount. The main thing is to specify a specific amount in addition to the employment contract with an employee.

For example, some accountants consider compensation for wear of the machine like this: divide the car's market price for its useful use by the classifier (approved by the Decree of the Government of the Russian Federation of January 1, 2002 No. 1. - Note. Ed.). The calculation is simple and familiar. Almost the depreciation of the OS.

When an employee uses a passenger car, then not the entire amount of compensation is taken into account in tax expenditures, but only within the standard. This rule is fair both for companies on the simplified and on general System (Sub. 11, paragraph 1 of Art. 264 of the Tax Code of the Russian Federation, sub. 12, 1 Art. 346.16 of the Tax Code of the Russian Federation). Most organizations in order not to count the difference set compensation in the amount in which it can be attached to expenses.

Monthly compensation standards depend on the volume of the engine. They are indicated in paragraph 1 of the Decree of the Government of the Russian Federation of February 8, 2002 No. 92:

- 1200 rub. - For passenger cars with engine capacity up to 2000 cubic meters. cm inclusive;

- 1500 rubles, if the engine volume is greater than 2000 cu. cm;

- 600 rubles. - For motorcycles.

Compensation standards are valid only for passenger cars and motorcycles. When an employee controls the truck, in expenditures one can take into account the entire amount. In a letter dated March 18, 2010 No. 03-03-06 / 1/150, the Russian Ministry of Finance agreed with such a conclusion. Subparagraph 11 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation permits to take into account compensation for the use of the vehicle only within the limits of norms. However, the code is only about passenger cars and motorcycles. And compensation for cargo cars The company has the right to take into account completely in other expenses related to the production and implementation (sub. 49 of paragraph 1 of Art. 264 of the Tax Code of the Russian Federation).

Simplifiers in a less profitable position. In any case, they cannot include compensation for expenses freight car. Unlike companies on the basis of the simplist, a closed list of expenses. And subparagraph 12 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation permits to take into account only compensation for cars and motorcycles.

Let us turn to compensate for fuel costs. Officials believe that the provisions already taken into account the cost of fuel and other costs of the maintenance of the machine. The Ministry of Finance of Russia speaks of letters of September 23, 2013 No. 03-03-06 / 1/39239 and dated May 16, 2005 No. 03-03-01-02 / 140. Therefore, if you include compensation on costs at the same time, and compensation, this will lead to disputes with tax.

Suppose the organization pays an employee compensation every month for the use of a car in the amount of 1200 rubles. And more than this compensate for fuels and fuel. And spends on repairs. So, in tax expenses, you can take into account only 1200 rubles.

NFFL with compensation is not necessary. From the tax, paragraph 3 of Article 217 of the Tax Code of the Russian Federation exempt. Moreover, NDFLs do not need to keep even with the amount that exceeds the ratio of profits. The main thing is to indicate the desired value in addition to the employment contract (letters of the Ministry of Finance of Russia dated August 27, 2013 No. 03-04-06 / 35076, dated June 27, 2013 No. 03-04-05 / 24421).

The same with insurance premiums. This amount is exempt from them, which is stipulated in the agreement with the employee. Funds of the same opinion. The FIU reported this in paragraph 2 of the letters of September 29, 2010 No. 30-21 / 10260, and the FSS - in a letter dated November 17, 2011 No. 14-03-11 / 08-13985.

As a rule, the company pays a fixed amount of compensation every month. But if the employee did not use the property in fact, for example, he was sick or on vacation, then during this time the compensation does not accrue. It can then be written off on expenses (the letter of the Ministry of Finance of Russia of December 3, 2009 No. 03-04-06-02 / 87).

By the way, it is possible to include compensation for expenses only after payment (sub. 4 of paragraph 7 of Art. 272 \u200b\u200bof the Tax Code of the Russian Federation). Just charge the amount is not enough.

Example 1.

The company pays an employee compensation for the use of a personal car in the amount of 4000 rubles. per month. From October 12, 2015, he went on vacation for two weeks. October 22 working days. Of these, the employee was in place 12. The amount of compensation for October - 2181.82 rubles. (4000 rubles: 22 days. × 12 days).

Often, employees ride a car by proxy. When the driver is not the owner, take into account compensation in the costs risky. The tax code says that it is possible to write off compensation for personal transport. And the Ministry of Finance of Russia under the personal TS understands the one who owns an employee on the right of ownership.

With compensation for the car by a power of attorney, the NDFL will have to hold and accrual contributions: the emails of the Ministry of Finance of Russia dated August 8, 2012 No. 03-04-06 / 9-228, Ministry of Labor of Russia dated February 26, 2014 No. 17-3 / B-92. True, in one case, the specialists of the financial department are allowed not to hold the tax - if the car belongs to his wife (her husband) and was acquired in marriage. After all, property acquired during a marriage is the joint property of spouses (paragraph 1 of Art. 256 of the Civil Code of the Russian Federation).

However, with a disadvantageous position of officials, you can argue. The Tax Code does not explain what to understand under personal property. And when an employee controls the machine by proxy, he has the full right to use it for official purposes and receive compensation for this.

Judges also consider. They allow companies not to pay contributions and not to hold NDFL with compensation for the car by proxy: definition of you of the Russian Federation dated January 24, 2014 № YOU-4/14, Decree of the FAS of the Uralsky District of April 22, 2014 No. F09-1388 / 14. In addition, the Ministry of Finance specialists were previously allowed to take into account such compensation in the expenditures (a letter of December 27, 2010 No. 03-03-06 / 1/812).

To arrange and take into account compensation, the following documents are needed:

- Additional agreement with an employee. In it, specify the amount of compensation, reimbursed costs, the time of payment, the characteristics of the machine (passenger or cargo type, brand, state number, year of manufacture, the working volume of the engine, etc.);

- Papers confirming that the employee has ownership of the car: copies of PTS, OSAGO and certificate of state registration;

- Order of the head of compensation;

- Travel sheets with route, gas station checks and accounting certificate with the calculation of fuction targets, receipts for repair and other papers confirming the cost of the machine.

In addition, it is desirable to in job description The employee was spelled out the duties that suggest regular trips. For example, leaving customers or delivery of correspondence.

Example 2.

Accounting records for calculating and paying compensation

Employee for service purposes uses own car Renault Megane With engine operating volume 1598 cubic meters. See the amount of compensation for wear, which the company pays an employee every month - 1200 rubles.

In addition, the agreement with the employee stipulates that the company compensates for gasoline costs. Confirmed amount of cost of fuel and lubricants in October - 5000 rubles.

Debit 26 Credit 73
- 1200 rub. - compensation is charged for October;

Debit 73 Credit 50
- 1200 rub. Payment is paid.

Debit 26 Credit 73
- 5000 rubles. - Requests in expenditures Compensation of fuel.

The organization decided to be guided by the position of the Ministry of Finance and did not include refunds for the costs of fuel, paid over compensation. There was a difference and constant tax obligation, since gasoline costs are recognized in accounting, but not accepted in tax. Accountant accrued PNO:

Debit 99 subaccount "Permanent tax liabilities" Credit 68 subaccount "Calculations for income tax"
- 1000 rub. (5000 rubles. × 20%) - Points are calculated.

Rent

Consider the following option with which you can arrange a car - conclude a lease agreement with an employee.

There are two types of transport rental contract: with crew and without it. The lease agreement with the crew assumes that the employee reports not only a car, but also provides on the management of management and maintenance. Under the lease agreement without a crew, the employee only provides a car without any services.

But it is possible to conclude with a company employee only a lease agreement without a crew. I will explain why. The landlord concludes a lease agreement with the crew, only if he has drivers employees (paragraph 2 of paragraph 2 of Art. 635 of the Civil Code of the Russian Federation). And when an employee is an individual who is not fulfilled by the landlord.

On the size of the rent, the employee must agree with the employer. As a rule, the amount depends on technical characteristics Machines, wear degrees, etc. You can navigate to the average level of rental value in the region.

The rent can be fully taken into account in tax expenses as a company on a common system and simplifiers (sub. 10 of paragraph 1 of Art. 264, sub. 4 p. 1 Art. 346.16 of the Tax Code of the Russian Federation).

Under the rental agreement without a crew, the company carries all the costs associated with the operation of the car: gasoline, then repair, insurance, washing, parking (Art. And Civil Code of the Russian Federation). Unless, of course, in the contract parties did not provide for otherwise.

Food, repair and other expenses for the content of the rented TS Ministry of Finance permits to take into account when calculating profit: a letter of February 13, 2007 No. 03-03-06 / 1/81. True, the Office in the letter reminds that costs must be reasonable and confirmed by documents. To prove that the fuel, which was referred to the rented car, spent on official goals, use way sheets with a prescribed route. And buy gasoline to confirm checks.

Exactly the same applies to companies on USN. Simplifiers have the right to take into account the costs associated with the use of the machine, on the basis of subparagraph 5 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation.

And yet the lease has one minus. With rent will have to keep NDFL. The fact that a company that rents property from the individual is becoming a tax agent, the Ministry of Finance reminds regularly. Here is one of these letters - dated August 16, 2013 No. 03-04-06 / 33598.

If you have entered into a lease agreement without a crew, you do not need to pay. In a letter dated March 12, 2010 No. 550-19, the Ministry of Health and Social Development specialists explained that the essence of the lease agreement was the transfer of property. And payments for such agreements frees from contributions part 3 of article 7 of the Federal Law of July 24, 2009 No. 212-FZ. Contributions for injury rentals are also not subject. Exemption is provided for by part 1 of article 5 of the Federal Law of July 24, 1998 No. 125-FZ.

I recommend installing a rent in the contract not in the form of a fixed payment, but to tie it to work, mileage or number of departures. After all, the employee can go on vacation or get sick. If the car uses only it, the car will stand idle.

Position the contract for the time of vacation or the disease of the employee to adjust the rent, risky. The Civil Code of the Russian Federation is not provided for such an order.

To confirm the costs of rental payments, place an act of receiving the car. The form can be made independently or take the unified form No. OS-1. In the act detail describe the characteristics of the machine: brand, color, state number, year of manufacture, engine rooms and body. Specify in the act approximate cost car. It is needed to reflect the car on the off-balance account 001 as a rented OS. To the act, attach copies of the PTS, OSAGO and certificate of state registration.

Every month, the acts for rent not necessarily. To confirm the costs there will be enough contract and an act of acceptance and transmission (the letter of the Ministry of Finance of Russia of October 13, 2011 No. 03-03-06 / 4/118).

When an employee controls the machine by proxy, it is possible to conclude a lease agreement. But there are important details. An employee is entitled to sign the lease agreement only provided that the owner has given him permission. Therefore, check. There must be stated that the owner handed over to the representative the right to enter into a lease agreement. When you compile a contract, then draw it to the owner (rights and obligations arise from him), and will sign an agreement.

Rent will be the income of the owner, not an employee. So, the payer of the NDFL will be the owner of the TC. Therefore, when calculating the tax, you need to focus on the tax status of the owner and the 2-NDFL certificate to issue it.

Example 3.

Postings in case the company rents a car from an employee

Organization on October 1 concluded a car rental agreement without a crew with an employee. The agreed value of the car - 500,000 rubles. Monthly rent - 15,000 rubles. per month.

In October, 2000 rubles were spent on gasoline. (without VAT). The driver uses the fuel card.

On October 1, it is necessary to take a rented car with a receipt for the debit of account 001 in the amount of 500,000 rubles.

And then reflect the purchase of fuel and lubricants and payment of the lease by the following entries:

Debit 26 (44) Credit 73
- 15 000 rubles. - Rental fees are calculated;

Debit 73 Credit 68 subaccount "Calculations for NFFL"
- 1950 rub. (15 000 rubles. × 13%) - Painted NDFL;

Debit 73 Credit 50
- 13 050 rub. (15,000 - 1950) - employee's money paid;

Debit 10 subaccount "Fuel" Credit 60
- 2000 rubles. - gasoline is credited;

Debit 26 (44) Credit 10 subaccount "Fuel"
- 2000 rubles. - Written in costs the cost of fuels.

RESULTS

If the company pays compensation for a passenger car, then in the full amount to consider it in expenditures it will not work. Compensation will have to normalize. Officials are confident that the norm is already included: the cost of fuel, repair and other costs associated with the car. When you separately pay gasoline employee, it is impossible to take into account these amounts in expenditure.

Therefore, it is more profitable to conclude a lease agreement (see the table below. - Note. Ed.). There are no standards here, the rent is taken into account in expenditures in the full amount, and the fuel and fuel can be written off without fear. Rental payments have one minus - they need to hold ndfl.

Select the option favorable for the company

About lecturer

Nikita Aleksandrovich Kulikov - Candidate of Law, Expert in Legal Consulting. She is engaged in legal support of projects and transactions, represents the interests of companies in court. He graduated from one of the leading legal universities of the country - the Institute of State and RAS RAS. The author of scientific articles in sectoral and scientific publications.

Indicator for comparison	Compensation	Rent
What amount can be taken into account when calculating the income tax, a single tax on the USN	Compensation for a passenger car should be normalized by companies and on the basis and on the USN. Compensation for freight car The organization can take into account in the expenditure in the total amount. And the organization on the USN can not write off such payment to expenses at all.	Companies and on the general system, and on simplified can include the entire amount of rental costs. Organizations on the basis of such a right gives subparagraph 10 of paragraph 1 of Article 264 of the Tax Code of the Russian Federation. And on the USN - subparagraph 4 of paragraph 1 of Article 346.16 of the Tax Code of the Russian Federation
Is it possible to include in expenses for gasoline, repair and other costs associated with auto operation	Officials will be against. They believe that in compensation standards, all expenses for the car (the letter of the Ministry of Finance of Russia dated September 23, 2013 No. 03-03-06 / 1/39239)	Under the rental agreement without a crew, the company itself carries all costs (Art. And Civil Code of the Russian Federation). Therefore, their organization has the right to take into account in expenditures
Is it necessary to hold the NDFL and accrue insurance premiums	Compensation is released from insurance premiums and personal income PFFL. The main thing is that the amount paid by the amount consisted of the contract	Rental is needed to keep NDFL. But the insurance premiums under the rental contract without a crew can not be accrued
What if the employee controls the machine by proxy	If an employee is not the owner of the car, then compensation cannot be taken into account in expenditures. And you will have to accrue insurance premiums and keep NDFL	In order for the employee to conclude a lease agreement, the consent of the owner. If the transaction is executed according to the rules, disputes with tax authorities will not

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Compensation

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Example 1.

Example 2.

Rent

Example 3.

Postings in case the company rents a car from an employee

RESULTS

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