home Calculators How to arrange a gratuitous transfer of property from the founder. The founder transfers personal property into the ownership of the organization: who is more profitable?

How to arrange a gratuitous transfer of property from the founder. The founder transfers personal property into the ownership of the organization: who is more profitable?

1. The LLC rented inventory and equipment from the individual entrepreneur (founder). The individual entrepreneur wants to transfer this property permanently, what is the best way to register it?

1.1. Definitely through a paid transaction. This can be as a purchase and sale agreement, an exchange agreement, and also the founders of the LLC can accept this equipment and inventory from an individual (IP) as a contribution to the authorized capital of the LLC and give this individual a share in the LLC.

2. I was the general director of an LLC; the founders transferred the LLC with all its debts (with all its property) to their other LLC. Now lawsuits are coming for tax arrears. What is my responsibility?

2.1. There is little information... it is unclear in what period these debts arose, why they arose, whether a bankruptcy procedure was introduced, etc.

2.2. If a bankruptcy procedure is introduced, then within its framework the director may be held vicariously liable for debts incurred during the period when he exercised the functions of the executive body.

3. I have a debt to an individual on a receipt. I don’t have any property, but I am the founder of an LLC. Do bailiffs have the right to seize an organization's property?

3.1. Bailiffs can seize your share in the LLC. If the debtor does not have enough other property to fulfill the requirements contained in the writ of execution, the debtor’s share in the authorized capital of a limited liability company, the debtor’s share in the joint capital of a general partnership, limited partnership (limited partnership), or the debtor’s share in a production cooperative (artel) is levied. on the basis of a judicial act.

Federal Law of October 2, 2007 N 229-FZ (as amended on August 3, 2018) “On Enforcement Proceedings” (as amended and supplemented, entered into force on September 3, 2018)
Article 74. Peculiarities of foreclosure on the property of some organizations and their members (participants)

1. If the funds at the disposal of the institution are insufficient to fulfill the requirements contained in the executive document, foreclosure on other property of the institution and the property of the owner of the institution is applied in the cases and in the manner established by federal law.
2. If a general partnership, limited partnership (limited partnership), peasant (farm) enterprise, production cooperative (artel), consumer cooperative, association (union) does not have enough property to fulfill the requirements contained in the executive document, recovery of the property of the participants of the general partnership, limited partnership (limited partnership), members of a peasant (farm) enterprise, production cooperative (artel), consumer cooperative, association (union) applies on the basis of a judicial act.
(Part 2 as amended by Federal Law dated December 30, 2015 N 444-FZ)
(see text in the previous edition)
3. If the debtor does not have enough other property to fulfill the requirements contained in the writ of execution, recovery of the debtor’s share in the authorized capital of a limited liability company, the debtor’s share in the joint capital of a general partnership, limited partnership (limited partnership), the debtor’s share in a production cooperative (artel) ) applies on the basis of a judicial act.

Collection of debts of a member of a production cooperative (artel) cannot be applied to the indivisible funds of the production cooperative (artel).
3.2. Hello!
No, the organization’s property cannot be seized

A legal entity is not liable for the debts of the founder.

4. Can the founder transfer to the institution for operational management property that will not be used by the institution and is not needed to carry out its statutory tasks?
4.1. There is no direct prohibition, but Part 1 of Article 296 of the Civil Code of the Russian Federation establishes that the Institution and state-owned enterprise, to which property is assigned by right of operational management, own and use this property within the limits established by law, in accordance with the goals of their activities, purpose this property and, unless otherwise established by law, dispose of this property with the consent of the owner of this property.

If the property assigned to the institution is not used or is used for other purposes, the owner of the property has the right to seize such property and dispose of it at his own discretion (Part 2 of Article 296 of the Civil Code). Subsequently, this circumstance (transfer of property) may serve as the basis for an inspection by the prosecutor's office.
5. Husband is 100% founder of the LLC

Can he sell the property and transfer the property to an LLC without his wife’s consent?
The director acts on behalf of the company. The manager of an LLC can sell real estate, but in compliance with the requirements specified in the law and in the Charter of the LLC. The spouse's consent is not required.

5.2. In accordance with paragraph 1 of Art. 35 of the Family Code of the Russian Federation, ownership, use and disposal of the common property of spouses is carried out by mutual consent of the spouses.
According to paragraph 2 of Art. 35 of the Family Code of the Russian Federation, when one of the spouses makes a transaction to dispose of the common property of the spouses, it is assumed that he is acting with the consent of the other spouse.
Since July 1, 2009, transactions for the purchase and sale of shares in the authorized capital of an LLC are executed only in a notarized form.
Consequently, the spouse’s consent to the sale of a share in the authorized capital of the LLC must also be drawn up in a notarized form as of July 1, 2009.
In accordance with paragraph 3 of Art. 35 of the Family Code of the Russian Federation, in order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse.
The spouse, whose notarized consent to carry out the said transaction was not received, has the right to demand that the transaction be declared invalid in court within a year from the day when he learned or should have learned about the completion of this transaction.
Sincerely.

6. Is it possible to transfer the property of the Institution into the ownership of the founder?

6.1. Hello, in accordance with the current norms of Russian legislation, this is possible by completing transactions provided for by law.

6.2. Which institution? Based on your question, we can make guesses. Apparently and based on the content of the question, it is intended to transfer the property of a legal entity that does not belong to the state and the ownership of it has been formalized. You can pass the decision of the meeting of founders.
If not the authorized capital of course. There's a slightly different procedure.

7. Can the liquidator of an enterprise, during liquidation, transfer property to the founders, provide a liquidation balance sheet, skipping the stage of dismissing employees and paying them severance pay? When a liquidator submits documents to make an entry in the Unified State Register of Legal Entities, does the tax service control the presence of undismissed employees?

7.1. Can not. Employees must be fired before the organization is liquidated and paid off in full. The founders do not have the right to receive property until all employees are completely dismissed and all payments are made to them, as well as all creditors of the organization are notified.

8. The founder and director in one person, having a debt to the creditor, transfers property from the LLC to himself as an individual, the court decision was later how to properly bring him to subsidiary liability for payment from his own funds if he did not bankrupt the company, there is simply nothing left on it.

8.1. Good afternoon
The procedure for bringing a person to subsidiary liability is determined by law.
"Civil Code of the Russian Federation (Part One)" dated November 30, 1994 N 51-FZ
(as amended on 07/03/2016)
(with amendments and additions, came into force from 01/01/2017)
Article 399. Vicarious liability
1. Before making claims against a person who, in accordance with the law, other legal acts or terms of the obligation, is liable in addition to the liability of another person who is the main debtor (subsidiary liability), the creditor must make a claim against the main debtor.
If the principal debtor refused to satisfy the creditor's claim or the creditor did not receive a response from him to the presented demand within a reasonable time, this demand may be presented to the person bearing subsidiary liability.
2. The creditor has no right to demand satisfaction of his claim against the principal debtor from a person bearing subsidiary liability if this claim can be satisfied by offsetting a counterclaim against the principal debtor or by undisputed collection of funds from the principal debtor.
3. A person bearing subsidiary liability must, before satisfying the claim presented to him by the creditor, warn the principal debtor about this, and if a claim is brought against such a person, involve the principal debtor in the case. Otherwise, the principal debtor has the right to raise against the recourse claim of the person liable subsidiaryly the objections that he had against the creditor.
4. The rules of this article apply unless this Code or other laws establish a different procedure for bringing to subsidiary liability.

When resolving disputes related to the application of subsidiary liability, it is necessary to keep in mind that the procedure for the creditor’s preliminary appeal to the main debtor, provided for in paragraph 1 of Article 399, can be considered complied with if the creditor presented a written demand to the latter and received a refusal from the debtor to satisfy it or did not receive a response to your request within a reasonable time.

In addition to the above, if an LLC has debts to individuals, you can contact the prosecutor’s office with a complaint about non-payments.

9. The founder and director in one person, having a debt to the creditor, transfers the property to himself as an individual, the court decision was later, now the debtor of the LLC has neither the means nor the property, as per the court decision to bring him to subsidiary liability if he does not bankrupt himself but has opened another company .

9.1. Check the debtor's transactions over a period of 3 years, try to recognize them as illegal, return the property, impose a penalty on it, and for this it is best to apply to the arbitration court to declare the debtor bankrupt and at the stage of checking the means to repay the debt.

10. There is no property in the LLC; I am the only founder and director. The court recognized the debt to the individual. face. There is no way to pay. Bailiffs call and come, threatening to initiate a criminal case under Article 315 of the Criminal Code of the Russian Federation. Provided explanations about the lack of activities of the LLC and property. How to stop persecution by bailiffs and not fall under an article of the Criminal Code?

10.1. If your actions had constituted a crime, a case would have already been opened. Under a criminal article, a case may not be opened, but debts must be paid, the bailiffs will continue to do their job.

11. Situation. The property was transferred for safekeeping to the individual founder of the debtor's company. The place of storage was determined to be the territory indicated as the territory of the debtor's company. Subsequently, due to violations of storage, the bailiff decided to transfer it for storage to another person. When trying to pick up a problem arose, the gates of the territory are closed and they refuse to open them. The question is whether the bailiff has the right to open the lock on the gate; the territory clearly does not belong to the debtor.

11.1. There will be no opening, no one will take such responsibility. But the bailiff will definitely be held accountable for failure to comply with the requirements.

12. According to the minutes of the 2000 meeting of the founders on the division of property, the LLC transferred the garage into the ownership of one of the founders, and a transfer deed was drawn up. Are these documents sufficient today to register ownership of a property? The land under the garage was transferred on the basis of a resolution of the administration; it was then transferred to a limited liability partnership for the right of ownership of the land, indefinite (permanent) use in 1995.

12.1. And the Agreement, the transfer deed is drawn up to the agreement?! Cadastral passport for real estate, extract from the Unified State Register.

12.2. The “garage” object must be registered in the cadastral register; the land plot, based on the documents you specified, must be formed and registered in the cadastral register. After completing all the necessary actions and receiving cadastral passports for the garage and land plot, you can apply to Rosreestr with an application for state registration of ownership of the object and land plot.
All the best!

13. LLC "Plus" is the founder of LLC "Minus" and transfers for free use property (premises) that it has owned for less than a month. Question: Does Plus LLC have to file a property tax return for the year and pay taxes?

13.1. Hello! The transfer by the owner of property for free temporary use to another person does not entail the transfer of ownership of this property.

14. How to correctly transfer property (building and land under it) from a company with one founder to an individual? Well, cheaper of course, and what if there was no tax?

14.1. Hello! It won’t work without tax, especially with OSNO.

14.2. Property can be transferred under a purchase and sale agreement or a gift agreement.
In the first case, the seller is obliged to pay tax. In the second, the donee also has the obligation to pay tax. No tax at all.

15. Can a private educational institution, by decision of the sole Founder, transfer property held by him under operational management rights and not used in statutory activities to a third party (educational institution)? This action must be carried out according to scheme No. 1: Seizure of property by the Founder with subsequent transfer directly by the Founder to a third legal entity. face or? POSSIBLE? Scheme No. 2: The Founder’s decision to transfer unused property from a Private educational institution to a third legal entity. face? Will scheme No. 2, from a legal point of view, be interpreted as WITHDRAWAL of property by the Founder?

15.1. None of your “schemes” will work. Only the Owner of the property who has transferred it to operational management can dispose of it, unless otherwise specified in the agreement.

16. Please provide a sample agreement for the repayment of the debt of the LLC to the founder with property.

16.1. Does not exist. According to the text - at most, there may be a change to the agreement under which the debt arose, regarding the repayment procedure.

17. The individual entrepreneur is the sole founder of the LLC and transfers the property for free use to the LLC. With whom is it better to conclude a loan agreement between an LLC and an individual entrepreneur or between an LLC and an individual?

17.1. Good afternoon. Doesn't matter.

18. How can a founder remove real estate from an LLC for further sale before liquidating the LLC? Is it possible for an LLC to sell a building at its residual value to the founder?

18.1. Good afternoon
Contact a lawyer for a fee, he will help you draw up all the documents.

18.2. You need to look at the documents to see if this is a big deal or not.

19. If the LLC has debts to the tax authorities. The wife is the founder. Is the husband responsible with his personal property?

19.1. No, he doesn't answer.

20. 1. When organizing an LLC, the sole founder transferred his property to him (low value). Can he compensate for his expenses from the LLC’s funds?
2. Can the founder, under a lease agreement, transfer his car to the LLC for a fee.

20.1. 1. YES, it can.
2. YES. Maybe.

GOOD LUCK TO YOU

20.2. In this case, the transfer of property for a fee is in fact a purchase and sale.

21. Is it necessary to pay tax on property that was transferred to the founder after the liquidation of the cooperative.

21.1. The answer is possible only on a paid basis
All the best

22. Upon registration in the NCP, 2 founders transferred property (non-residential premises), and subsequently 8 more members were accepted. Membership fees were paid by all participants on a timely basis (monthly). After a year, 1 of the participants decided to leave the NKP and demands a refund of either the registration fee or 10% of the NKP premises. Are the demands legitimate?

22.1. On what right was it transferred? If it's property, then no.

23. The company (OJSC) transfers 95% of the property to its new founder (LLC) on the basis of a settlement agreement within the framework of a legal dispute regarding the recovery of costs for work in progress - whether this alienation can be challenged. The founder and the Company are private (without state participation). The Company has no other options to pay off its debt. Thank you for your attention - Ruslan Sh.

23.1. Hello. And who will dispute it if both sides agree?

24. Are the LLC founder and general director liable with their property to employees for non-payment of wages?

24.1. No, they don't answer.

25. As the founder and director of an LLC, am I responsible before the law with my personal property?

25.1. You answer according to the general rule of shares in the authorized capital.

25.2. Dear Dmitry, Ufa!

In this case, you bear financial responsibility only in the amount of money you contributed to the authorized capital.

Good luck to you Vladimir Nikolaevich
Ufa 01/13/2013
12:00 Moscow time

25.3. Only in case of bankruptcy due to the fault of the director
According to the explanations contained in paragraph 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation”, when resolving disputes related with the liability of the founders (participants) of a legal entity declared insolvent (bankrupt), the owner of its property or other persons who have the right to give instructions mandatory for this legal entity or otherwise have the opportunity to determine its actions (part two of paragraph 3 of Article 56), the court must take into account that these persons can be brought to subsidiary liability only in cases where the insolvency (bankruptcy) of a legal entity is caused by their instructions or other actions. The number of persons who may be entrusted with subsidiary liability for the obligations of a legal entity declared insolvent (bankrupt) includes, in particular, a person who has a controlling stake in a joint-stock company in ownership or trust management, the owner of the property of a unitary enterprise, who has given instructions that are binding on him , and so on.

26. I am one of the founders of the LLC. In the memorandum of association, I transfer the real estate into the ownership of a limited liability company. The LLC can use my property to make a profit, since I remain the legal owner of this property (real estate). At this point in time, without leaving the founders of the LLC, I want to open my own individual entrepreneur, taking away the property (real estate). How to properly prepare documentation, how to transfer property (real estate) from an LLC to an individual entrepreneur. The rest of the LLC founders are not against my actions.

26.1. Dear Alexander, in principle this is not difficult, but you need to remember if the property you transferred during registration will be transferred to you will reduce the size of the authorized capital, and you will need to register changes to the charter plus notify creditors of the decrease in the authorized capital

27. The founder transfers property to the authorized capital of the LLC under an acceptance certificate. Who accepts the property from this LLC and signs the transfer and acceptance certificate? Gene. the director has been elected, but the LLC has not yet been registered, which means he probably cannot yet assume his powers. Who then? Chairman of the institution meetings and secretary? Thank you.

27.1. The general director begins to exercise his powers immediately after his election, as evidenced by numerous judicial practices and explanations from registration authorities. In this case, the founders must accept the property at the meeting, about which a corresponding protocol is drawn up.

28. The founder transfers property to the authorized capital of the LLC under an acceptance certificate
. Who accepts the property from this LLC and signs the transfer and acceptance certificate? Gene. the director has been elected, but the LLC has not yet been registered, which means he probably cannot yet assume his powers. Who then? Chairman of the institution meetings and secretary? Thank you.

28.1. You can contribute property to the authorized capital after registering the LLC.

29. Are the founders of an LLC liable for debts to hired workers with their personal property?

29.1. Dear Nikolay!

In accordance with the Civil Code of the Russian Federation and the Federal Law "On Limited Liability Companies", the founders of an LLC under no circumstances are liable for the debts of the LLC with their personal property - this is "limited liability".

30. Can a founder (a foreign legal entity) transfer property free of charge to a legal entity established by him and operating in the Russian Federation.

30.1. Dear Elena!

The founder can transfer property, the main thing is that the property is not limited in circulation.

Good luck

31. Can one commercial organization transfer property to its founder to a legal entity free of charge, referring to clause 2 of Article 423 of the Civil Code of the Russian Federation. With respect to you, Nina Mikhailovna Filyacheva.

Help me figure it out please) The organization is engaged in the purchase and sale of varnishes and paints. (full taxation system) We would like to establish the production of paints. The founder (the only one (100%)) has a machine (without documents), purchased about 2 weeks ago. The estimated (market) value of the machine is about 100 thousand. How can the founder transfer it to the organization machine? So, so that an organization can use it in production, perhaps depreciate it, improve it (buy additional spare parts for 30-50 thousand per spare part), use it as a fixed asset, or not as a fixed asset? If it’s on an off-balance sheet account, then we can use it in production? Is it possible? make it so that the founder, after improvements, can remove the machine from the organization? (take it back) What are the rules here? I don’t want to use it through authorized capital. Is this either for temporary use or transfer of all rights? Thank you.

Below in a detailed answer is a description of the main methods that organizations use when receiving property from the founder of the company, incl. the main pros and cons, as well as the tax burden for each of them. In any of these ways, the organization will be able to use the machine in production.

If your company intends to reflect the received property as part of fixed assets and reduce the tax base through depreciation, then the most optimal way is to purchase a machine from the founder. Indeed, in the general case, the company’s own property is taken into account as part of fixed assets. However, in such a situation, the founder will not be able to subsequently take the machine away from the company, because ownership of it will transfer to the organization. But there will be no problems taking into account the cost of repair or modernization of the machine as part of expenses.

If the founder intends to take away the machine after some time, then the most optimal option would be to rent this machine from him. In this case, the company will be able to easily include current repairs of the machine as expenses. If the lease agreement stipulates the tenant’s obligation to carry out major repairs, then the company will be able to take these costs into account when calculating income tax.

Rationale

TOP 7 ways in which companies legalize property purchased before their creation or transferred by the founders

The editors of the RNA magazine, with the help of auditors, tax consultants and other practitioners (the list of experts is given below), have prepared a list of seven possible ways to legalize the specified property, most often used in practice. Please note that most of the methods on this list have certain disadvantages, primarily in terms of taxation. Moreover, unfavorable tax consequences and additional expenses for paying taxes are possible both for the organization and for its founders (individuals).

In addition, when choosing the most suitable option, it is advisable to proceed from whether the founder intends to transfer ownership of the property to the company or plans to provide it only for use. Often, business owners specifically register expensive property in the name of themselves or other individuals, and not of the company, so that tax authorities or other creditors cannot seize it to pay off tax or other debts.

1. The organization buys property from the founder

The simplest, safest and most obvious way to legalize assets placed at the disposal of a company by its founders is to buy them from these individuals. But this method is suitable only in cases where the founder really intends to transfer the property into the ownership of a legal entity, and the organization has the funds necessary to fully pay it off.

To formalize this transaction, a purchase and sale agreement and an act of acceptance and transfer of property are usually drawn up. Although they are often limited to drawing up only the purchase act, supplementing it with terms of payment and transfer of property, as well as details and signatures of the parties (read more below).

How to competently draw up a procurement act so that tax authorities do not have any complaints

All transactions between an organization and an individual that do not require notarization must be made in simple written form (subclause 1, clause 1, article 161 of the Civil Code of the Russian Federation). This form will be observed even without the parties signing a purchase and sale agreement, if the procurement act reflects not only the details of this document, but also the main terms of the transaction. An approximate example of such a document is given in the article “Reflecting the acquisition of property from an individual in tax and accounting records”

Sergey Sheludeshev, tax accountant at CJSC PDK Apsheronsk, believes that in most cases the purchase of property from the founder does not entail adverse tax consequences for either the organization or the founder. After all, when calculating income tax, an organization will be able to take into account the costs of acquiring these assets:

- or one-time as material expenses, if the cost does not exceed 40,000 rubles. for a unit. In this case, expenses are reflected on the date of transfer of assets into production (clause 1 of Article 254 and clause 2 of Article 272 of the Tax Code of the Russian Federation);
- or in equal parts as depreciation is calculated, if the initial cost of the object exceeds 40,000 rubles. and its useful life is more than 12 months (clause 2 of Article 259 and clause 3 of Article 272 of the Tax Code of the Russian Federation).

In addition, the organization does not charge insurance contributions to extra-budgetary funds, including contributions for injuries, for the amount paid to the founder for the property purchased from him. The fact is that these contributions are not subject to payments under civil contracts, the subject of which is the transfer of ownership of property (Part 3, Article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Federal Insurance Fund of the Russian Federation , FFOMS" and clause 1 of Article 20.1 of the Federal Law of July 24, 1998 No. 125FZ "On compulsory social insurance against accidents at work and occupational diseases").

The company does not withhold personal income tax from these payments, since it is not a tax agent in relation to the income of an individual received from the sale of property owned by him (clause 2 of Article 226 of the Tax Code of the Russian Federation). Therefore, the amounts due to the founder do not need to be reflected in the 2-NDFL certificate. It does not matter whether the founder works in the organization or not.

In turn, the founder will also not need to pay personal income tax on the transaction if the sale of the property is formalized at the same price at which he bought it himself. In this case, the seller is entitled to a property deduction for personal income tax in the amount of actual expenses for the acquisition of property (subclause 2, clause 2, article 220 of the Tax Code of the Russian Federation).

True, at the end of the year, the founder will need to submit a personal income tax declaration to the inspectorate at the place of residence and attach documents on the purchase and sale of property to it (subclause 2, clause 1, article 228 of the Tax Code of the Russian Federation). This must be done no later than April 30 of the year following the year of sale (clause 1 of Article 229 of the Tax Code of the Russian Federation). A personal income tax declaration is not provided if the property sold was owned by the founder for three years or more (clause 17.1 of Article 217 of the Tax Code of the Russian Federation).

If the founder does not have documents on the acquisition of property, he is given a property deduction in the amount of 250,000 rubles when filing a personal income tax return. for the calendar year (subclause 1, clause 2 and clause 7, article 220 of the Tax Code of the Russian Federation). If the transaction amount exceeds the deduction amount, it is advisable to consider other methods of legalizing property.

Note that additional tax losses may also arise for the company if the subject of purchase is vehicles or real estate. Indeed, in relation to cars, motorcycles and other vehicles, the organization will have to pay transport tax starting from the month of its re-registration for the new owner (clause 3 of Article 362 of the Tax Code of the Russian Federation). If the founder sold real estate to the company, its value will need to be taken into account when calculating property tax during the entire useful life of the property (clause 1 of Article 374 of the Tax Code of the Russian Federation).

2. The purchase of property from the founder is formalized, but the company does not pay him money

The next possible method of legalizing property is a variation of the previous one. The only difference is that the organization does not repay the debt to the founder for the assets acquired from him, that is, does not divert funds from circulation (read more below). For at least three years, this debt will be listed in the tax and accounting records of the company (clause 1 of Article 196 of the Civil Code of the Russian Federation).

Expert commentary

Vasily Vayukin, managing partner of PERSONAL TAX MANAGEMENT LLC

If business owners intend to transfer their existing property into the ownership of the company, but do not want to withdraw money from its turnover, we can recommend two options:

- a founder who owns more than 50 percent of the company’s authorized capital can donate to the company the money he received from it as payment for the property sold. The organization will not pay profit tax on these funds, since they are not included in income (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation);
- formalize the acquisition of property from the founder through a loan agreement. The founder will issue a loan to the company for the purchase amount, and it will pay him back with the same money. It is more profitable to make a loan with interest, since in addition the organization will be able to include the amount of accrued interest in expenses (subject to the restrictions established by Article 269 of the Tax Code of the Russian Federation). But in this case, on the interest that the founder receives from the company, he will need to pay personal income tax (subclause 1, clause 1, article 208 of the Tax Code of the Russian Federation)

Vasily Vayukin, managing partner of PERSONAL TAX MANAGEMENT LLC, explained that after the expiration of the three-year limitation period, the organization will have to include outstanding accounts payable to the seller in non-operating income (clause 18 of Article 250 of the Tax Code of the Russian Federation).

However, the period for writing off debt can be extended to 10 years (clause 2 of Article 196 of the Civil Code of the Russian Federation). To do this, it is necessary to periodically sign acts of reconciliation of mutual settlements between the founder (seller) and the company. The interval between the date of sale of the property and the first reconciliation act, as well as between subsequent acts, must be less than three years. Otherwise, the debt will still have to be written off.

As an option, Vasily Vayukin suggested that instead of issuing reconciliation acts, the organization should repay the existing debt in small amounts. In this case, the debt does not become bad. Accordingly, the debtor company does not have taxable income. Although a constant delay in payment or debt write-off may cause claims from inspectors. This risk is mitigated by the presence of correctly executed documents and the statement of a substantiated position at the pre-trial stage of resolving a tax dispute.

As in the previous method, the organization will be able to take into account the cost of acquired property when calculating income tax, but only if it uses the accrual method (clause and article 272 of the Tax Code of the Russian Federation). When using the cash method, it has the right to recognize expenses only after they have been paid (subclause and clause 3 of Article 273 of the Tax Code of the Russian Federation). There is no need to accrue insurance contributions to extra-budgetary funds for the amount of payment to the founder.

A clear advantage of this method is that the founder does not generate income subject to personal income tax. After all, such income is considered received at the moment when an individual receives money or other valuables in exchange for the property sold (subclause and clause 1 of Article 223 of the Tax Code of the Russian Federation). Since in the considered option no payments are made to the founder, he does not have a taxable base for personal income tax and there is no obligation to submit a declaration.

3. The founder transfers the property belonging to him for rent to the organization

Often, founders want to retain ownership of property used by the company. In this case, you can draw up a lease agreement. True, rental is only possible for fixed assets, furniture and other assets that are not subject to processing or cannot be sold. For example, you cannot rent goods or raw materials.

Alexey Gatin, partner, head of the “litigation” department of the law firm “Law and Taxes,” noted that a significant advantage of this method is that the organization does not incur expenses for the purchase of property, that is, the funds remain in its circulation. However, additional costs still arise, in particular rental payments.

When calculating income tax, the company has the right to include the amount of rent in expenses (subclause 10, clause 1, article 264 of the Tax Code of the Russian Federation). Note that the Tax Code does not contain any prohibitions or restrictions on the recognition of these expenses in connection with the affiliation (interdependence) of the parties to the lease agreement.

In order for the organization to be able to take into account the costs of maintenance, ongoing repairs and maintenance of leased facilities, it is advisable to stipulate in the lease agreement that all these costs are borne by the tenant (clause 2 of Article 616 of the Civil Code of the Russian Federation and clause 2 of Article 260 of the Tax Code of the Russian Federation).

Insurance contributions to the Pension Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the Social Insurance Fund of the Russian Federation, including contributions for injuries, are not paid from the rental amount. After all, payments under civil contracts related to the transfer of property for use are not subject to these contributions (Part 3, Article 7, Clause 1, Article 20.1 of Federal Law No. 125-FZ of July 24, 1998).

Thus, when using this method, the organization does not experience adverse tax consequences. However, they are possible with the founder who leases the property. First of all, he will need to pay personal income tax in the amount of 13% of the amount of income received from renting out property (subclause 4, clause 1, article 208 of the Tax Code of the Russian Federation). If the founder is not a tax resident of the Russian Federation, the tax rate is 30% (clause and article 224 of the Tax Code of the Russian Federation).

Alexey Gatin emphasized that the tenant company acts as a tax agent in this situation. This means that when transferring rent to the founder, she is obliged to withhold personal income tax at the appropriate rate and transfer it to the budget (clause , , and article 226 of the Tax Code of the Russian Federation). The regulatory authorities hold a similar opinion (letters from the Ministry of Finance of Russia dated 02/27/13 No. 03-04-06/5601 and dated 06/01/11 No. 03-04-06/3-127, Federal Tax Service of Russia dated 04/09/12 No. ED-4-3 /5894@).

Let us note that the landlord is not entitled to a professional deduction for personal income tax, since he does not have the status of an individual entrepreneur (clause 1 of Article 221 of the Tax Code of the Russian Federation, letters of the Ministry of Finance of Russia dated July 13, 2010 No. 03-04-05/3-389 and the Federal Tax Service of Russia dated 10/13/11 No. ED-3-3/3378@).

Of course, the rent that the property owner expects to receive can include the amount of personal income tax from it. Then the lessor will not incur additional tax losses. At the same time, you should not significantly increase the rent. Otherwise, tax authorities may see this as an income tax optimization scheme.

In addition, in the case of leasing several objects, inspectors may classify the activities of the founder as entrepreneurial and require him to register and pay taxes as an individual entrepreneur.

4. The founder transfers the property into the ownership of the company free of charge

If it does not matter to the founder whose ownership the property will be, but the organization does not have free funds to pay it off, you can arrange a gratuitous transfer of assets.

It is good if the founder has preserved documents for the acquisition of property. In this case, it will be easier for the company to confirm its market value, which is necessary for recording the received assets in tax and accounting (clause 8 of Article 250 and clause 1 of Article 257 of the Tax Code of the Russian Federation, clause 9 of PBU 5/01 and clause 10 PBU 6/01). In the absence of such documents, the organization will have to turn to the services of an independent appraiser.

Elena Deeva, a leading consultant on accounting and taxation of an audit company, explained that the gratuitous transfer of property from the founder to the ownership of the company is formalized by an agreement and an acceptance certificate.

In addition, it is necessary to draw up a decision of the general meeting of participants or the sole founder on the gratuitous transfer of assets. It is advisable to indicate in it that the property is transferred to increase the net assets of the organization. Then the company will not need to include the market value of this property in income subject to income tax (subclause 3.4, clause 1, article 251 of the Tax Code of the Russian Federation). In this case, the share of the founder in the authorized capital of the company does not matter.

If the parties have not indicated that the property is being transferred specifically to increase net assets, the organization may have taxable income (read more below). But only in the case when the founder’s share in its authorized capital is 50% or less (subclause 11, clause 1, article 251 of the Tax Code of the Russian Federation). If its share exceeds 50%, the company does not generate non-operating income in any case. True, then one more condition must be fulfilled - within one year from the date of receipt of the property from the founder, do not transfer it to third parties, including for rent or collateral (letter of the Ministry of Finance of Russia dated January 30, 2012 No. 03-11-06/2/11 and dated 10/18/10 No. 03-03-06/1/650).

Unfortunately, the company will not be able to recognize the value of inexpensive assets transferred by the founder free of charge in tax accounting (clause 2 of Article 254 of the Tax Code of the Russian Federation). If an organization has received an item of fixed assets, it has the right to take into account the amount of depreciation accrued on it when calculating income tax (clause 8 of Article 250 and clause 1 of Article 257 of the Tax Code of the Russian Federation). Thus, this method is not profitable to use if the founder transfers assets that are not fixed assets.

On the other hand, receiving real estate free of charge will lead to an increase in the property tax base, which is also disadvantageous for the company (clause 1 and subclause 8, clause 4, article 374 of the Tax Code of the Russian Federation).

The founder does not have any tax obligations in connection with the gratuitous transfer of property to the organization. After all, she does not pay him any income. For the same reason, insurance premiums are not charged to the funds.

5. The founder transfers the property for free use to the company

If the founder still wants to retain ownership of the property and does not claim to receive rent, he can transfer it to the organization for free use. In this case, an agreement for gratuitous use (loan) and an act of acceptance and transfer of assets are drawn up (Article 689 of the Civil Code of the Russian Federation).

Vera Golubeva, leading tax consultant of the audit department of Baker Tilly Rusaudit LLC, noted that the main disadvantage of this method is the high tax burden for the organization receiving the property. In addition, there is not a clear position on all aspects of taxation of this method. Moreover, even competent documentation of relations will not reduce negative consequences and minimize possible tax risks.

First of all, it is not clear whether the organization has non-operating income. After all, formally, subclause 11 of clause 1 of Article 251 of the Tax Code of the Russian Federation, which allows not to include in income the value of property transferred free of charge by the founder, applies only to cases of its transfer into the ownership of the company.

The Russian Ministry of Finance believes that with the gratuitous use of the founder’s property, the organization generates non-operating income. It is equal to the rent for identical property (letters dated 05/12/12 No. 03-03-06/1/243 and dated 04/19/10 No. 03-03-06/4/43). Many courts share the same opinion (decrees of the Federal Antimonopoly Service of the Central District dated 06/04/10 No. A23-4776/09A-14-173ДSP and the East Siberian District dated 03/31/09 No. A33-4100/08-F02-1119/09).

The company may also have problems when reflecting in tax accounting expenses for current repairs and maintenance of assets received from the founder for free use. Although most courts believe that such expenses can be recognized when calculating income tax (resolutions of the FAS East Siberian dated July 4, 2007 No. A33-8475/06-F02-4023/07 and Volgo-Vyatsky dated December 19, 2006 No. A11-464/ 2006-K2-22/135 districts). Especially if the gratuitous use agreement states that such expenses are borne by the borrower organization.

However, the Russian Ministry of Finance is also not against accounting for such expenses, provided they meet the criteria established by paragraph 1 of Article 252 of the Tax Code of the Russian Federation (letter dated July 24, 2008 No. 03-03-06/2/91).

As for the founder, he does not have any tax obligations in connection with the transfer of property belonging to him for free use of the organization. After all, he does not receive income from this activity. Since the organization does not make payments to the founder, it is not obliged to pay insurance premiums to the funds under this loan agreement.

6. During the inventory, the organization discovers property actually provided by the founder

Sometimes the founders are ready to simply transfer ownership of property to the company without concluding any agreements and do not claim either reimbursement for the costs of its acquisition or receipt of rental payments. In this case, to legalize assets, the organization can draw up documents indicating their discovery during the inventory. This method is also suitable in a situation where the founder does not have documents to purchase property.

Note that the discovery of property during an inventory, of course, looks implausible for a newly created company. But we believe that if the organization formalizes this fact properly and pays all taxes due, then most likely there will be no claims from the tax authorities.

To document the company, it is necessary to draw up an order from the manager to conduct an inventory, an inventory list, a matching sheet and an inventory report.

Nadezhda Marchenko, manager of the tax and legal department of KPMG, explained that when surplus inventories and other property are discovered during an inventory, the organization includes their market value in non-operating income (clause 20 of Article 250 of the Tax Code of the Russian Federation). The difficulty is how to determine this value.

In order to avoid disputes with the company’s tax authorities, it is advisable to prescribe in the accounting policy for tax purposes a methodology for determining the market value of such property. It can be confirmed by a report from an independent appraiser or a certificate drawn up by the company itself based on available information on prices for similar property (clause 3 of article 105.3 and clause 8 of article 250 of the Tax Code of the Russian Federation). The necessary data can be found on the Internet, print media, or requested from state statistics agencies, the manufacturer or distributor.

Nadezhda Marchenko believes that when determining the market value of expensive objects, it is better not to rely on the information provided by the manufacturer or seller, but to obtain an expert opinion from an independent appraiser.

After the transfer of identified assets into production or commissioning, the organization has the right to recognize their value in tax accounting. If we are talking about inventories, their cost will be included at a time in material costs on the date of transfer of the industrial plant into production (paragraph 2, paragraph 2, article 254 and paragraph 2, article 272 of the Tax Code of the Russian Federation). Thus, a company that capitalized the discovered inventories and transferred them to production in the same month will not have additional amounts of income tax to pay.

If the company has discovered an item of fixed assets, it will write off its cost as expenses as depreciation is calculated in the usual manner (paragraph 2, paragraph 1, article 257 of the Tax Code of the Russian Federation). However, it does not have the right to apply a depreciation bonus in relation to such property (letter of the Ministry of Finance of Russia dated December 29, 2009 No. 03-03-06/1/829).

In addition, the organization may have additional payments for property tax and transport tax if, during an inventory, it discovers a property, car or other vehicle (clause 1 of article 358, clause 1 and subclause 8 of clause 4 of art. 374 Tax Code of the Russian Federation).

Since the connection of the discovered property with the founder is not traced, he does not have any tax obligations.

7. If the founder is an employee of the organization, it pays him compensation for the use of his personal property for business purposes

Another possible method is not even the legalization of property by the company, but rather represents a justification of the real state of things. But it is not suitable for all types of assets and only for those cases when the founder is an employee of the organization.

So, the essence of the method is that the employee (founder), with the permission of the employer, uses his personal property for business purposes, for which he is paid monetary compensation (Article 188 of the Labor Code of the Russian Federation). To do this, a written agreement is drawn up between the organization and the employee, which indicates a list of personal property used in work, the amount of compensation, the terms and procedure for its payment.

The agreement must be accompanied by copies of documents confirming that this property is indeed the personal property of the founder (for example, a copy of a vehicle passport or a sales receipt for the purchase of a mobile phone).

It turns out that the personal property of the founder specified in such an agreement is located on the territory of the organization and is exploited by it completely legally. A significant disadvantage is that the company will not be able to take its value into account when calculating income tax. But she has the right to include in tax expenses the amount of compensation paid to the founder, although with certain restrictions.

Oksana Efimeva, a bank tax lawyer, believes that this method can only be used to legalize property that the employee (founder) himself uses in his work. For example, a car, mobile phone, computer, tablet.

Paying compensation to an employee for the use of expensive production equipment or real estate belonging to him will certainly cause claims from the tax authorities. After all, other employees of the company will also use this property. Most likely, during the inspection, inspectors will reclassify the relationship as a rental relationship.

If the organization nevertheless decides on this method, it will be able to include in current expenses the entire amount of compensation for the use of the employee’s personal property that he really needs for work (subclause 49, clause 1, article 264 of the Tax Code of the Russian Federation).

The entire amount of compensation paid to the founder for the use of his personal property for business purposes is not subject to personal income tax or insurance contributions to extra-budgetary funds, including contributions for injuries (clause 3 of article 217 of the Tax Code of the Russian Federation, subparagraph “and” clause 2 part 1 of article 9 of the Federal Law of July 24, 2009 No. 212-FZ and subparagraph 2 of paragraph 1 of Article 20.2 of the Federal Law of July 24, 1998 No. 125-FZ). No standards have been established for these purposes; the standards apply only to the calculation of income tax (read more below).

Any of the founders of a limited liability company, and since the summer of 2016, any shareholder of a joint-stock company, can contribute additional funds to the organization’s property fund. This way you can finance your company free of charge. If this operation is completed correctly, it can be carried out in such a way that it does not increase, which means that there will be no need to redistribute the shares of participants or change the value of shares.

Let’s take a closer look at the possibility of making such a contribution, its legislative justification, correct accounting procedures and tax consequences.

What do the laws say?

Federal legislation allows making gratuitous contributions to property assets, without affecting the amount of the authorized capital. At first, this right applied only to LLCs: according to Art. 27 of the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies”, the right of investors to contribute funds to the company’s fund is not limited.

Since mid-summer 2016, this possibility has been legally extended to joint-stock companies: Federal Law No. 339-FZ of July 3, 2016, which entered into force on July 15, introduced corresponding changes to the previously existing regulatory act.

Features of a gratuitous contribution from the founder

Why should participants contribute funds to the company without increasing their share and authorized capital? Such financing is designed to solve several problems simultaneously:

increase the organization's net assets;
add additional working capital;
acquire the necessary material or other property;
improve reporting indicators on the balance sheet.

Unless otherwise provided in the Articles of Association, capital is contributed in cash. The law does not prohibit authorization to make a contribution in any form, such as:

movable property;
things;
real estate objects;
share in the authorized capital of another organization;
shares of any other company;
securities;
intangible assets (exclusive rights, licenses, patents, etc.).

IMPORTANT! The obligatory nature of such contributions is regulated solely by the decision of the founders and is included in the statutory documents.

Options for legal recognition of transferred property

The founder, especially if he is also a legal entity, transferring property free of charge to the organization’s fund, must correctly reflect this operation in his accounting documents. Such an act cannot be recognized as a donation procedure, since its size, as a rule, exceeds the limits allowed for donations between organizations. In order for the ban on donations between legal entities, justified in paragraph 1 of Art. 575 of the Civil Code of the Russian Federation was not violated, the contribution of participants to the LLC should be considered as:

investment transaction;
generally accepted implementation.

FOR YOUR INFORMATION! In both cases, the contribution of property is considered a gratuitous transfer, so these funds are neither an expense of the transferring party nor the income of the receiving party.

Postings of gratuitous transfer of property in accounting

On the balance sheet, the procedure for gratuitous return and acceptance of property assets is carried out in accordance with clause 11 of PBU 10/99 “Organizational Expenses”, Instructions for the Application of the Chart of Accounts and Letter of the Ministry of Finance of Russia dated January 29, 2008 No. 07-05-06/18.

Sending side wiring:

if a contribution is made in the form of cash: debit 91-2 “Other expenses”, credit 50 or 51 “Long-term loans” or 51 “Current accounts”, the content of the transaction indicates that a cash contribution is reflected;
if materials, goods, etc. are transferred to the property: debit 91-2 “Other expenses”, credit 10 “Fixed assets”, 40 “Authorized capital” or 41 “Share capital”, the content of the transaction is a reflection of the transfer of non-cash contributions of funds;
if any property is transferred: debit 01 “Fixed assets” (disposal), 02 “Depreciation of fixed assets” or 91-2 “Other expenses”, credit 01 “Fixed assets” (operation), 01 “Disposal of fixed assets”, The recorded transaction is the write-off of the initial cost of the fixed asset accrued on it, or the transfer of a non-cash contribution.

Postings of the receiving party(depending on whether value added tax was charged):

if the receipt of property was considered as a sale: debit 91-2 “Other expenses”, credit 68 “Calculations for taxes and fees”, the transaction for calculating VAT when making a contribution in non-monetary form is reflected;
if the deposit was considered as an investment transaction: debit 91-2 “Other expenses”, credit 68 “Calculations for taxes and fees”, the restoration of VAT accepted for deduction is reflected;
if the contribution is made in cash: debit 75 “Settlements with founders”, credit 83 “Additional capital”, operation to reflect the monetary contribution to the property of the subsidiary; debit 50 or 51, credit 75, receipt of funds from the participant as a contribution to the property;
when contributing goods or materials: debit 75 “Settlements with founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 10 “Fixed assets” or 41 “Share capital” – receipt of a non-monetary contribution from a participant;
upon receipt of a fixed asset: debit 75 “Settlements with founders”, credit 83 “Additional capital”, making a non-monetary contribution; debit 08-4 “Investment in non-current assets, acquisition of fixed assets”, credit 75 “Settlements with founders” - receipt of fixed assets from the founder as a property contribution.

NOTE! If the contribution is made not in cash, but in property form, then the party receiving it will not be able to take a deduction for this contribution.

Reflection of a gratuitous contribution in tax accounting

As a result of gratuitous contributions made by the founders, the tax burden is slightly reduced if it is made to increase net assets. In all other cases, the contribution affects the tax accounting of the receiving party (changes the composition of the founders’ shares).

Tax consequences for the transferor

Income tax will not be taken into account, since from a tax point of view, the transferred property is not profit, and therefore, expenses and costs associated with its transfer are not recognized (clause 16 of Article 270 of the Tax Code of the Russian Federation).

can be considered in two ways:

if funds are transferred, or the procedure is regarded as a sale, VAT must be charged, since the object of the transaction is present (letter of the Ministry of Finance dated July 15, 2013 No. 03-07-14/27452);
if the transfer is considered as an investment transaction, there is no need to charge VAT, since the object of taxation itself is absent (clause 1, clause 2, article 146 of the Tax Code of the Russian Federation, clause 4, clause 3, article 39 of the Tax Code of the Russian Federation).

Tax implications for the host

Income tax is also not accepted for accrual, since according to the law the organization did not receive any taxable income. The law does not put forward additional conditions that must be observed by the receiving party (such as the amount of participation in the capital, the specifics of the disposal of the received property, etc.).

Nuances can only arise in connection with the depreciation of fixed assets received as such contributions. The received property should be valued at market value at the time of making the contribution, but not lower than the book value of the transferring party, and then depreciated (this is permitted by letters of the Ministry of Finance of Russia dated April 28, 2009 No. 03-03-06/1/283 and dated December 5, 2008 No. 03 -03-06/1/674). It is prohibited to apply bonus depreciation.

If the received property subsequently needs to be written off or sold, their value will need to be included in tax expenses (clause 2, clause 1, article 268 of the Tax Code of the Russian Federation), since from the moment of transfer the contribution becomes the property of the organization that accepted it.

Value added tax will not be accepted for deduction, since it cannot be restored by the party transferring the contribution. There are no special provisions for VAT deduction in the case of gratuitous contributions in the tax legislation of the Russian Federation.

Perhaps, not a single Limited Liability Company will operate effectively without the property that is necessary for the normal conduct of commercial activities and for equipping premises for an office. In addition to property, an organization may need a vehicle, industrial equipment and other property. You can purchase it yourself, for example, by taking out a loan from a bank, but it is more advisable to contribute the necessary property that the founders have, documenting this process.

Why is registration necessary?

Of course, any citizen can donate property belonging to him to an organization without any registration. At first glance, this will save time and eliminate paperwork. But, according to the law, any transferred property must be registered in accordance with all the rules in order to eliminate adverse consequences for the organization. Therefore, any property must be documented, which will allow not only to accept it for accounting, but also to write off expenses associated with its use, if necessary.

The most common cases of transfer of property from the founder to the organization:

payment by property of its share in the authorized capital of the LLC;
sale of property.

Payment by property for a share in the authorized capital of an LLC

The founder can contribute property belonging to him as payment for his share in the authorized capital of the organization. In this case, the market value of the transferred property is determined at the general meeting of LLC participants or approved by a decision of the sole participant. If the market value of the property exceeds twenty thousand rubles, then it is determined by an independent appraiser.

Recipient's tax accounting

If the organization is on a simplified taxation system, then income from sales and non-operating income specified in the current Tax Code of the Russian Federation are taxed. When transferring property as a contribution to the authorized capital of the Company, taxable income does not arise for the recipient organization in this case, since it does not incur any costs when receiving such property. But, you can easily take into account the costs associated with the use of property received as a contribution in the tax base under the simplified tax system, subject to the conditions established in the Tax Code of the Russian Federation.

Tax accounting of the founder

Since the founder can be either an individual or a legal entity, the tax accounting of the transferred property will be different. If the founder is a legal entity using a simplified taxation system, then in this case, receiving a share in the authorized capital of the LLC instead of contributed property, taxable income does not arise, as well as the expenses specified in Article 346.16 of the Tax Code of the Russian Federation. There is no income subject to personal income tax if the founder is an individual.

Donation of property

There are situations when the owner wants to transfer property to the company, and not as a share in the authorized capital, but just like that. Simply put, the owner gives it away. In this case, it is necessary to formalize such a donation with an appropriate agreement, concluding which it is necessary to remember some nuances.

On the one hand, commercial organizations, on the basis of subparagraph 4 of paragraph 1 of Art. 575 of the Civil Code of the Russian Federation cannot give each other property worth more than three thousand rubles, which means that the gift of property worth a larger amount is recognized as a void transaction. On the other hand, if the owner is not an organization, but an individual, then the value of the property donated to the organization is not limited nothing.

An alternative option for the transfer of property for an LLC may be provided for by current legislation: the transfer of contributions to the Company’s property is permitted for founders of individuals and legal entities, if such a decision is made by the General Meeting of Founders, by a majority of votes, and this is stated in the Charter.

Tax accounting of an organization

Tax accounting of property accepted as a gift from the recipient's organization, using the simplified tax system as an example, is as follows: the value of the property is reflected in the accounting documents on the day of its receipt, on the basis of the acceptance and transfer act. Such property is considered non-operating income of the organization, and its value is determined in accordance with Article 40 of the Tax Code of the Russian Federation and based on market prices. In this case, the organization that accepted the property as a gift must document the calculation of its market value or use the services of an independent appraiser.

Tax accounting of the founder

Both the founder of a legal entity and the founder of an individual do not have taxable income when donating property to an organization, since there is no benefit. In addition, legal entities will not have expenses taken into account in the tax base under the simplified tax system.

Donating property is the best option for those Founders whose share in the authorized capital of the donee LLC exceeds 50%. Only in this case, the organization that accepted the property as a gift will not have taxable income. In addition, in both the first and second options of transferring property from the Founder to the organization, it will be able to take into account the costs associated only with the operation of the property.

Hello!

In accordance with Art. 689 of the Civil Code of the Russian Federation, under an agreement for gratuitous use (loan agreement), one party (the lender) undertakes to transfer or transfers an item for gratuitous temporary use to the other party (the borrower), and the latter undertakes to return the same item in the condition in which it received it, taking into account normal wear and tear or in contract condition.

The rules provided for in Article 607, paragraph 1 and paragraph 1 of paragraph 2 of Article 610, paragraphs 1 and 3 of Article 615, paragraph 2 of Article 621, paragraphs 1 and 3 of Article 623 of this Code are respectively applied to a contract for gratuitous use. according to which:

Enterprises and other property complexes, buildings, structures, equipment, vehicles and other things that do not lose their natural properties during the process of use (non-consumable things) can be leased. The law may establish types of property whose rental is not permitted. allowed or limited.

The lease agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the leased object. In the absence of this data in the contract, the condition regarding the object to be leased is considered not agreed upon by the parties, and the corresponding contract is not considered concluded.

The lease agreement is concluded for the period specified in the agreement. If the lease term is not specified in the agreement, the lease agreement is considered to be concluded for an indefinite period.

The tenant is obliged to use the leased property in accordance with the terms of the lease agreement, and if such conditions are not specified in the agreement, in accordance with the purpose of the property.

If the tenant does not use the property in accordance with the terms of the lease agreement or the purpose of the property, the lessor has the right to demand termination of the contract and compensation for losses.

That is, when concluding a Free Use Agreement, the provisions established for the Lease Agreement apply.

according to Art. 421 of the Civil Code of the Russian Federation Citizens and legal entities are free to enter into an agreement.

The parties may enter into an agreement, both provided for and not provided for by law or other legal acts. The parties may enter into an agreement that contains elements of various agreements provided for by law or other legal acts (mixed agreement).

The relations of the parties under a mixed contract are applied in the relevant parts to the rules on contracts, the elements of which are contained in the mixed contract, unless otherwise follows from the agreement of the parties or the essence of the mixed contract. The terms of the contract are determined at the discretion of the parties, except in cases where the content of the relevant condition is prescribed by law or other legal acts (Article 422).

By virtue of Art. 616 of the Civil Code of the Russian Federation The lessor is obliged to carry out, at his own expense, major repairs of the leased property, unless otherwise provided by law, other legal acts or the lease agreement. Major repairs must be carried out within the period established by the agreement, and if it is not determined by the agreement or is caused by urgent need, within a reasonable time. Violation by the lessor of the obligation to carry out major repairs gives the tenant the right, at his own discretion: to carry out major repairs provided for in the contract or caused by urgent need, and to recover from the lessor the cost of repairs or to offset it against the rent; to demand a corresponding reduction in rent; to demand termination of the contract and compensation for losses.

The tenant is obliged to maintain the property in good condition, carry out routine repairs at his own expense and bear the costs of maintaining the property, unless otherwise provided by law or the lease agreement.

Thus, you should draw up a mixed Agreement including all the necessary conditions, including the costs of maintaining the property.

I can provide a service for drawing up an Agreement taking into account the specifics of your circumstances, as well as advise on the successful conclusion of a transaction.

You can contact me on Skype regarding this issue. tamarafilatova0 or email. mail [email protected]

C respectfully F. Tamara