In that case, if an individual is registered as an individual entrepreneur, the question does not arise at all: Everyone understands that entrepreneurs can rent premises for offices, shops, warehouses or workshops - and can, if possible, rent out such real estate. But is registration with the Unified State Register of Enterprises required in order to enter into such agreements?

In reality, no. Art. 608 of the Civil Code of the Russian Federation states that property can be leased either by the owner, or by a person authorized by him, or by someone who, by virtue of law, is granted the right to act on behalf of the owner. The law no longer mentions any additional restrictions (for example, the need to have individual entrepreneur status and register with the Unified State Register of Individual Entrepreneurs) and does not establish any barriers.

Article 608 of the Civil Code of the Russian Federation. Landlord

The right to lease property belongs to its owner. Lessors can also be persons authorized by law or the owner to lease property.

The mere fact of leasing real estate of any type is not enough to talk about entrepreneurship. The Plenum of the RF Armed Forces in 2004, by resolution No. 23 concerning illegal entrepreneurship, clarified that if an individual has real estate, but it is personally in his possession given time is not needed - it has the right to use it, including for renting (clause 2 of the resolution). A similar position was expressed in paragraph 13 of the resolution of the Plenum of the RF Armed Forces No. 18 of 2006.

Thus, a one-time transaction is not enough to hold a citizen accountable for illegal business or to require him to urgently register with the Unified State Register of Individual Entrepreneurs. It is required that such transactions be systematic.

Can an individual be a landlord?

For organization

There is no direct ban on this. According to Article 130 and Article 213 of the Civil Code of the Russian Federation, a citizen has the right to own any property for which restrictions are not established by law - and to dispose of his property as he sees fit.

Accordingly, from the point of view of current legislation, there is no prohibition on leasing real estate from an individual to a legal entity - and is not expected in the foreseeable future.

For another individual

When asked if it is possible to rent non-residential premises to an individual, the answer from the legal standpoint is positive. The provisions of the Civil Code regarding the lease agreement do not in any way limit the subject composition of the participants in the legal relationship. Accordingly, there are no restrictions on agreements under which one citizen, who is not an individual entrepreneur, leases real estate to a second person, who also does not have entrepreneurial status, any real estate property - including non-residential ones.

The mere conclusion of a property lease agreement gives the tenant the right only to demand that the property be transferred to him. The question of what the tenant will do with it later is not considered by law, and no restrictions are placed. Accordingly, even if one citizen rented out a non-residential property to another, and he used it for illegal business, the agreement will still not be declared invalid.

Are there any restrictions?

The only legal limitation for renting is the need to pay taxes. No one has canceled personal income tax - and therefore if an individual rents out non-residential premises, he will need to pay:

• 13% - if he is not an individual entrepreneur;
• 6% – if the individual entrepreneur is “simplified”.

However, the Unified State Register of Real Estate, where real estate rights are recorded, does not know the division of citizens into individual entrepreneurs and non-individual entrepreneurs - in it the distinction is established only at the level of “individuals - organizations”. Therefore, the contract itself can be concluded without restrictions.

Is it possible to enter into an agreement as a tenant?

As for the question of whether an individual can rent non-residential premises, there are no restrictions here either. Moreover, Some of the non-residential real estate can also be used for personal purposes. For example, the law does not contain any prohibitions on a citizen renting a garage to house his personal car, which is not used for commercial activities.

Another thing is that the lease is clearly commercial real estate may raise questions from regulatory authorities - and even provoke an audit. But the law itself does not contain a ban on such actions.

Conclusion

Thus, having owned non-residential real estate, a citizen has the right to rent it out without registering as an individual entrepreneur in the Unified State Register of Individual Entrepreneurs. If the transaction was a one-time transaction and has no signs of systematicity, the law does not establish any obstacles.

Questions may arise only in cases where the object bears clear signs of a commercial purpose - but even in this situation there is no direct legal prohibition.

The right to lease property belongs to its owner (Civil Code of the Russian Federation). At the same time, a citizen can carry out the activity of leasing property as an individual who is not an individual entrepreneur (hereinafter also referred to as an individual entrepreneur), since the law does not contain a requirement to register an individual as an individual entrepreneur as a necessary condition for leasing property owned by him.

Entrepreneurial activity is an independent activity carried out at one's own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law (paragraph three of the Civil Code of the Russian Federation).

Individual cases of the sale of goods, performance of work, provision of services by a person not registered as an individual entrepreneur do not constitute an administrative offense provided for by the Code of Administrative Offenses of the Russian Federation, unless the quantity of goods, their assortment, volumes of work performed, services provided and other circumstances do not indicate that that this activity was aimed at systematically generating profit (resolution of the Plenum of the Supreme Court of the Russian Federation dated October 24, 2006 N 18 “On some issues that arise for courts when applying the Special Part”, resolution of the Supreme Court of the Russian Federation dated June 30, 2006 N 53-AD06-2) . In dated 02/08/2013 N ED-3-3/412@, the Federal Tax Service of Russia emphasized that the signs of entrepreneurial activity are of an evaluative nature; in accordance with them, it is possible to qualify the activity of an individual in leasing out their own property only if there is complete and comprehensive information about all the circumstances of his activities.

The implementation of entrepreneurial activity may be indicated, for example, by concluding an agreement for a period of more than one tax period (calendar year) or its extension for the next period, repeated receipt of income, repeated conclusion of lease agreements with the same legal entity, etc. (see, for example, Federal Tax Service of the Russian Federation for Moscow dated April 15, 2005 N 18-12/3/26639, FAS Volga-Vyatka District dated April 28, 2004 N A38-4668-5/85-2004). As law enforcement practice shows, when resolving this issue, factors such as the focus of a citizen’s actions on the systematic receipt of profit, the permanent nature of the activity of leasing property, and the acquisition of property for the purpose of leasing it are taken into account.

If the subject of the lease agreement is a premises not intended for the residence of citizens; and the owner of the premises regularly receives income from renting it out, there is a risk of recognizing such actions of a citizen as entrepreneurial activity and bringing him to administrative responsibility on the basis of the Code of Administrative Offenses of the Russian Federation with the imposition of a fine in the amount of 500 to 2000 rubles (see also the decisions of the Altai Regional Court dated 20.10. 2011 N 4а-634/2011, Supreme Court of the Republic of Tatarstan dated 02/16/2011 N 7а-138м).

However, the issue of qualifying actions for leasing non-residential premises as a citizen’s entrepreneurial activity can only be finally decided by the court, taking into account the totality of specific circumstances.

Prepared answer:

Expert of the Legal Consulting Service GARANT

Bakhtina Anastasia

Response quality control:

Reviewer of the Legal Consulting Service GARANT

Alexandrov Alexey

The material was prepared on the basis of individual written consultation provided as part of the Legal Consulting service.

If an organization rents premises from an individual (who is not an individual entrepreneur), then it is in relation to this individual lessor. That is, she must calculate personal income tax on income in the form of rent, withhold tax when paying income to an individual and transfer it to the budget (clause 2 of article 226, article 228 of the Tax Code of the Russian Federation). It is impossible to shift the payment of personal income tax to the lessor himself - an individual. And it doesn’t matter what will be written in the lease agreement with an individual. In any case, the personal income tax must be paid by the tenant - the organization (Letter of the Ministry of Finance of Russia dated August 27, 2015 No. 03-04-05/49369).

Personal income tax when leasing

Personal income tax on rent is calculated with each payment of income to an individual according to the following formula:

The personal income tax rate is:

• if the lessor is a resident of the Russian Federation - 13%;
• if the lessor is a non-resident of the Russian Federation - 30%.

And to an individual, the rent is transferred minus the withheld tax amount.

Payment of personal income tax to the budget

The tax withheld by the organization is transferred to the budget no later than the day following the day the rent is paid to the individual (clause 6 of Article 226 of the Tax Code of the Russian Federation).

BCC for personal income tax for rent - 182 1 01 02010 01 1000 110. That is, the same as when transferring personal income tax for employees of an organization.

Reporting when renting from an individual

For an individual landlord, you need to create a separate tax register for personal income tax and at the end of the year, in the general manner, submit a 2-NDFL certificate to the Federal Tax Service. It must reflect income in the form of rent, the amount of calculated, withheld and transferred to the personal income tax budget.

The income code in 2-NDFL when renting from an individual is 1400.

In addition, information on the individual lessor is included in the quarterly 6-NDFL report.

Insurance premiums when renting premises from an individual

The amount of rent paid to an individual is not subject to insurance contributions to the Pension Fund, Social Insurance Fund and Federal Compulsory Medical Insurance Fund (

Good afternoon In this article we will talk about the features of taxation of rental premises.

Today you will learn:

1. What rental taxes are provided for individual entrepreneurs;
2. How are rental taxes paid by the LLC;
3. What ways can you pay taxes?

Renting out premises is one of the “quiet” and profitable types of commercial activity. Under two conditions - the demand for real estate given its location and the availability of free funds for its purchase - you can ensure income for yourself with minimal risks for yourself.

An important aspect that an entrepreneur or organization should keep in mind when renting out real estate for temporary use is the issue of taxation. He shadows those who have the talent and courage to lead.

About the rental agreement

The only language that is recognized by tax authorities is the language of accurate, correctly drawn up documents. In our case we're talking about about the lease agreement. The rental amount specified in the contract is Starting point to calculate taxes.

The procedure for concluding a lease agreement is regulated by the Civil Code. If the lease agreement is concluded for less than a year, it is not subject to state registration.

It is impossible to legally rent out only some adjoining part of the premises. For example, a flight of stairs, an attic or a basement. The agreement between the tenant and the landlord comes into force only when the latter hands over the documentation and keys to the former.

Tax on rental premises for individual entrepreneurs

For the tax system, an important role is played by who the lessor is, that is, the one who rents out the premises: an individual, or, for example,.

An individual can also rent out premises without registering as an individual entrepreneur, but provided that this premises is residential (for example, a house or apartment). In this case, the individual transfers 13% of the rent to the budget. If an individual intends to rent out non-residential premises, he must register an individual entrepreneur.

Such conditions are explained by Russian legislation, which prohibits conducting business activities without state registration. If it is not customary to talk about entrepreneurship in relation to residential premises, then with non-residential premises everything is much stricter. If the fact of illegal commercial activity or tax evasion is established, the violator bears administrative, and in some cases, criminal liability.

So, if the premises are non-residential, you need to register an individual entrepreneur. An individual entrepreneur indicates at the registration stage the main type of his activity. If this is the rental of property, he also chooses the type of taxation acceptable to himself.

Taxes on rental premises for individual entrepreneurs under the simplified tax system

A simplified tax regime, or “simplified” tax regime, is characterized by the fact that an entrepreneur pays only one tax instead of several.

The simplified tax system for individual entrepreneurs has three options for transferring tax to the state:

• Object “income minus expenses”. A type of taxation that applies a rate of 15% on the amount of income remaining after deducting all related expenses. It is convenient to use if there are consistently large and documented expenses for the premises being rented out.

Example. The lease agreement states that utility payments for the premises are borne by the landlord; these costs may be indicated by him as expenses for maintaining the property. Consequently, the tax base can be reduced by this amount.

• Object "income". A tax system in which a tax rate of 6% is applied, and expenses are not taken into account when calculating the tax. It is convenient to use when expenses are very small or cannot be documented.

Since January 2016, the law on this regime has changed: now the tax rate depends on the decision of regional authorities. It can be even 1% for some categories of taxpayers.

• , in which not real, but estimated income is taken for taxation, and it is subject to a flat tax of 6%. Its peculiarity is that the entrepreneur’s expenses are not taken into account in any way; it will be impossible to reduce the tax base due to them.

A patent for renting property can be purchased for a period of up to one year, and then, if necessary, purchased for a new period. The cost of a patent can be easily calculated using the online calculator presented on the Federal Tax Service website.

Where does this figure come from? The calculator multiplies the estimated income depending on the region and business category by 6%. That is, when purchasing a patent, an entrepreneur automatically pays tax.

For example, an entrepreneur wants to rent out non-residential premises with an area of ​​50 m2, which he owns on the territory of the city of Moscow in the Konkovo ​​district. Purchasing a patent for this activity for a period of twelve months will cost sixty thousand rubles.

For comparison: a patent for renting out a premises of the same size in the Tver region for a year will cost a little more than twenty-five thousand.

Taxes on rental premises for LLC

A legal entity can apply a general taxation system or a simplified one. The latter regime is possible only if a number of conditions are met (less than one hundred employees, annual income less than one hundred and fifty million rubles, no branches, etc.).

If an enterprise operates under the simplified tax system, the rental tax payment system will be the same as for individual entrepreneurs. Only you need to submit your tax return not before April 30, but before March 31. There is no provision for a transition to the patent system for LLCs.

For an LLC, renting premises can be both the main and additional activities. This will determine how such income will be reflected in accounting entries - as income from sales or non-operating income.

When applying the general taxation regime, an enterprise pays tax on profits received for renting premises. The basic rate on it is 20%. 18% are allocated to the federal budget, 2% to the budget of the constituent entity of the Russian Federation where the company operates. This percentage is calculated from the actual profit, that is, after deducting expenses. The income tax return is submitted quarterly.

In addition, the company must pay 18% VAT to the state on each rental payment.

Methods of paying taxes

Previously, it was possible to pay taxes only at the post office, through a bank or through a bank terminal using the details from the receipt or the receipt itself. With all these methods, the receipt must be sent by the tax authority and be in the hands of the taxpayer.

Since relatively recently, the Federal Tax Service has been offering to use online service “Pay taxes” on the tax website. Here the taxpayer can fill out the receipts himself if the tax amount is known to him.

Moreover, the service offers to generate one of two documents:

• Payment order. Used only for non-cash payments. It is printed and submitted to the bank.
• Payment document. Used to pay tax in cash when it is printed and submitted to the bank. Also used for electronic payment. After the receipt is finalized, you can pay the tax online here through one of the banks that has an agreement with the tax service for this service.

The most convenient way to pay taxes is available only to owners of a personal account on the tax service website. These accounts can be opened for individuals, legal entities and individual entrepreneurs. Besides all important information on property, the status of settlements with the state - debts and overpayments, completed receipts are posted here. With their help, it is easy to pay taxes online through an intermediary bank.

Connect to personal account simple enough. You need to contact any tax authority - not necessarily at your place of residence or business registration. Within fifteen minutes you will be given a registration card with a login and password. The password is changed by the user independently after entering the Federal Tax Service website.

It will not be possible to obtain a password to your personal account online, since the site data belongs to the category of especially protected information.

received
fee 46%

1. You can lease it both on behalf of a sole proprietor and on behalf of an individual entrepreneur. But, since we are talking about non-residential premises and it is possible to establish signs of entrepreneurial activity (systematic nature, entrepreneurial risk) + the property is rented to a legal entity, I think it would be better if it is rented from an individual entrepreneur. In addition, under the simplified tax system, rental income will be taxed at 6%, and not 13%, as for individuals. But when renting from an individual entrepreneur, it will be necessary to make changes to the list of activities carried out (for example, OKVED code 70.20.2 “Renting out your own non-residential real estate”).

2. In order to bring to criminal liability under Art. 171 of the Criminal Code, the prosecution will have to prove the very fact of carrying out business activities without registration and causing major damage to the state - 1,500,000 rubles. It is also theoretically possible to be held accountable under Part 1 of Art. 14.1 of the Code of Administrative Offenses ((entails the imposition of an administrative fine in the amount of five hundred to two thousand rubles).

Therefore, if you are an individual entrepreneur using the simplified tax system, make changes to the register in terms of OKVED and pay a tax of 6% on income.

received
fee 27%

Hello!
In accordance with Article 18 of the Civil Code of the Russian Federation, citizens may own property; inherit and bequeath property; engage in business and any other activity not prohibited by law; create legal entities independently or jointly with other citizens and legal entities; make any transactions that do not contradict the law and participate in obligations; choose a place of residence; have the rights of authors of works of science, literature and art, inventions and other results of intellectual activity protected by law; have other property and personal non-property rights.

According to paragraph 4 of Art. 208 of the Tax Code of the Russian Federation to the income of individuals from sources in Russian Federation includes income received from leasing or other use of property located in the Russian Federation.

According to paragraph 3 of Article 210 of the Tax Code of the Russian Federation, for income for which the tax rate established by paragraph 1 of Article 224 of the Tax Code is provided, the tax base is determined as the monetary expression of such income subject to taxation, reduced by the amount of tax deductions provided for in Articles 218-221 of this Code , taking into account the features established by this chapter. The tax rate is set at 13 percent.

That is, you have the right to rent out property as an individual and you will need to pay 13% tax on the amount of income. One-time (non-systematic) leasing of property cannot be regarded as a business activity, and therefore cannot be qualified as an administrative offense (Article 14.1 of the Code of Administrative Offenses of the Russian Federation) or illegal business activity (Article 171 of the Criminal Code of the Russian Federation),

By virtue of Art. 2 of the Civil Code of the Russian Federation entrepreneurial activity is recognized as independent activity carried out at one’s own risk, aimed at systematically obtaining profit from the use of property, sale of goods, performance of work or provision of services by persons registered in this capacity in the manner prescribed by law.

If you rent out property to carry out business activities, that is, as an individual entrepreneur, then you should consider the following.

Entrepreneurial activity includes not only leasing property, but also preparatory actions, for example, carrying out repairs and construction work, search for potential tenants, which is confirmed by established judicial practice (Resolutions of the Federal Arbitration Courts of the West Siberian District dated December 16, 2009 N A70-4191/2009, the Central District dated August 31, 2009 N A64-6950/08, the East Siberian District dated September 09. 2009 N A33-6383/09, Central District dated 08/15/2007 N A36-2300/2006).
Thus, temporary non-use of property in business activities during the tax period, in particular, the absence of lease agreements, repairs of premises, etc., as well as the use of property (part of it) for the management needs of an individual entrepreneur, cannot in itself be considered as use of this property for purposes other than business activities.
Since Law N 2003-1 does not define the deadlines for submitting documents confirming the right of an individual entrepreneur to be exempt from the obligation to pay property tax for individuals, such documents must be submitted within a time frame that allows the tax authority to calculate the amount of property tax for individuals and send the taxpayer a tax return. notification of tax payment by August 1.
P verification of the actual use of property by individual entrepreneurs in business activities should be carried out by tax authorities as part of tax control.

at the rate of 6 percent.

In accordance with paragraph 3 of Art. 346.11 of the Tax Code of the Russian Federation, the use of a simplified taxation system by individual entrepreneurs provides for their exemption from the obligation to pay property tax for individuals in relation to property, used for business activities .

Thus, in the case of registration as an individual entrepreneur and payment of a single tax associated with the use of the simplified tax system, from income received from the provision of the premises in question for rent, You will not be a payer of personal property tax in relation to the specified premises.

At the same time, according to the regulatory authorities, in order to apply the right to exemption from property tax, an individual entrepreneur using the simplified tax system must submit to the tax authority:
- application for exemption from property tax in any form;
- documents confirming the use of real estate for business activities (in your case, such a document will be a lease agreement).
Such clarifications, in particular, are contained in the Letter of the Ministry of Finance of Russia dated 02/01/2010 No. 03-05-04-01/06.

According to Art. 346.31 of the Tax Code of the Russian Federation, the single tax rate is set at 15 percent of the amount of imputed income. HOWEVER, the tax system in the form of a single tax on imputed incomeis installed for certain types of activities that are specified in Article 346.26 of the Tax Code of the Russian Federation.

Thus, since an individual entrepreneur can be exempt from paying property tax for an individual, it will be most profitable to rent out property as an individual entrepreneur using the simplified tax system.

Sincerely, F. Tamara

United Ngaol

received
fee 27%

In cases where a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, temporarily leased it or rented it out and as a result of such a civil transaction received income (including in a large or especially large amount), what he did does not entail criminal liability for illegal business o (Position of the Plenum of the Supreme Court of the Russian Federation dated November 18, 2004 N 23 “On judicial practice in cases of illegal entrepreneurship...”). In other words, if an individual rents out excess property, then it is not necessary to register as an individual entrepreneur.

Citizen not registered as an individual entrepreneur, pays only personal income tax on rent at a rate of 13% (if the rent payer has not withheld personal income tax from the income paid, as a tax agent, then the citizen will pay himself). He remains obligated to pay property tax for individuals (it is local and is paid once a year, no later than November 1 of the year following the year for which the tax was calculated; established by Law N2003-1-FZ "On taxes on property of individuals" and Moscow Law No. 47 “On rates of property tax for individuals”).

Citizen, registered individual entrepreneur by type of activity "renting out your own residential real estate" OKVED code 70.20.1., located on common system taxation, pays personal income tax on rent at a rate of 13%. The entrepreneur will need to submit a declaration to the tax authority in Form 4-NDFL within five days after the expiration of a month from the date of receipt of rental income (clause 7 of Article 227 of the Tax Code of the Russian Federation), and then make advance payments on the basis of tax notices (clause 9 Article 227 of the Tax Code of the Russian Federation). Based on the results of the year - submit a declaration in form 3-NDFL no later than April 30 of the year following the previous year (Article 216, paragraph 1 of Article 229 of the Tax Code of the Russian Federation).

Under the general system, when renting out non-residential premises, an entrepreneur is required to pay VAT. An individual entrepreneur has the right to be exempt from fulfilling taxpayer obligations related to the calculation and payment of tax if, over the previous 3 consecutive calendar months, the amount of revenue from the provision of non-residential premises for temporary use, excluding VAT, did not exceed a total of 2 million rubles. (Clause 1 of Article 145 of the Tax Code of the Russian Federation). Operations involving the provision of residential premises for use are exempt from VAT (clause 10, clause 2, article 149 of the Tax Code of the Russian Federation).

The obligation to pay property tax for individuals remains.

All entrepreneurs are required to pay insurance premiums to state extra-budgetary funds "for oneself": Pension Fund (for compulsory pension insurance), Compulsory Medical Insurance Fund (for compulsory health insurance); for hired workers (if any): Pension Fund + Social Insurance Fund + Compulsory Medical Insurance Fund (in accordance with Law No. 212-FZ “On Insurance Contributions...” .

In 2012, individual entrepreneurs are required to pay “for themselves” contributions of 17,208.25 rubles. (if the payer was born in 1966 and older: contribution to the Pension Fund - 14386.32 rubles, the entire amount is paid for the insurance part; if the payer was born in 1967 and younger, then contributions to the Pension Fund for the insurance part are 11066.40 rubles, for the funded part - 3319.92 rubles .; to the Federal Compulsory Health Insurance Fund (FFOMS) - 2821.93 rubles; contributions to the Territorial Compulsory Health Insurance Fund are not paid in 2012.

Citizen, registered individual entrepreneur by type of activity"renting out your own residential real estate" OKVED code 70.20.1., transferable on the simplified tax system, should imagine that the simplified tax system is used in 3 variants:

With the object of taxation “income”, the tax rate is 6% (clause 1 of article 346.20 of the Tax Code of the Russian Federation);

The simplified tax system with the object of taxation is “income minus expenses”. The laws of the constituent entities of the Russian Federation may establish rates from 5 to 15% depending on the categories of taxpayers; the amounts of paid insurance premiums (for example, contributions for “yourself” to the Pension Fund of the Russian Federation, the Compulsory Medical Insurance Fund) can be included in expenses (clause 7, clause 1, article 346.16 of the Tax Code of the Russian Federation);

Simplified tax system based on a patent - when transferring for temporary possession and (or) use of garages, own residential premises, as well as residential premises built on country houses land plots(Clause 56, Clause 2, Article 346.25.1 of the Tax Code of the Russian Federation). The amount of the patent is fixed, calculated from the potential annual income established by the subject of the Russian Federation. Part of the patent can be reduced by the amount of insurance contributions to extra-budgetary funds paid by the entrepreneur both for himself and for his employees, taking into account the features set out in clause 10 of Article 346.25 .1 Tax Code of the Russian Federation.

The use of the simplified tax system exempts individual entrepreneurs from paying property tax for individuals on property used for rental (clause 3 of article 346.11 of the Tax Code of the Russian Federation). The deadline for submitting an application and documents confirming the actual use of property for exemption is not specified, so it turns out that tax authorities send a notice of payment faster than the individual entrepreneur submits the application and documents for exemption. Based on the application and documents submitted by the entrepreneur, the tax authorities issue a refund (offset) of the overpaid tax.

Restriction on the use of the simplified tax system - annual income from the rental of property should not exceed 60 million rubles per year.

The obligation to pay insurance contributions to state extra-budgetary funds for individual entrepreneurs on the simplified tax system for “himself” and for employees (if any) exists and does not depend on the applied taxation regime.

Good evening!

on question 1 and on part 2 of question 2 - in accordance with the letter of the Ministry of Finance of the Russian Federation dated November 17, 2009 N 03-04-05-01/808

In accordance with Article 2 of the Civil Code of the Russian Federation, activities must be carried out independently, at your own risk, and be aimed at systematically generating profit.

In the absence of the above signs, an individual has the right to enter into an agreement to lease property without registering as an individual entrepreneur.

on the second question - the previous lawyer answered in great detail. You need to consider all payments and the rental amount.

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Druzhkin Maxim

Lawyer, Moscow

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Hello! In the 2 lease cases under consideration, depending on the status of the lessor, it is necessary to take into account a number of factors affecting the obligations for calculating taxes. This is the percentage of tax itself, the obligation to pay it directly by the lessor or the tax agent of an individual - the lessor, and the opportunity to also use a reduction in the tax base for expenses when purchasing property. Also in this matter, you should pay attention to the payment of taxes upon the subsequent sale of rental property.

I would like to immediately point out that the previous answers contained the erroneous opinion that in this case there is no need to pay tax when renting out real estate; in this position, this tax on income from renting out property was mistakenly confused with property tax.

1. In accordance with paragraph 1 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right to own, use and dispose of his property.

According to Art. 608 of the Civil Code of the Russian Federation, the owner of the property has the right to lease it.

Based on paragraph 1 of Art. 23 of the Civil Code of the Russian Federation, a citizen has the right to engage in entrepreneurial activity without forming a legal entity from the moment of state registration as an individual entrepreneur.

The Federal Tax Service of Russia for Moscow in Letter dated March 30, 2007 N 28-10/28916 indicates that the following facts may indicate the presence of signs of entrepreneurial activity in a citizen’s actions:

Manufacture or acquisition of property for the purpose of subsequent profit from its use or sale;

Accounting for business transactions related to transactions;

The interconnectedness of all transactions made by a citizen in a certain period of time;

Stable connections with sellers, buyers, and other counterparties.

In addition, in accordance with the All-Russian Classifier of Types of Economic Activities OK 029-2001 (NACE Rev. 1), approved by Decree of the State Standard of Russia dated November 6, 2001 N 454-st, economic activity takes place when resources, equipment, labor, technology , raw materials, materials, energy (information resources) are combined into a production process aimed at producing products (providing services). Economic activity is characterized by production costs, the production process and the output of products (provision of services).

If these signs are present, an individual is required to register as an entrepreneur without forming a legal entity.

This position is confirmed by Letters of the Ministry of Finance of Russia dated January 14, 2005 N 03-05-01-05/3 and dated September 22, 2006 N 03-05-01-03/125, as well as the Letter of the Federal Tax Service of Russia for Moscow dated January 25, 2008 N 18-12/3/005988.

Thus, according to the regulatory authorities, if operations for leasing (renting) property or operations for buying and selling property are carried out in the presence of signs of economic and entrepreneurial activity, an individual is obliged to register with the tax authorities as an entrepreneur without forming a legal entity.

The Plenum of the Supreme Court of the Russian Federation in paragraph 2 of Resolution No. 23 dated November 18, 2004 indicated that in cases where a person not registered as an individual entrepreneur acquired residential premises or other real estate for personal needs or received it by inheritance or under a gift agreement, but due to the lack of need to use this property, he temporarily leased it or rented it out and as a result of such a civil transaction received income (including in a large or especially large amount), what he did does not entail liability for illegal entrepreneurship.

Thus, if an individual temporarily rents out non-residential premises, but his activities do not contain signs of entrepreneurial activity, the person is not required to register as an individual entrepreneur.

1. According to paragraph 2 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and interests protected by law of other persons, including alienating his property into the ownership of other persons, transferring to them, while remaining the owner, the right to own, use and dispose of property, pledge the property and encumber it in other ways, dispose of it in another way.

Taxation of income received by individuals is carried out in the manner prescribed by Chapter. 23 of the Tax Code of the Russian Federation.

In paragraph 1 of Art. 207 of the Tax Code of the Russian Federation states that personal income tax payers are individuals who are tax residents of the Russian Federation, as well as individuals receiving income from sources in Russia who are not tax residents of the Russian Federation.

According to paragraphs. 4 and 10 p. 1 art. 208 of the Tax Code of the Russian Federation, income from sources in the Russian Federation includes income received from leasing or other use of property located in Russia.

In accordance with paragraph 1 of Art. 226 of the Tax Code of the Russian Federation, Russian organizations, individual entrepreneurs, notaries engaged in private practice, lawyers who have established law offices, as well as separate divisions of foreign organizations in the Russian Federation, from which or as a result of relations with which the taxpayer received income, are required to calculate, withhold from the taxpayer and pay personal income tax amount.

The exception is income for which the calculation and payment of tax are carried out in accordance with Art. Art. 214.1, 214.3, 214.4, 227, 227.1 and 228 of the Tax Code of the Russian Federation.

Thus, an organization - a tenant of non-residential premises, making payments under a lease agreement to an individual - the lessor, who is not an individual entrepreneur, is obliged to calculate, withhold from the taxpayer and pay to the budget the amount of personal income tax on the rent amounts.

Based on the above, an individual entrepreneur paying rent to an individual for premises rented from him, is recognized as a tax agent in relation to such income of an individual and, accordingly, must fulfill the duties of calculating, withholding and transferring to the budget personal income tax in the manner prescribed by Art. 226 of the Tax Code of the Russian Federation, as well as upon submission to the tax authority at the place of registration in accordance with clause 2 of Art. 230 of the Tax Code of the Russian Federation information on the income of an individual and the amounts of taxes accrued, withheld and transferred to the budget system of the Russian Federation. This position is confirmed by the letter of the Ministry of Finance of Russia dated July 20, 2012 N 03-04-05/3-889).

1. entrepreneurial activity for the lease of apartments and non-residential premises for offices and shops of an individual entrepreneur applying a simplified taxation system, the type of economic activity of which, indicated in the Unified State Register of Individual Entrepreneurs, is the rental of their own real estate, is not subject to taxation with a single tax on imputed income . At the same time, income from activities related to the lease of apartments and non-residential premises for offices and shops is also not subject to taxation on personal income tax (clause 24 of Article 217 of the Code). (Letter of the Ministry of Finance of the Russian Federation dated December 5, 2011 N 03-11-11/310))

In accordance with Art. 346.20 of the Tax Code of the Russian Federation, in the case of a simplified taxation system (STS), if the object of taxation is income, the tax rate is established at the rate of 6 percent.

Taxpayers who apply the simplified taxation system and who have chosen income reduced by the amount of expenses as an object of taxation, when determining the tax base, take into account the expenses provided for in paragraph 1 of Art. 346.16 of the Tax Code of the Russian Federation, subject to their compliance with the criteria specified in paragraph 1 of Art. 252 of the Code.

Based on paragraphs. 1 clause 1 art. 346.16 of the Code, when determining the object of taxation, taxpayers have the right to take into account expenses for the acquisition, construction and production of fixed assets, as well as for the completion, additional equipment, reconstruction, modernization and technical re-equipment of fixed assets (taking into account the provisions of paragraphs 3 and 4 of Article 346.16 of the Tax Code) .

If an individual acquired ownership of a fixed asset (non-residential premises) before state registration as an individual entrepreneur, then he was not a taxpayer engaged in business activities, therefore, the costs of acquiring a fixed asset when an individual entrepreneur applies the simplified taxation system should not be taken into account.

At the same time, the costs of repairing the specified premises, carried out during the period of application of the simplified taxation system, can be taken into account when determining the tax base on the basis of paragraphs. 3 p. 1 art. 346.16 of the Code, and the costs of its maintenance in the form of utility bills - on the basis of paragraphs. 5 clause 1 of the said article and art. 254 Code.

At the same time, according to paragraph. 2 clause 17.1 art. 217 of the Tax Code of the Russian Federation, the provisions of this paragraph do not apply to income received by individuals from the sale of property directly used by individual entrepreneurs in business activities.

Thus, income received from the sale of non-residential premises, which were directly used in business activities, are subject to inclusion in the tax base for personal income tax. (Letter of the Ministry of Finance of Russia dated 06/09/2012 N 03-04-05/3-716)) .

Therefore, during the subsequent sale of property leased, it is necessary to take into account that if you do not register an individual entrepreneur and simply rent out non-residential premises, then when selling this property, which has been owned for more than 3 years, you do not need to pay personal income tax. If you register an individual entrepreneur, then when selling such property, its value should be included in the tax base.

At the same time, in accordance with Art. 41 of the Code, income is recognized as an economic benefit in monetary or in-kind form, taken into account if it is possible to assess it and to the extent that such benefit can be assessed, and determined in accordance with the chapters “Individual Income Tax” and “Organizational Income Tax” Code.

According to paragraph 1 of Art. 572 of the Civil Code of the Russian Federation, under a gift agreement, one party (the donor) gratuitously transfers or undertakes to transfer to the other party (the donee) an item of ownership or a property right (claim) to himself or to a third party, or releases or undertakes to release it from a property obligation to himself or to a third party.

Based on the above and taking into account the principle of determining income established in Art. 41 of the Code, when donating real estate, the donor does not have income (economic benefit) subject to personal income tax. (Letter of the Ministry of Finance of the Russian Federation dated November 2, 2011 N 03-04-05/3-837))

Taking into account the above, if you do not register an individual entrepreneur, then the lessor (individual entrepreneur or legal entity), being a tax agent, will calculate your personal income tax - 13% of the income received from the transaction and pay it. Also, after 3 years from the date of acquisition of ownership, it will be possible to sell the property without paying personal income tax on the sale amount.

If you register an individual entrepreneur, then according to the type of activity “renting out your own residential real estate”, OKVED code 70.20.1., an individual entrepreneur according to the simplified tax system will have the object of taxation “income”, at a tax rate of 6% (clause 1 of article 346.20 of the Tax Code of the Russian Federation); with the object of taxation “income minus expenses” - 15%, while the tax base can be reduced by the cost of fixed assets - acquired property.

I also want to offer another option, which may be less tax-intensive.

In accordance with paragraph 1 of Art. 1005 of the Civil Code of the Russian Federation, under an agency agreement, one party (agent) undertakes, for a fee, to perform legal and other actions on behalf of the other party (principal) on its own behalf, but at the expense of the principal or on behalf and at the expense of the principal.

Under a transaction made by an agent with a third party on his own behalf and at the expense of the principal, the agent acquires rights and becomes obligated, even if the principal was named in the transaction or entered into direct relations with the third party for the execution of the transaction.

Article 1011 of the Civil Code of the Russian Federation establishes that if an agent acts on his own behalf, but at the expense of the principal, then the rules provided for in Ch. 51 “Commission” of the Civil Code of the Russian Federation, if these rules do not contradict the provisions of this chapter of the Civil Code of the Russian Federation or the essence of the agency agreement.

Thus, the subject of the agency agreement is any relationship between the agent and third parties in the interests of the principal.

According to paragraphs. 9 clause 1 art. 251 of the Code, when determining the tax base, income in the form of property (including cash), received by a commission agent, agent and (or) other attorney in connection with the fulfillment of obligations under a commission agreement, agency agreement or other similar agreement, as well as for reimbursement of expenses incurred by the commission agent, agent and (or) other attorney for the principal, principal and (or) another principal, if such costs are not subject to inclusion in the expenses of the commission agent, agent and (or) other attorney in accordance with the terms of the concluded agreements. The indicated income does not include commission, agency or other similar remuneration.

Taking into account the above, subject to the above conditions for a transaction with third parties for an individual entrepreneur - agent applying the simplified taxation system, only agency fees are taken into account as part of income when determining the object of taxation.

The only thing that needs to be taken into account in this case is that, according to paragraph 5 of Art. 346.11 of the Tax Code, individual entrepreneurs using the simplified taxation system are not exempt from performing the duties of tax agents provided for by the Tax Code.

In accordance with paragraphs 1 and 2 of Art. 226 of the Code, individual entrepreneurs who are the source of payment of income to taxpayers are recognized as tax agents in relation to taxpayers and are obliged to calculate, withhold and transfer to the budget the amount of personal income tax on such income of taxpayers.

So, look at what pros and cons to take. When registering an individual entrepreneur, do not forget about the obligation to independently pay social taxes, to the Social Insurance Fund, pension fund, and the Compulsory Medical Insurance Fund.

Have a nice day!

1. In what cases is it permissible to do this on behalf of an Individual, and in what cases only on behalf of an individual entrepreneur? What are the tax risks under these two options? Can the option of surrendering on behalf of an individual be considered illegal business under the Criminal Code of the Russian Federation?

The presence of signs of entrepreneurial activity in a citizen’s actions may be evidenced, in particular, by the following facts:
- production or acquisition of property for the purpose of subsequent profit from its use or sale;
- economic accounting of operations related to transactions;
- the interconnectedness of all transactions made by a citizen in a certain period of time;
- stable relationships with sellers, buyers, and other counterparties (see letters of the Ministry of Finance of the Russian Federation dated November 17, 2009 N 03-04-05-01/808, dated 09.22.2006 N 03-05-01-03/125, dated January 14, 2005 N 03-05-01-05/3, Federal Tax Service of the Russian Federation for Moscow dated 01/25/2008 N 18-12/3/005988, dated 03/30/2007 N 28-10/28916).

Since the above-mentioned signs will be present in the actions of a citizen, an individual in this case is obliged to register as an entrepreneur without forming a legal entity.

Otherwise, the citizen will be held administratively liable for carrying out business activities without state registration under Part 1 of Art. 14.1 Code of Administrative Offenses of the Russian Federation and criminal under Art. 198 of the Criminal Code of the Russian Federation in case of tax evasion (if the amount of taxes and (or) fees has not been paid, amounting to more than six hundred thousand rubles for a period within three financial years in a row, provided that the share of unpaid taxes and (or) fees exceeds 10 percent of the due payment of taxes and (or) fees, or exceeding one million eight hundred thousand rubles). If, in the situation under consideration, the property was initially acquired to generate income from renting it out, the citizen may be prosecuted under Art. 171 of the Criminal Code of the Russian Federation (when receiving income in an amount exceeding one million five hundred thousand rubles).
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2. Which option for extracting income from real estate is more profitable in a financial sense: compare the option of an individual entrepreneur under different tax regimes and an individual (if permissible), under alternative assumptions that the initial investment (purchase/reconstruction) was made from an individual entrepreneur or from an individual?

I am considering the option only for individual entrepreneurs.

An individual entrepreneur can apply OSN, simplified tax system: “income”, “income minus expenses”, patent, UTII

UTII: there is none in Moscow

the most unprofitable, since you will need to pay property tax, income tax, VAT, etc.

Simplified tax system: “income”, “income minus expenses”, patent:

The use of a simplified tax system by organizations provides for their exemption from the obligation to pay income tax, property tax of organizations, value added tax (except in some cases) (clause 2 of Article 346.11 of the Tax Code of the Russian Federation).

I’ll start with a patent: it can only be used when transferring for temporary possession and (or) use of garages, one’s own residential premises, as well as residential premises built on dacha land plots. Accordingly, it does not apply when leasing commercial real estate.

“income” or “income reduced by the amount of expenses”: it is more expedient to use them. Which tax object to choose depends on the percentage of income and expenses.

If the expected expenses are less than 66.66% of the total expected income, then it is better to simply select “income” and pay a single tax of 6% on the amount of income.

Otherwise, it is better to choose “income reduced by expenses” and pay 15% of the difference.

In some cases, it is more advisable to choose the second, since it is often possible to “close” income with expenses; the list of them is limited in Art. 346.16 of the Tax Code of the Russian Federation, and losses of previous years (clause 7 of Article 346.18 of the Tax Code of the Russian Federation), such expenses can include, for example, expenses for the acquisition of fixed assets, interest on credits/loans.

In this regard, it is better to register as an individual entrepreneur and then purchase real estate, then the costs of its acquisition will immediately appear in accounting.

In reality, if you are not going to register the agreement with the Registration Chamber, you can submit it as an individual.

In this case, it will be possible to identify the fact of non-payment of tax only through a complaint from a well-wisher.

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