Enterprise - supplier of the leased item

1 - conclusion of a leasing agreement

2 - payment for delivery of the leased item

3-delivery of the leased item

4-payment for property leasing

Leasing payments

Leasing payments mean the total amount of payments under the leasing agreement for the entire term of the leasing agreement, which includes reimbursement of the lessor's costs associated with the acquisition and transfer of the leased asset to the lessee, reimbursement of costs associated with the provision of other services provided for in the leasing agreement, as well as the lessor's income. The total amount of the leasing agreement may include the redemption price of the leased asset if the leasing agreement provides for the transfer of ownership of the leased asset to the lessee.

The amount, method of making and frequency of leasing payments are determined by the leasing agreement, taking into account this Federal Law.

If the lessee and the lessor make payments for lease payments using products (in kind) produced using the leased asset, the price for such products is determined by agreement of the parties to the leasing agreement.

Unless otherwise provided by the leasing agreement, the amount of lease payments may be changed by agreement of the parties within the time limits provided for in this agreement, but not more than once every three months.

The lessee's obligations to pay lease payments begin from the moment the lessee begins using the leased asset, unless otherwise provided by the leasing agreement.

For profit tax purposes, leasing payments are classified, in accordance with the legislation on taxes and fees, as expenses associated with production and (or) sales.

Subleasing is a type of sublease of a leased asset, in which the lessee under a leasing agreement transfers to third parties (lessees under a subleasing agreement) for possession and use for a fee and for a period in accordance with the terms of the subleasing agreement, the property previously received from the lessor under the leasing agreement and constituting the leasing object .

When transferring property into subleasing, the right of claim against the seller passes to the lessee under a subleasing agreement.

When transferring the leased asset for subleasing, the consent of the lessor in writing is required.

Leasing entities are:

1) lessor - an individual or legal entity who, at the expense of borrowed and (or) own funds, acquires ownership of property during the implementation of a leasing agreement and provides it as a leased asset to the lessee for a certain fee, for a certain period and on certain conditions for temporary possession and use with transfer or without transfer to the lessee of ownership of the leased asset;

2) lessee - an individual or legal entity who, in accordance with the leasing agreement, is obliged to accept the leased asset for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement;

3) salesman - an individual or legal entity who, in accordance with a purchase and sale agreement with the lessor, sells to the lessor within a specified period the property that is the subject of leasing. The seller is obliged to transfer the leased item to the lessor or lessee in accordance with the terms of the purchase and sale agreement. The seller can simultaneously act as a lessee within the same leasing legal relationship.

The functions of a seller in the leasing services market are most often performed by enterprises that manufacture property, but these can be companies engaged in the wholesale trade of machinery or equipment.

The three categories indicated above are the main, “classic” leasing entities. In addition to them, there may also be indirect participants in the leasing transaction: banks and other financial institutions (provide lessors with borrowed funds necessary to purchase property); brokerage firms (search for partners, provide information to other market participants, and other intermediary functions); consulting firms specializing in leasing.

Subject of leasing There can be any non-consumable things, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property that can be used for business activities. The subject of leasing cannot be land plots and other natural objects, as well as property that is prohibited for free circulation by federal laws or for which a special circulation procedure has been established.

Regulatory framework and definition of leasing

Let's look at how to make transactions when leasing , But first, let’s determine what laws govern this operation. Leasing is a financial lease and is described in paragraph 6 of Chapter. 34 of the Civil Code of the Russian Federation, and is also regulated by the Law “On Financial Leases” dated October 29, 1998 No. 164-FZ. Accounting for leasing transactions is carried out in accordance with the order of the Ministry of Finance of Russia “On the reflection in accounting of transactions under a leasing agreement” dated February 17, 1997 No. 15.

ATTENTION! Order of the Ministry of Finance dated 02/17/1997 No. 15 loses force as of 01/01/2022. Starting from this period, leasing accounting transactions must be taken into account in accordance with FAS 25/2018 “Lease Accounting”, approved. by order of the Ministry of Finance dated October 16, 2018. The standard can be applied earlier by registering this fact in the enterprise’s accounting policy.

To briefly describe the essence of leasing, one party to the transaction (the lessor) buys property from an agreed seller for the second party to the transaction (the lessee) and receives money for this service, transferring the property into the possession of the lessee for a certain period. After this period, the property can be purchased by the lessee.

The specified property is in the possession of the lessor and is recorded on its balance sheet. However, the terms of the leasing agreement may provide for accounting of the leased property on the balance sheet of the other party to the transaction, that is, the lessee.

An example of calculating a leasing agreement

The total amount of the leasing agreement is RUB 751,500.00, including VAT 20% - RUB 125,250.00. Initial payment (advance payment) - 150,000.00 rubles, including VAT 20% - 25,000.00 rubles. Leasing term - 2 years (24 months + the last month the redemption price is paid), redemption price - 1,500.00 rubles, including VAT 20% - 250 rubles. Read about what the redemption value of a leased asset is.. Monthly payment is (751,500.00 - 1,500− 150 000,00 ) / 24 = 25,000.00 rubles, including VAT 20% - 4,166.67 rubles.

It is worth noting that there is no single standard for a leasing agreement, so the advance payment can also be counted as the first monthly lease payment or towards several monthly lease payments. These conditions must be clearly stated in the leasing agreement.

In the future, we will use the conditions from this example to describe accounting entries.

Accounting entries for the lessee, property on the lessee’s balance sheet

Let's consider an example of leasing accounting if the property is on the balance sheet of the lessee and its redemption value is paid separately in the last month of the lease.

In this case, the leasing transactions for the lessee will be as follows:

1. The leased item arrived to the lessee:

2. From the 1st day following the month of receipt of the leased asset, depreciation is calculated by posting

Dt 20 (23,25,26, etc.) Kt 02 “depreciation of leased property”

Let's assume that the useful life of the leased asset is 60 months. Then the amount of monthly depreciation will be 10,437.50 (626,250 / 60 months).

For transactions on depreciation of fixed assets and options for calculating depreciation, see.

3. Since, according to the terms of the example under the leasing agreement, the buyer pays the down payment, the postings will be as follows:

The VAT amount can be deducted on the received advance invoice, or you can not. In this case, if it is more profitable to defer the VAT deduction, the entries in bold italics do not need to be made.

4. Monthly accounting entries for leasing on the lessee’s balance sheet are as follows:

Debit	Credit	Sum	Content
76 "Rental obligations"		25 000	monthly payment taken into account
76 "Debt on leasing payments"	51	25 000	monthly payment paid to the lessor
68 "VAT"	19	4 166,67	accepted for deduction of VAT regarding the leasing payment
76 VA	68 "VAT"	1 041,67	VAT has been restored from the advance payment (25,000 VAT accepted for deduction on the advance invoice / 24 months)

If VAT on the advance invoice was not accepted for deduction, then the posting in bold italics does not need to be made.

Redemption by the lessee of property on its balance sheet

Let's consider the transactions for the redemption of the leased asset.

Debit	Credit	Sum	Content
76 "Lease obligations"	51 "Current accounts"	1 500	the redemption value of the leased object is listed
68 "VAT"	19	250
02 "Depreciation of leased property"	02 "Depreciation of fixed assets"	250 500	amount of accumulated depreciation (10,437.50 × 24 months)
01 "OS"	01 "Leased property"	626 250	fixed assets transferred from leased to owned

As already mentioned in the example, there may also be contracts where the redemption amount is not allocated separately, but is included in the monthly lease payments. In this case, a controversial question arises about the date of acceptance of VAT for deduction from the purchase price: is it possible to accept VAT for deduction in full on a monthly basis from leasing payments or is it necessary to accept part of the VAT for deduction only after the purchase of the leased property. Letters from the Ministry of Finance of the Russian Federation dated November 15, 2004 No. 03-04-11/203 and dated November 9, 2005 No. 03-03-04/1/348 indicate that VAT can be deducted in those tax periods in which lease payments are paid . Thus, if the agreement does not highlight the redemption value of the leased asset, the accounting entries for the lease redemption on the lessee’s balance sheet will be similar to the example considered, where the redemption value is highlighted.

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Postings of the lessee, if the property is on the balance sheet of the lessor

Let's consider the same example, but now the leased item is on the lessor's balance sheet.

Debit	Credit	Sum	Content
001 "Leased OS"		751 500	leased property is registered off balance sheet
76 "Debt on leasing payments"	51	150 000	down payment paid
68	76.VA	25 000	VAT allocated from advance payment
20 (23,25...)	76 "Debt on leasing payments"	20 833,33	monthly payment included in expenses
19	76 "Debt on leasing payments)	4 166,67	VAT is taken into account regarding the leasing payment
76 "Debt on leasing payments	51	25 000	advance payment transferred to the lessor
76 VA	68 "VAT"	1 041,66	VAT has been restored from the advance payment

If the advance invoice issued for prepayment under a leasing agreement does not include VAT for deduction, then the entries in bold italics do not need to be made.

In this case, depreciation is not accrued.

Debit	Credit	Sum	Content
	001 "Leased OS"	751 500	leased property was written off off-balance sheet due to the expiration of the leasing agreement
76 "Rental obligations"	51	1 500	the purchase price of the leased property is listed
10 "Materials"	76 "Rental obligations"	1 250	leased property was accepted for accounting at redemption value as part of inventory
19	76 "Rental obligations"	250	VAT included
68 "VAT"	19	250	VAT on the redemption price is deductible

Accounting for a leasing agreement with the lessor

Let's look at an example of leasing transactions on the lessor's balance sheet . Let the property purchased for leasing be on the balance sheet of the lessor. Let's take the numbers again from the example above.

Let's assume that the leased object was purchased by the lessor for 450,000 thousand rubles. (including VAT 75,000). useful life 60 months. Depreciation is calculated using the straight-line method and amounts to RUB 6,250. ((450,000 - 75,000) / 60 months)

The purchase and commissioning operations are as follows:

Accounting for leasing payments:

Now let’s consider the process of buying out leased property from the lessor, if he is also the balance holder of this property.

Let's consider accounting with the lessor if the property is included on the lessee's balance sheet.

Acquisition, payment and commissioning are no different from the case when the lessor is the balance holder.

There is no need to accrue depreciation on the leased asset - based on the terms of the leasing agreement, it must be accrued by the lessee (clause 50 of the Guidelines for accounting of fixed assets).
The transfer of the leased object to the lessee is usually reflected in the following order:

In this case, the costs recorded on account 97 can be recognized as expenses for ordinary activities as income in the form of leasing payments is recognized through a reasonable distribution between reporting periods (for example, in proportion to leasing payments recognized in income) (clause 5, 19 PBU 10/99 "Expenses of the organization").

The posting in the income generation period will be as follows: Dt 20 (23.25...) Kt 97.

Let's consider accounting for monthly lease payments:

Debit	Credit	Sum	Content
51	62	150 000	an advance has been received
62	90	150 000	the advance is recognized in the amount of income
90 "VAT"	68 "VAT"	25 000	VAT charged
20	97	75 000	part of the cost of the leased object is recognized as expenses in proportion to recognized income (150,000 × 100 / 750,000 = 20% × 375,000)
51	62	25 000	monthly payment has been received into your account
62	90	25 000	income is recognized in the amount of the lease payment
90 "VAT"	68 "VAT"	4 166,67	VAT charged
20	97	12 500	part of the cost of the leased object is recognized as expenses in proportion to recognized income (25,000 × 100 / 750,000= 3.33% × 375,000)

The redemption of leased property is registered with the following entries:

Debit	Credit	Sum	Content
62	90	1 500	income is recognized in the amount of the redemption price
90 "VAT"	68 "VAT"	250	VAT charged
20	97	75 000	the initial cost of the leased asset not written off at the time of redemption is reflected (12,500 × 24 - 375,000)
51	62	1 500	the redemption price of the lease was credited to the account
	011	375 000	the leased object is written off balance sheet

If the redemption value is not separately allocated in the leasing agreement, then the redemption of the leased asset, subject to payment of all payments, is formalized by a single write-off from off-balance sheet account 011 “Fixed assets leased” in the amount of the lessor’s costs excluding VAT.

Features of car accounting in leasing

Let's say an organization has leased a car and it is on the balance sheet of the lessee - the postings in this case are similar to those given above. Also, if the lessor is the balance holder of the leased car, there will be no changes in the postings. That is, a leased car is taken into account for accounting purposes in the same way as other property. The only issue that is added is the payment of transport tax, as well as compulsory MTPL and CASCO insurance.

JSC "BKR-Intercom-Audit"

The materials were prepared by a group of consultants and methodologists of JSC "BKR-Intercom-Audit"

Let's consider the main definitions given in Article 2 of Law No. 164-FZ:

« leasing - a set of economic and legal relations arising in connection with the implementation of a leasing agreement, including the acquisition of the leased asset;

leasing agreement - an agreement under which the lessor (hereinafter referred to as the lessor) undertakes to acquire ownership of the property specified by the lessee (hereinafter referred to as the ) from a seller specified by him and to provide this property to the lessee for a fee for temporary possession and use. The leasing agreement may provide that the choice of the seller and the purchased property is carried out by the lessor;

leasing activity is a type of investment activity for the acquisition of property and its transfer to leasing.”

Article 3 of the above law defines the subject of leasing:

« 1. The subject of leasing can be any non-consumable things, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property that can be used for business activities.

2. The subject of leasing cannot be land plots and other natural objects, as well as property that is prohibited for free circulation by federal laws or for which a special circulation procedure has been established.”

Now let's turn to Article 665 of the Civil Code of the Russian Federation. It says there that:

« Under a financial lease agreement (leasing agreement), the lessor undertakes to acquire ownership of the property specified by the lessee from a seller identified by him and to provide the lessee with this property for a fee for temporary possession and use for business purposes. In this case, the lessor is not responsible for the choice of the rental item and the seller.

The financial lease agreement may stipulate that the choice of the seller and the purchased property is carried out by the lessor.”.

As we see, the definitions of a leasing agreement differ only in terms of the line on the responsibility of the lessor (lessor). However, the fact is that in Law No. 164-FZ, issues of liability of the parties are highlighted in a separate article 10, which is called “Rights and obligations of participants in a leasing agreement.”

« The rights and obligations of the parties to the leasing agreement are regulated by the civil legislation of the Russian Federation, this Federal Law and the leasing agreement.

When leasing, the lessee has the right to present directly to the seller of the leased item requirements for quality and completeness, deadlines for fulfilling the obligation to transfer the goods and other requirements established by the legislation of the Russian Federation and the purchase and sale agreement between the seller and the lessor».

A leasing agreement is a type of rental agreement. Therefore, the general rules of a lease agreement also apply to a leasing agreement.

The current Russian legislation imposes a number of requirements on the procedure for carrying out leasing transactions.

First of all, this applies to the execution of a leasing agreement (financial lease agreement).

The concept of a financial lease (leasing) agreement reflects the triple nature of the leasing transaction:

1) the lessor (lessor) enters into an agreement with a supplier (selected by him or the lessee in accordance with the terms of this agreement) for the purchase of property leased;

2) the lessor enters into (in most cases) an agreement with the bank to obtain a loan to purchase this property;

3) the lessor enters into an agreement with the lessee (lessee) to lease this property.

Thus, the concept leasing activities can be defined as a type of investment activity for the acquisition of property.

The basic requirements for the form and content of the leasing agreement are established in Article 15 of Law No. 164-FZ.

The leasing agreement is concluded in writing. This requirement should be considered as a special norm established in addition to Article 609 of the Civil Code of the Russian Federation, which provides for general requirements for the form and state registration of a lease agreement:

« A lease agreement for a period of more than a year, and if at least one of the parties to the agreement is a legal entity, regardless of the term, must be concluded in writing. A real estate lease agreement is subject to state registration, unless otherwise provided by law».

And paragraph 1 of Article 15 of Law No. 164-FZ establishes the mandatory written form. In this case, it does not matter for what period the agreement is concluded, and what is its subject - movable or immovable property.

The leasing agreement presupposes the participation of third parties in its execution along with the lessor and the lessee. They are involved in its execution by concluding relevant agreements. Some of these agreements are mandatory for the legal qualification of a leasing transaction (leasing agreement), others are considered accompanying.

Compulsory An agreement is a purchase and sale agreement, which, as a general rule, is concluded by the lessor at the direction of the lessee with a certain seller and in relation to certain property. In this case, the lessor is not responsible for the choice of the leased item and the seller. At the same time, the financial lease agreement may provide that the choice of the seller and the purchased property is made by the lessor.

When concluding a purchase and sale agreement, the lessor is obliged to notify the seller that the property is intended to be leased to a certain person. This is stated in Article 667 of the Civil Code of the Russian Federation. If the lessor did not do this, then the concluded agreement is not recognized as a leasing agreement (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated April 3, 2001 No. F03-A37/01-1/442). However, the actions of the parties to actually carry out the transaction indicate the existence of rental relations between them with the right to purchase the leased property, which are regulated by paragraph 1 of Chapter 34 of the Civil Code of the Russian Federation.

In addition, failure to recognize the agreement as a leasing agreement does not entail the invalidity of the purchase and sale agreement, but affects the establishment of the seller’s liability to the lessee for the performance of this agreement (Article 670 of the Civil Code of the Russian Federation). Without this condition for the seller, the purchase and sale agreement must be qualified as a contract with execution to a third party, under which liability arises, as a rule, only to the buyer. When the requirements of Article 667 of the Civil Code of the Russian Federation are fulfilled, the purchase and sale agreement acquires the characteristics characteristic of contracts in favor of a third party (Article 430 of the Civil Code of the Russian Federation).

In accordance with Article 670 of the Civil Code of the Russian Federation, the tenant (lessee) has the right to present directly to the seller of the property that is the subject of the financial lease agreement, requirements arising from the purchase and sale agreement concluded between the seller and the lessor, in particular with regard to the quality and completeness of the property, the terms of its delivery, and in other cases of improper performance of the contract by the seller. In this case, the tenant has the rights and obligations provided for by the Civil Code of the Russian Federation for the buyer, except for the obligation to pay for the acquired property, as if he were a party to the purchase and sale agreement for the specified property. However, the tenant cannot terminate the purchase and sale agreement with the seller without the consent of the landlord.

In relations with the seller, the tenant and the lessor act as joint and several creditors (Article 326 of the Civil Code of the Russian Federation).

Unless otherwise provided by the lease agreement, the lessor is not responsible to the lessee for the seller's fulfillment of the requirements arising from the purchase and sale agreement, except in cases where the responsibility for choosing the seller lies with the lessor. In the latter case, the tenant has the right, at his own discretion, to present claims arising from the purchase and sale agreement, both directly to the seller of the property and to the lessor, who are jointly and severally liable.

Related include agreements on raising funds, a pledge agreement, a guarantee agreement, a surety agreement and others.

For example, the return of funds spent by the lessor on the purchase of equipment and leasing it can be ensured by a bank guarantee or a pledge of inventory and other property owned by the lessee or a third party. Guarantees from an insurance company, a third party or an executive authority can be accepted as security under a leasing agreement.

In order to raise funds, the lessor has the right to enter into an agreement on the pledge of the leased asset.

Based on paragraph 3 of Article 15 of Law No. 164-FZ, an essential condition of the leasing agreement is condition on the subject of leasing. The agreement must contain data that makes it possible to definitely establish the property to be transferred to the lessee as the subject of leasing.

In accordance with paragraph 4 of Article 15 of Law No. 164-FZ, on the basis of a leasing agreement, the lessor undertakes to acquire ownership of certain property from a certain seller in order to transfer it for a certain fee for a certain period, under certain conditions as a leased asset to the lessee, to fulfill other obligations arising from the content of the leasing agreement.

The lessor is obliged to provide the property that is the subject of leasing in a condition that complies with the terms of the leasing agreement and the purpose of this property (clause 1 of Article 17 of Law No. 164-FZ).

Clause 5 of Article 15 of Law No. 164-FZ established main responsibilities of the lessee.

Firstly, the lessee is obliged to accept the leased asset in the manner prescribed by the specified leasing agreement.

Secondly, the main obligation of the lessee under the agreement is the obligation to pay lease payments to the lessor in the manner and within the terms provided for in the leasing agreement.

Leasing payments mean the total amount paid by the lessee to the lessor for the right granted to him to use the property - the subject of leasing. Leasing payments are paid in the form of separate installments.

When concluding an agreement, the parties establish the total amount of leasing payments, the form, method of calculation, frequency and amount of leasing payments, as remuneration of the lessor, frequency and amount of payment of contributions, as well as methods of their payment.

Thirdly, upon expiration of the leasing agreement, the lessee is obliged to return the leased item, unless otherwise provided by the specified agreement, or acquire ownership of the leased item on the basis of a purchase and sale agreement.

Fourfold, fulfill other obligations arising from the contents of the leasing agreement. These include the obligation to make an advance payment or a security deposit, the obligation to conclude the leased asset in favor of the lessor.

The leasing agreement may also provide for the right of the lessee to extend the leasing term while maintaining or changing the terms of the leasing agreement (clause 7 of Article 15 No. 164-FZ).

Paragraph 6 of Article 15 No. 164-FZ of the leasing agreement may stipulate circumstances that the parties consider to be an indisputable and obvious violation of obligations and which lead to the termination of the leasing agreement and the seizure of the leased asset. An indisputable and obvious violation of the obligation in the Law “On Financial Lease (Leasing)” is considered as a basis for early termination of the leasing agreement and seizure of the leased asset at the request of one party. Currently, fixing the list of such circumstances in the agreement is left to the discretion of the parties, from which it can be concluded that we are talking about specific cases of a significant violation of the terms of any agreement (clause 2 of Article 450 of the Civil Code of the Russian Federation) or a lease agreement (Article 619 of the Civil Code of the Russian Federation), formulated in relation to to the features of the leasing agreement and the nature of the relationship between specific parties. From now on, such violations do not provide grounds for applying extrajudicial measures to the party, as provided for in the old version of the law. The only exception is the undisputed collection of debt on lease payments, but this does not involve unilateral termination of the contract and seizure of the leased asset. Such circumstances, regardless of whether they are provided for in the contract or not, now give the right to go to court with a demand to terminate the contract, withdraw the leased asset and compensate for the losses caused. The presence of such circumstances in the text of the contract relieves the party of the need to prove the materiality of the violation committed, since the parties agreed in advance to consider it an indisputable and obvious violation of the obligation, entailing early termination of the contract and withdrawal of the leased asset.

As for the termination of a leasing agreement in court, it is necessary to remember: the leasing law directly speaks only of the lessor’s right to demand early unilateral termination of the agreement (clause 2, article 13 of Law 164-FZ). But the conditions under which the leasing agreement ceases to operate on his initiative are not specified. However, the contract can be terminated unilaterally only through the court (clause 2, article 450 of the Civil Code of the Russian Federation). And only if the terms of the contract are significantly violated.

The Civil Code of the Russian Federation provides for such conditions for lease agreements, but leasing is one of its varieties (Article 625 of the Civil Code of the Russian Federation). The grounds for early termination of the lease agreement at the initiative of the lessor will be as follows:

The lessee uses the property for other purposes (clause 3, article 615 of the Civil Code of the Russian Federation, clause 1, article 619 of the Civil Code of the Russian Federation). Or it significantly deteriorates the property (clause 2, Article 619 of the Civil Code of the Russian Federation);

The lease payment was transferred in violation of the established deadline more than two times in a row (clause 3, Article 619 of the Civil Code of the Russian Federation);

The lessee does not make major repairs to the property, provided that this is his responsibility (clause 4, Article 619 of the Civil Code of the Russian Federation).

The Civil Code of the Russian Federation also gives the lessee the opportunity to terminate the leasing agreement ahead of schedule through the court unilaterally if:

The property was received without technical accessories and related documents (clause 2, Article 611 of the Civil Code of the Russian Federation);

The lessor did not provide the property on time or prevented its use (clause 3, article 611 of the Civil Code of the Russian Federation, clause 1, article 620 of the Civil Code of the Russian Federation, clause 2, article 668 of the Civil Code of the Russian Federation);

When receiving the property, deficiencies were discovered (clauses 2, 4 of Article 620 of the Civil Code of the Russian Federation);

The lessor does not make major repairs to the property, although this is his responsibility (clause 3 of Article 620 of the Civil Code of the Russian Federation);

The lessor did not warn the tenant about the rights of third parties to the leased property (Article 613 of the Civil Code of the Russian Federation). For example, the property transferred to the lessee is pledged.

Paragraph 1 of Article 450 of the Civil Code of the Russian Federation states that a contract can be terminated by agreement between the parties, unless otherwise provided in the Civil Code of the Russian Federation, other laws or in the contract itself. The Leasing Law also does not prohibit this option for terminating obligations. Therefore, if such a condition is specified in the contract, it is quite possible to do without a trial.

You can avoid litigation, even if the contract does not contain a provision for its early termination. The main thing is the presence of mutual desire of the parties. If there is one, the lessor and lessee can terminate the relationship at any time.

To do this, you just need to conclude an appropriate agreement, which will serve as the basis for reflecting the return of property to the lessor in accounting and tax accounting. Therefore, the termination agreement must indicate the date of termination of leasing, the procedure and conditions for the return of leased property, and the fate of unpaid lease payments.

Article 4 of Law 164-FZ defines leasing entities:

« Leasing subjects are:

lessor - an individual or legal entity who, at the expense of borrowed and (or) own funds, acquires ownership of property during the implementation of a leasing agreement and provides it as a leased asset to the lessee for a certain fee, for a certain period and on certain conditions for temporary possession and use with or without transfer to the lessee of ownership of the leased asset;

lessee - an individual or legal entity who, in accordance with the leasing agreement, is obliged to accept the leased asset for a certain fee, for a certain period and under certain conditions for temporary possession and use in accordance with the leasing agreement;

salesman - an individual or legal entity who, in accordance with the purchase and sale agreement with the lessor, sells to the lessor within a specified period the property that is the subject of leasing. The seller is obliged to transfer the leased item to the lessor or lessee in accordance with the terms of the purchase and sale agreement. The seller can simultaneously act as a lessee within the same leasing legal relationship.”

So, the subjects of leasing are: the lessor, the lessee and the seller.

They are direct (immediate) participants in leasing relations. Indirect participants in a leasing transaction are banks that lend to the lessor and act as guarantors in transactions, insurance companies, intermediaries, and leasing brokers. According to Russian legislation, such indirect participants are not classified as leasing entities.

Any of the leasing entities can be either a resident or a non-resident of the Russian Federation.

Example. From the consulting practice of JSC BKR "Intercom-Audit".

Question:

Can a State Institution (GI), which does not have the rights of commercial activity according to the charter, act as a lessee under a leasing agreement for the purpose of carrying out its tasks within the framework of the main activities of the GI?

Answer:

Law No. 164-FZ does not contain a direct indication of limiting the circle of persons who can act as lessees.

When solving this problem, it is necessary to examine the very concept of a state institution and its legal capacity in terms of concluding transactions with third parties, as well as the legal capacity of the institution in relation to the disposal of its property.

In accordance with paragraph 3 of Article 2 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Profit Organizations,” institutions are classified as non-profit organizations.”

According to Article 161 of the Budget Code of the Russian Federation (hereinafter referred to as the Budget Code of the Russian Federation), organizations endowed with state or municipal property with the right of operational management, which do not have the status of a federal government enterprise, are recognized as budgetary institutions.

A budgetary institution is an organization created by government bodies of the Russian Federation, government bodies of constituent entities of the Russian Federation, local governments to carry out managerial, socio-cultural, scientific-technical or other functions of a non-commercial nature, activities that are financed from the relevant budget or the state budget extra-budgetary fund based on estimates of income and expenses.

A budgetary institution uses budget funds in accordance with the approved budget of income and expenses. Federal Treasury of the Russian Federation or other body executing the budget, together with the main managers of budget funds determines the rights of a budgetary institution on the redistribution of expenses by subject items and types of expenses when executing the estimate.

Institutions, unlike other types of non-profit organizations, are not the owners of their property. The owner of the institution's property is its founder. Institutions have a limited right to the property transferred to them - the right of operational management (Article 296 of the Civil Code of the Russian Federation). Institutions that have property under the right of operational management own, use and dispose of it:

- firstly, within the limits established by law;

- secondly, in accordance with the goals of its activities;

- thirdly, in accordance with the owner’s instructions;

- fourthly, in accordance with the purpose of the property.

That is, an institution, in accordance with paragraph 1 of Article 298 of the Civil Code of the Russian Federation, as a general rule, is generally deprived of the right to dispose, including alienation, of any property assigned to it, unless we are talking about funds spent according to estimates.

However, an institution, with the permission of the owner, can engage in entrepreneurial activities and enter into relations with commercial organizations, if this right is provided for by the institution’s charter. Income received from such activities and property acquired from these incomes are at the independent disposal of the institution and are accounted for on a separate balance sheet. In this case, the institution is liable for its obligations with the funds at its disposal. If they are insufficient, the owner of the relevant property bears subsidiary (additional) liability for the obligations of the institution.

Subsidiary (additional) liability in accordance with Article 399 of the Civil Code of the Russian Federation means that before making claims against the owner of the institution’s property, the creditor must first make a claim against the institution. If the institution does not satisfy the creditor’s claim or the creditor does not receive a response from it within a reasonable time to the presented demand, this demand may be presented to the owner of the institution’s property.

Based on Article 50 of the Civil Code of the Russian Federation, non-profit organizations can carry out entrepreneurial activities only insofar as this serves to achieve the goals of their creation. That is, non-profit organizations can only carry out those types of activities that are specified in their charters (which is confirmed by Article 52 of the Civil Code of the Russian Federation).

In accordance with Articles 665, 666 of the Civil Code of the Russian Federation, under a financial lease agreement (leasing agreement), the lessor undertakes to acquire ownership of the property specified by the tenant from a seller specified by him and to provide the tenant with this property for a fee for temporary possession and use for business purposes. The subject of leasing can be any non-consumable things, including enterprises and other property complexes, buildings, structures, equipment, vehicles and other movable and immovable property that can be used for business activities.

The definition of the concept of entrepreneurial activity is contained in paragraph 1 of Article 2 of Part 1 of the Civil Code of the Russian Federation: 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. .

In this regard, and in accordance with Articles 665, 666 of the Civil Code of the Russian Federation, the conclusion of a leasing agreement presupposes the use of the leased asset by the lessee exclusively for business activities, which is not provided for by the charter of the institution.

Thus, we can conclude that budgetary institutions, like other non-profit organizations, can act as lessees, but only if the following conditions are met:

- the institution, in accordance with the law and constituent documents, has been granted the right to carry out entrepreneurial activities;

- the property received on lease is used by them within the framework of business activities carried out within the permitted limits.

In addition, the source for payment of leasing payments, in our opinion, should be funds received from the institution’s business activities (non-budgetary income), since the costs of paying leasing payments are borne not by the federal budget as a source of funding for statutory activities, but by the institution itself.

In the case of concluding a leasing agreement (if this occurs), an institution that does not have the right to engage in entrepreneurial activities, it is necessary, in our opinion, to take into account the following:

- are the costs of paying leasing payments included in the estimate of expenses and income of the institution (since there is liability for misuse of budget funds provided for in Article 15.14 of the Code of the Russian Federation on Administrative Offenses, Chapter 28 of the Budget Code of the Russian Federation, and if there is a crime of the Criminal Code of the Russian Federation) ;

- compliance of the transaction with Article 71.72 of the Budget Code of the Russian Federation, since all purchases of goods, works and services worth more than 2000 minimum wages are carried out exclusively on the basis of state or municipal contracts.

State or municipal contract - an agreement concluded by a state authority or local government body, a budgetary institution, an authorized body or organization on behalf of the Russian Federation, a constituent entity of the Russian Federation or a municipal entity with individuals and legal entities (on a competitive basis) in order to provide state or municipal needs provided for in the expenditures of the relevant budget and which includes a mandatory condition for the payment of a penalty.

End of the example.

As already noted, participants in leasing relations can be both legal entities and individual entrepreneurs. However, in most cases, leasing activities in the Russian Federation are carried out leasing companies and firms.

Leasing companies (firms) are commercial organizations (residents and non-residents of the Russian Federation) performing the functions of lessors in accordance with Russian legislation and their constituent documents. A leasing company - a non-resident of the Russian Federation is understood as a foreign legal entity carrying out leasing activities on the territory of the Russian Federation.

At the same time, the founders of leasing companies (firms) can also be legal entities and individuals (residents or non-residents of the Russian Federation).

To carry out their activities, leasing companies have the right to attract investment funds from legal entities and (or) individuals who are both residents and non-residents of the Russian Federation (clause 4 of Article 5 No. 164-FZ).

In a leasing transaction, the relationship between leasing subjects is built according to the following scheme:

1) a potential lessee interested in obtaining specific types of property (real estate, equipment, machinery), independently, based on the information, experience, recommendations, and results of previously reached agreements, selects the supplier who has this property. Due to the insufficiency of its own funds and limited access to credit resources for the acquisition of property or the absence of the need for a mandatory purchase of property, the lessee turns to its potential lessor, who has the necessary funds, with a request to participate in the transaction.

2) the participation of the lessor is expressed in the following:

Checking the compliance of the price agreed upon by the lessee with the current market level;

Purchasing the property needed by the lessee from a supplier or manufacturer on the basis of a purchase and sale agreement for the ownership of a leasing company;

Transfer of purchased property to the lessee for temporary use on the terms specified in the leasing agreement.

You can find out more about the features of leasing operations in the book of JSC “BKR-Intercom-Audit” “Leasing operations”.

First you need to define what leasing is.

Leasing is a certain form of credit that involves the purchase of a property from a leasing company and the subsequent transfer of this property for rent with a subsequent right of purchase. To be precise, say it. Leasing is a set of legal and economic relations that presuppose that the lessor must purchase property (which is indicated by the lessee) and provide the lessee with the right to use this property with the right of subsequent redemption. The contract may stipulate that the choice of the purchased property and the seller will be made by the lessor.

The leasing transaction involves:

• the lessee is usually a legal entity;
• the lessor, this may be a commercial bank or other non-bank credit organization;
• supplier or seller of the purchased property or equipment;
• insurer, it can be absolutely any insurance company.

Functions and role of participants in a leasing transaction

Lessee

He is an individual or legal entity who must accept the leased asset and pay a certain fee for it within a certain period. After he pays the leasing company the full cost of the purchased property or equipment, it becomes the property of the lessee.

Lessor

This is again a legal entity or individual who acquires, at its own expense (in some cases, these funds are raised), the property or equipment necessary for the lessee. The lessor then transfers the property to the lessee. And he gradually pays the leasing company the full cost of the property. Once the entire amount is paid, the lessor transfers ownership to the lessee. Also, a commercial bank, a non-bank credit organization and a leasing company can act as a lessor.

Supplier or seller

This legal entity or individual sells to the lessor the property that is the subject of leasing; this transaction is formalized under a purchase and sale agreement. The supplier or seller is obliged to transfer the property in accordance with the purchase and sale agreement. It may also be that the seller simultaneously acts as a lessee; this must occur within the framework of one leasing agreement. Any participant in a leasing transaction may or may not be a resident of the Russian Federation.

Insurer

The insurer is an insurance company, usually a partner of the lessor or lessee. It controls the transaction and insures transport, property and other types of risks that are associated with the subject or leasing transaction. When an agreement is concluded between the lessor and the lessee, the insurance company must draw up an insurance contract. It is not an insurer, it is not an obligatory participant in the leasing transaction, it may not exist. But in certain schemes, his participation is mandatory in order to protect property or equipment.

It turns out that commercial banks perform operations called leasing. In a leasing transaction, the bank needs to purchase equipment that the lessee needs and leases it to the lessee. And the lessee has the opportunity to buy the leased equipment. Not long ago, leasing was a new thing. But now, leasing is quite widespread, hundreds of organizations have appeared that provide their clients, that is, commercial organizations, with the service of concluding a leasing transaction. Most often, the lessee is a legal entity. In addition, leasing is currently separated into a separate division. Most often, existing credit organizations create wholly owned subsidiaries. Thus, it turns out to be a kind of department of the founding credit institution. Therefore, often the names of leasing companies begin with the name of the founding organization. Leasing includes a loan, rental and supply of equipment. Due to good development, leasing is no longer a single banking operation, but a separate specialized type of business. Nowadays, separate leasing companies are increasingly being formed, because it is not profitable for banks to carry out leasing themselves.

Question: what can be purchased through leasing?

Answer: You can lease any movable or immovable property used for business activities. This could be special equipment, buildings, transport, communications, aircraft, and so on. But it should be remembered that it is quite difficult to register real estate in a leasing transaction. This is explained by the fact that the minimum depreciation period for real estate is 10-12 years, while financial lease is 5-6 years. Leasing cars are considered the most popular now. Often, they are the property of the company, but in reality they are owned by the employees. But land plots and natural objects cannot be the subject of leasing, this also applies to property prohibited for free circulation, for example, weapons. Many enterprises at a certain stage of their development, this may be the creation and opening, expansion, technological renewal, come to the conclusion that it is more profitable to purchase equipment on lease. After all, the equipment will work, and it will be possible to pay money for its purchase gradually, in parts. This will help reduce the costs of the enterprise, but quickly acquire the necessary equipment or real estate.

Question: how exactly does a leasing transaction take place?

Answer. Let's assume that the company has chosen a suitable organization that provides leasing. Typically, a business needs to call the leasing company. Then representatives of the leasing company and the lessee must meet and discuss all the relevant details of the upcoming transaction. If all parties to the transaction are satisfied with the conditions and are ready to begin implementing the project, the lessee is asked to fill out a leasing application. Along with the application, the lessee must submit certain documents to the leasing company. They will be reviewed and carefully analyzed, and on their basis a final decision will be made on the provision of leasing, its additional conditions, and so on. Typically, analysis of provided documents takes about 10 days. But in some cases, reviewing documents may take more or less time, depending on the conditions.

Once the leasing company has decided to provide leasing, it is necessary to draw up and sign all the necessary agreements between the lessee, the lessor, the seller or supplier and, in some cases, the insurer. And after all the contracts have been signed, the leasing company acquires ownership of the necessary equipment. The purchased equipment must meet the requirements of the lessee. The equipment purchase and sale agreement must clearly indicate the seller’s responsibilities for the supply of equipment, the cost of the equipment, the payment procedure, equipment, quality, delivery, and on-site installation of the equipment. After this, the equipment is delivered to the enterprise or leasing company; this must be stipulated in the contract.

You can insure the purchased property. After the equipment is transferred for use to the lessee, he is fully responsible for the safety of the equipment, favorable storage conditions, and good operation of the purchased equipment or property. From the moment of receipt until the final payment of payments, the lessee uses the equipment for his own purposes, but paying monthly payments.

If the company does not make payments, the leasing company may well repossess the equipment and sell it to recoup its damages. And if the lessee has paid all payments on time and in sufficient quantity, then the property or equipment from the leasing company is transferred to the ownership of the lessee. All income and profits that were received during the operation of the leasing equipment are the property of the lessee. From all of the above, it is clear that leasing is not that complicated.

Now let's look at the main advantages and disadvantages of leasing and compare it with conventional lending

• The use of leasing allows the lessee to significantly save on taxes. For example, Chapter 25 of the Tax Code of the Russian Federation states that leasing payments reduce the tax base on profits. This shows that the state allows the expansion of production in a favorable way and directs all its resources to this. Thus, it is possible to introduce advanced technologies rather than spending money on paying taxes. The lessor has the same opportunity;
• Interest rates on leasing, as a rule, are 16-21% in rubles (and about 9-15.5% in foreign currency), which is 2-4% higher than rates under a loan agreement. This is due to the fact that the leasing company itself receives funds from the bank, which means that it must have a certain margin. But, despite this, leasing will still be more profitable, and the benefit will be 15-25%. Savings come from taxes, technical capabilities and other advantages;
• Leasing involves simply updating technological equipment, this in turn will increase and restore the company’s potential. With the help of leasing, you can quickly update equipment at an enterprise, although I do not have sufficient funds for this. And new equipment always means that the company will produce its products more efficiently and with better quality, and therefore increase its profits. Also, the lessee can more accurately plan his income and expenses;
• The lessee has limited liability, so risks are minimized. And the leasing company also reduces risks compared to a loan. After all, the leasing company registers the property as its own. And if the company can no longer pay the due payments, the equipment is seized and sold;
• Concluding a lease agreement is much easier than signing a loan agreement. Especially if leasing is necessary for small and medium-sized businesses. For such a business, getting a loan is not easy. The leasing company does not even require special conditions, because it already has a guarantee in the form of equipment;
• An agreement with a leasing company is more flexible than a loan agreement. The loan is usually issued for a limited period and amount of payments. And when concluding a leasing agreement, the parties can always agree and draw up a more convenient and beneficial agreement for themselves.

All of the above must be known to draw up a leasing agreement. In some cases, the benefits and conditions for obtaining leasing may differ from those stated above; this must be discussed with the specific leasing company. Most often, leasing turns out to be much more profitable than a conventional loan, this applies to both the leasing company and the lessee.